Living wills take guesswork out of medical care

METRO DETROIT — While everyone hopes for the best of health, legal experts say that crafting a “living will” — and deciding who has the medical power of attorney to act on it — is a plan worth having.

Elizabeth Vincent has been a practicing attorney for 13 years and has specialized in estate planning her entire legal career. Her current practice focuses exclusively on the subject.

She explained that a living will is different from a last will and testament in that a living will states the signer’s desires regarding life-sustaining medical treatments.

A last will and testament, meanwhile, provides guidance to the signer’s family regarding the distribution of the signer’s estate through the probate court.

She noted that living wills are utilized in medical cases where the signer cannot communicate their wishes regarding treatment.

“It’s something that many think their family members can just figure out in the moment, but I feel it’s unfair to place that burden on loved ones when we’re talking about something as personalized as medical care,” Vincent said.

Living wills are often drafted in conjunction with a designated medical power of attorney — the decision-maker who can act on the signer’s behalf. Both are included in an estate plan, providing guidance to family members making decisions.

The goal is to eliminate guesswork during what is already a stressful situation.

“A living will, however, is not a legally enforceable document, unlike a medical power of attorney,” Vincent cautioned, noting it can only advise loved ones on how to proceed.

Still, that guidance can make a world of difference. The document lists specific directives with the signer’s preferences — for example, whether they would accept using a ventilator and for how long. Other preferences could be about types of pain relief, the use of feeding tubes, or even when or whether to terminate life support.

As for organ donation, that is decided by the person with medical power of attorney, Vincent said, and not included in a living will.

“In my practice, when medical powers of attorney are discussed and life-sustaining procedures are addressed, we go through a prepared estate planning homework to discuss the client’s wishes,” Vincent said. “We charge a flat fee for estate planning, which varies based on the client’s goals and overall needs. A case-by-case assessment is done in an initial consultation with each client.”

She said the medical power of attorney is an equally important decision.

“The biggest consideration I advise my clients to make is to appoint the correct person to make these decisions for them, and to ensure that the person whom they appoint is someone who will follow through on their wishes, regardless of their personal feelings,” Vincent said.

“Withholding life-sustaining care is a difficult call to make, whether you have someone’s wishes or not, and appointing an individual who cannot come to terms with a family member’s decisions can result in unnecessary delays,” she said.

It’s an uncomfortable scenario to imagine, but she said there’s comfort in having a guide for others to follow, should things take a turn for the worse.

“One of the best gifts a person can give their family is to have a comprehensive estate plan prepared with an experienced estate planning attorney,” Vincent said.

Troy-based attorney Ren Nushaj agreed, saying that a living will and designated medical power of attorney brings “immense peace of mind” to the signer and their family.

“It removes uncertainty during moments of great difficulty and ensures that medical decisions reflect the patient’s own values and wishes,” Nushaj said in an email. “For loved ones, it eliminates the burden of making agonizing choices in the dark and allows them to focus on supporting the person they care about with clarity and confidence.”