Living Will

What Is a Living Will and Why Is It Important?

Living Will - With Pen and Stethoscope

A Living Will conveys what is to be done once a person is incapacitated. Often part of the estate planning process, a living will is the directive given by a person while still alive that specifies requirements for end-of-life healthcare treatment. Preceding the “dying testate,” the living will is considered an important dimension of estate record. It reflects decisions about the administration and disposition of assets attached to a living trust. Living will administration is generally performed by a trustee who can be the creator of the trust, until they are incapacitated or pass on.

What is a Living Will?

The disposition of a person’s estate is controlled by a living will before they die. The U.S. federal Patient Self-determination Act (PSDA) of 1990 covers inclusion of living will directives by health care facilities responsible for the management of terminally Ill patient record. The Act provides that treatment decisions and powers of attorney decided by the patient be acknowledged as part of the patient record.

Decisions regarding healthcare arrangement and the payment of bills from estate income are basis for definition of the living will. The living will may also serve as estate directive after a decedent dies. Exception are circumstances where other formal provisions are put into place in accordance with the estate law rules of the jurisdiction where the person resides.

Advanced Directive Power of Attorney

A living will can be formed if the person whom it concerns is eighteen (18) years of age or older, and mentally competent (i.e., of reasonably sound mind). Rules of materiality dictate that a living will must be in written form. An “advanced directive” the living will is a healthcare declaration that Is also sometimes attached with power of attorney. Power of attorney assigns an agent to make decisions in the case a person becomes incompetent due to age or related healthcare issue. Death automatically cancels living trust power of attorney.

Why Third-Party Witnesses?

Most states require that a witness(es) be present to affirm estate planning record. Family members and designated beneficiaries attached to the estate of the person served by the living will, do not meet the criteria for witness participation. An estate can request revocation or codicil modifications to a living will at any time while the owner is still alive.

Why Life Insurance Is Not Enough

Life insurance trusts do not stand in lieu of a living will. Life insurance agreements are distribution vehicles to ensure proper transfer of insurance proceeds. However, a will allows an estate planner to set up a trust for incorporation of assets like insurance proceeds. The executor or trustee entity is responsible for the administration of income of a trust while its owner is still alive, and distribution of assets such as life insurance proceeds at end of life.

Why a Living Trust Typically Coincides with a Living Will

The benefit of setting up a living trust with a living will, is that an estate’s directives are consistent. A living trust makes it possible for an estate owner to stipulate transfer of assets to a trust, and income distribution to their spouse, beneficiaries, or themself for purposes of healthcare and medical treatment while they are still living. Part of the living testament of an estate, the living trust eliminates cost of probate and other infringements (i.e., creditor attachment), at the end of life. The living trust affirms priorities related to joint tenancy transfers, property settlement agreements, and inheritor provisions for spouses, children, and other designated beneficiaries.

A variation of the living trust, a self-declaration trust is administered by a trustee who has also created the trust. In such case, the trust agreement outlines procedures for removal the original trustee once incapacitated. Trustee transfer of power typically requires named family members, sometimes accompanied by a physician for determination of the proper “medical moment” correspondent to execution of trust transfer to the successor trustee named in the initial trust record. Transfer of the trust to a new trustee generally does not take place until a disability or death occurs, at which time the trust is fully active.

How to Create a Living will Before Planning an Estate

In the United States, individual states have separate rules for creation of a living will. For instance, some states require that a witness be present for medical power of attorney. Common requests contained within a living will are life-prolonging medical care (i.e., blood transfusions, CPR, diagnostic tests, dialyses, drug administration, respirator treatment, and surgery), and palliative care pain treatment. The living will can be accompanied by medical orders (i.e.., do not resuscitate order). A Physician Order for Life Sustaining Treatment (POLST) order signed by a doctor describes the medical treatment to be implemented in case of emergency.

A licensed estate law attorney providing financial planning and will services, can assist in the formation of a living will or living trust. If creating a living will without an attorney, signatory and notarization must be performed. Copies of a living will can be provided to family members, care facilities, hospitals, physicians, and health insurance agents. After the death of the decedent, the living will can be presented to a probate court if there is will contestation. Probate can lead to lengthy procedural review by a court without advance directives. Free living will guidelines are available at local hospitals, physicians’ offices, senior centers, and state medical associations. The National Hospice and Palliative Care Organization provides information about the steps for creation of a living will.

Taxation Issues Applying to Living Trusts

The living will and living trust have no federal Internal Revenue Service (IRS) tax significance. Trust income is reported on IRS form 1040 filings while the trust owner is still alive. Unless the creator of the trust, the trustee must file an annual IRS fiduciary return, form 1041. After death, any trust property of an estate not transferred to a living spouse protected by IRS marital deduction guidelines, is assigned tax. This includes asset transfers to final beneficiary children.

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