In today’s video, we’re going to talk about the five living will mistakes you’ll want to avoid. I’m Paul Bernstein of the Bernstein Law Group. And when clients come in to talk to us about their estate plans, one document that frequently gets discussed is something known as a living will.

1. Often confused with the last will

The first mistake regarding this particular document is the confusion that the name ends up causing. It has the term will in it, yet a living will is very different from a last will and testament. So that’s the first mistake, the confusion of those two documents. A last will and testament is about inheritance of property going through probate.

What a living will really is

A living will is a statement of intention that you wouldn’t want extraordinary medical measures taken if you can’t communicate and your condition is terminal and incurable, or if you’re in a permanent vegetative state. Instead, you’d want them removed. My clients often call it the pull-the-plug document.

2. The living will has no authority to force a decision

The second mistake is what you may think it means if you have a living will, i.e., a document that says don’t keep me going under these medical circumstances. You may believe that if you can’t communicate, the doctors will automatically just comply with that document and not even listen to what the family has to say.

In Massachusetts, that’s not true at all. In Massachusetts, your healthcare agent on a health care proxy axis is the one that has the legal authority to make the end of life decisions. The living will has no legal authority that would force that to happen in Massachusetts. So the second mistake is the incorrect belief that having a living will takes the decision from your family.

3. Not having a pregnancy override clause

The third mistake is if the particular client might be pregnant. So maybe it’s a younger client. If they have a living will, and it says if I can’t communicate and my condition is terminal and incurable, and I’m in a permanent vegetative state, I don’t want extra ordinary medical measures taken.

Well, if that client is pregnant, the situation might be very different, especially if the baby could eventually be carried to term and be born. So the third mistake in the living will is not having a clause that we call a pregnancy override clause.

The pregnancy override clause says, if I’m pregnant and the situation is normally a situation where I would want you to pull the plug, absolutely don’t pull the plug if the baby can come to term if you keep me alive. So that clause is saying, keep me alive until the baby’s born.

And then, once the baby is born, it returns to the normal living will language of removing the extraordinary medical measures that have been put into place. It’s a very, very important clause.

4. Including too many details

The fourth mistake is putting too much in the way of details in your living will. Some people put in a significant amount of details. Here’s what I want in this situation and in that situation. We’ve had clients that are doctors looking at that type of living will and saying they won’t sign it. And when I asked them, why won’t you sign? It is really, really thorough. They said, because you can’t list every possibility.

From a medical perspective, that would result in someone being placed on life support. And I, as a physician, if I saw a document and the condition that we’re faced with isn’t on that document, I’d have to assume you thought about it and purposely left it off because you wanted to be kept alive. So we don’t want to have details in that living will. You can put the details somewhere else, but you don’t want them in the living will.

5. Not having a living will at all

The fifth and most important mistake is not having a living will at all. They’re so important. I just discussed reasons why they’re not legally binding in Massachusetts. So why are they important? Because at the end of the day, what a living will is doing is removing some of the burden of what has to be the most difficult burden that a human could have.

Is it really time to let them go? By having a living will that states your intention, whether it’s that you don’t want to be kept alive under those circumstances, or you would under certain circumstances, you’re removing at least some of that burden. It’s a gift to the family, especially the person making that decision.

It also might minimize some friction that could happen in this very volatile, emotional time where certain family members might think differently. You have a document that’s signed and notarized and witnessed, saying here’s what I would want that hopefully will minimize a lot of that potential friction and fighting between family members.

It’s acritical communication tool and an amazing gift to your family and actually to yourself as well. So those are the five mistakes you should avoid with a living will. I hope you found this information helpful. If you have any other questions or you’re just not sure what to do, feel free to reach out to us.

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