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Should I have a living will?

Most Washingtonians understand the need for a testamentary will, i.e., a will that provides for the distribution of a person's property after death. But, very few understand the nature of a living will or the reasons why a person may wish to create one. Living wills are now regarded by most estate planning experts as an essential part of any estate plan.

The term "living will" generally includes two kinds of documents. One is a Health Care Directive. A health care directive expresses the drafter's wishes for medical care when death is near and when the person is unable to make crucial medical decisions themselves. The directive becomes effective only when a physician confirms the patient's condition is terminal or when two doctors confirm that the patient has no hope of regaining consciousness. A common purpose of a health care directive is to authorize withdrawal of care when the person has no hope of recovering from the disabling condition or illness. As with testamentary wills, the drafter of a health care directive must be at least 18 years old and must be able to comprehend the nature of the document. The signing of the directive must be witnessed by at least two people over the age of 18.

A durable power of attorney has much the same legal effect. The drafter of the document designates a person to make health care decisions if the drafter should lose the mental capacity to do so. The drafter of the durable power must specify the conditions regarding the health of the drafter that will make the durable power become effective. As with health care directives, the drafters of durable powers of attorney must be 18 and otherwise able to understand the effect of the document.

Both health care directives and durable powers of attorney can be important estate planning tools, and both can be modified at any time. Anyone wishing to learn more should contact an experienced estate planning attorney.

Source: Washington State Office of the Attorney General, "Living Wills," accessed on Jan. 29, 2018

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