Legal terms are confusing and one of the most confusing terms is “living will,” a term that I would very much like to send to the garbage heap of words.
People often believe that when they have signed a living will that they have some kind of estate plan in place that would help them in a time of crisis. Sadly, nothing can be farther from the truth.
A living will is a very limited scope document intended for one purpose only—to inform healthcare workers how you want to be treated when you are dying. That’s it. The living will is strictly intended to help make sure what you want to happen when you die happens, so that you’re not left as a potted plant in a nursing home, draining resources away from your loved ones and suffering needlessly.
The proper legal term for a living will is “Directive to Physicians.” While a Directive is a critically important document when it’s needed, it’s not a Will like a Last Will & Testament, which is a document that disposes of our assets after a probate proceeding. A living will is a healthcare document. A Will is a wealth transfer instrument (and not the most powerful one in our quiver for that matter).
Years ago, a family member of mine held up a document and said, “See? I have a Will.”
“That’s not a Will!” I wanted to shout in frustration. Instead, I calmly explained that it was a living will and is not the same as a Will. My family member had believed that the document in his hand was all he needed to make sure his family didn’t have to go to court if he died.
What he had was a document someone printed out online and had him sign. He hadn’t even read it. The living will itself was a terribly written document that didn’t do what he thought it did. That was a disaster waiting to happen—fortunately that won’t happen because we were able to help him get the right plans in place before anything bad happened.
Another misconception is that people believe that getting a Will in place is all they need to do. But a Will is not, by itself, an estate plan. A Will is merely one document among many that comprise a solid plan. There’s so much mis- and incomplete information online today that people really believe they can get by with a Do-It-Yourself estate plan, not knowing anything about how property is titled, what the legal effects of each document are, and how institutions interact with estates during disability or at death.
A REAL estate plan is not a document. It’s an emergency response structure for any kind of emergency. A real plan is designed, thought out, and carefully engineered to provide for ourselves and our loved ones without court intervention, reducing drama between family members, and making life easier in a tragic situation.
A REAL estate plan is created by a professional who doesn’t just dabble in planning for death—it’s a plan that can be deployed when things don’t go as we expect, so that we don’t have to look around every corner wondering if the next bus that passes us is the last bus we’ll ever see.
A REAL estate plan includes a Living Will, a Will, and many other instruments and vehicles that carry out the design you and your attorney crafted together.
A REAL estate planner is someone who spends time with you to understand what your wishes and vision are for your family and designs a plan you can understand.
A REAL estate planner is not a general practitioner or an hourly biller that can’t tell you how much a plan will cost or how it should be maintained.
A REAL estate plan is a process. It should take more than one meeting and include a significant education for you as the head of your household so you know how to approach the way you own property and how you’ll transfer that to the right people if something happens to you.
A REAL estate plan is a project that parents take on as one of their most important tasks as adults—to carefully provide for our loved ones.
A REAL estate plan captures your intangible wealth, not just your monetary wealth. It makes sure your kids know more of who you are at your core—in the event you’re not here to share your wisdom with them in person. Your plan will share some of your most important values in an interesting and valuable way.
A REAL estate plan is not cheap. And it shouldn’t be. Because you matter. What you do and how you do it are important to someone other than you.
A REAL estate plan is an act of love and devotion. It announces to your family and the world that you mean business in your life—that you’re not kidding around or playing small. You are important. To your family and your community.
Creating an estate plan not only serves your family in an emergency, it is a critical step in your development as a parent. Take it seriously.