Differences Between a Last Will and Testament vs. Living Will

Estate planning isn’t just about what happens after you’re dead. Portions of a complete estate plan, including a living will, can fill the gap left if you become unable to care for yourself or make decisions about your health and finances due to illness or incapacitation. Understanding the differences between a Last Will and Testament vs. living will can help you make sure your estate plan is complete and your wishes will be honored in your final days, and after you have passed away.

What is a Living Will?

A living will is a type of health care directive or “Advance Directive.” As the name implies, this is an estate planning document that describes what you want to happen regarding your health care while you are still living. A living will can guide your family, spouse, or designated health care surrogate to make treatment decisions for you when you are no longer able to make them yourself. It includes instructions for your end-of-life care, including whether you want to be resuscitated or kept alive in a persistent vegetative state. Think of it like writing out your health care instructions in advance. A living will allows you to document your care preferences for everything from blood draws to life-prolonging procedures such as ventilators or “heart and lung” machines.

There are many reasons why a patient may want doctors to do less than everything they can to sustain the patient’s life as long as possible. Your choices about what treatments you want may be affected by:

• Your religious beliefs
• The balance between length of life and quality of life concerns
• Side effects and complications from proposed treatments
• Financial resources and a desire to leave a legacy for family
• Moral decisions such as organ donation or the use of experimental treatments

A living will ensures that your doctors and the person (or people) making treatment decisions can keep your priorities in mind. By taking the time to consider your options in advance, you can give thoughtful consideration to your desires and priorities, and even talk to your doctor about the risks and benefits of any proposed treatment plan.

By documenting your preferences in advance, you also take the weight off of the shoulders of your next of kin or designated healthcare surrogate to say when treatment is too much. It can be hard for some people to say goodbye to their loved ones. The desire to avoid loss can result in life-prolonging treatments that increase suffering or go beyond your wishes. A living will can give your loved ones the permission they need to let go when the time is right.

What is the Difference Between a Living Will vs a Last Will and Testament?

While a living will directs what happens to you while you are still living, a Last Will and Testament describes your “last wishes” to resolve your affairs after your death. This could include your funeral and burial wishes, and can also name a guardian to care for your children or dependents. Your Last Will and Testament will also name a personal representative (or executor) to oversee the distribution of your assets after your death according to the terms you lay out in the Will.

The difference between a Last Will and Testament vs. living will is whether the document is effective while you are alive or after your death. Under Florida state law, a living will goes into effect when you become incapacitated. That means you are “physically or mentally unable to communicate a willful and knowing health care decision” due to a terminal condition, an end-stage condition, or a permanent vegetative state (persistent unconsciousness).

In contrast, a Last Will and Testament cannot be used or enforced while you are still alive. It only becomes effective after your death. Once your Will has been submitted to the Florida probate court along with a death certificate, an estate administration attorney can help your personal representative prepare an inventory of your assets, and put your last wishes into action.

Do You Need Both a Last Will and Testament and a Living Will?

A complete estate plan generally includes both a Last Will and Testament and a living will. That is because knowledgeable estate planning attorneys want to make sure your wishes are honored throughout your life and after your death. Because a Last Will and Testament is not enforceable during your lifetime, you can’t just include care provisions in your Will and hope your doctors will honor them.

Similarly, a living will is only enforceable up to the point of your death. Some hospitals and medical providers will honor requests for funeral and burial preferences included in a living will, but for the most part, anything that is supposed to happen after your death should be included in your Last Will and Testament, rather than your living will.

At Harrison Estate Law, we want to help you make honoring your wishes easy for your family and loved ones. We will be happy to meet with you to review your end-of-life wishes, crafting a living will, a Last Will and Testament, or both as part of a complete estate plan. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call. Evening and weekend appointments are available upon request.