Will vs. Living Will. What is the Difference.

Some people interchange will with a living will, but these are two completely different legal documents. A will, also called a last will and testament, provides your direction on who receives your property when you die. A living will is part of an advanced directive where you direct the kind of healthcare treatments you’d like to receive when you are incapacitated to make such decision.

Will

A will is a legal document you sign, where you state the persons who you want to receive your property. If you don’t sign a will in your lifetime, then the state will give your property to your closest living relatives in the order provided under state law. In that case, you will be considered to have died intestate. In New York, the persons who receive your estate when you die without a will are provided under EPTL § 4-1.1.

In order for your will to be valid, it must comply with the following requirements under New York state law:

1. Testator must be at least 18 years old and of sound mind and memory. EPTL § 3-1.1.
2. Testator signs the will at the end. Another person can sign the will in the name of the testator, but the signing must be done in the testator’s presence and under the testator’s direction. That person must also sign his own name. EPTL § 3-2.1(a)(1).
3. Testator must sign in the presence of two witnesses or must acknowledge to each of the two witnesses that the signature in the will is his. EPTL § 3-2.1(a)(2).
4. Testator must declare to the witnesses that the instrument he is signing or has signed is his will. EPTL § 3-2.1(a)(3).
5. Two witnesses must, within 30 days from each other, attest the testator’s signature as affixed or acknowledged in the witnesses’ presence. EPTL § 3-2.1(a)(4).

Living Will

A living will, as opposed to a will, is a document you execute that provides for written instructions regarding your health care wishes. It is usually part of an advanced directive, which is a set of legal documents that deals with your healthcare. In New York, an advanced directive may include the living will, the health care proxy, and the do not resuscitate order. You can also include the DNR order in your living will.

The living will becomes effective when you become incapacitated to make or communicate your medical decisions, i.e., when you are in a coma. It should not be confused with the health care proxy. The healthcare proxy is a document you sign authorizing another person to make your healthcare decisions in case you are incapacitated.

If you trust your health care proxy enough to make the correct decisions for you, then you can simply execute the health care proxy without the living will. However, if you would like your health care proxy to be guided or to make decisions within the framework of your living will, then you should execute both the living will and the health care proxy and state the limitations of the decisions your health care proxy can make within the framework of your living will.

For this reason, a living will and a healthcare proxy are usually signed together. The healthcare proxy makes your medical decisions based on the instructions you have left in your living will. You usually give a copy of your living will and healthcare proxy to your doctor.

Although advanced directive forms are available in the internet, having an estate planning lawyer draft your estate planning documents and customized it based on your objectives and requirements is recommended. Should you need more clarifications on a will vs living will or seek assistance in drafting estate planning documents, the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

What a Living Will Typically Addresses

A living will, also called a health care directive or advance directive, addresses specific medical scenarios:

• Life-sustaining treatment. Whether mechanical ventilation, dialysis, or other life support should be used if the patient cannot recover.
• Artificial nutrition and hydration. Whether feeding tubes should be used when the patient cannot eat or drink.
• Cardiopulmonary resuscitation. Whether CPR should be attempted if the patient's heart stops.
• Pain management. Preferences about pain medication, especially when it might shorten life.
• Organ donation. Wishes about organ and tissue donation.
• Specific medical conditions. Instructions for specific scenarios like terminal illness, persistent vegetative state, or severe brain injury.
• Religious considerations. Treatment preferences based on religious beliefs.

The Health Care Proxy in New York

New York Public Health Law § 2981 governs health care proxies. The proxy authorizes a designated agent to make health care decisions when the principal cannot. Key features:

• Must be in writing and signed by the principal.
• Must be witnessed by two adults who are not the agent.
• Takes effect when the principal cannot make decisions (determined by a physician).
• Can be revoked at any time the principal has capacity.
• The agent's authority is broad but subject to specific limitations the principal includes.
• The agent must follow the principal's known wishes if any.

The health care proxy is the most important advance directive for most people. It puts decision-making authority in the hands of a trusted person who knows the principal's values and preferences.

The MOLST Form

For seriously ill patients, New York offers a more specific document called the MOLST (Medical Orders for Life-Sustaining Treatment). The MOLST is:

• A medical order signed by a physician.
• Used for patients with serious illness or frailty where death may be near.
• More specific than a living will, addressing specific clinical scenarios.
• Honored across care settings (hospital, nursing home, home).
• Updated periodically as the patient's condition changes.

The MOLST supplements rather than replaces the living will and health care proxy. It addresses the specific situations most likely to arise for the patient based on their current medical condition.

DNR and DNI Orders

Specific orders that may be part of an advance directive:

• Do Not Resuscitate (DNR). Instructs medical providers not to attempt CPR if the patient's heart stops.
• Do Not Intubate (DNI). Instructs providers not to insert a breathing tube.
• Do Not Hospitalize (DNH). Instructs providers not to transport from a nursing home to a hospital.

These orders are typically medical orders signed by a physician based on the patient's stated wishes. They are honored across health care settings.

How Wills and Living Wills Work Together

Wills and living wills address different time periods and different issues but should be coordinated:

• The living will operates during the patient's life when they cannot make medical decisions.
• The will operates after death to distribute property.
• Both should be in place simultaneously as part of a comprehensive plan.
• Both should name people you trust to make decisions.
• Both should be reviewed and updated regularly.
• Both should be stored where they can be found when needed.

HIPAA Authorization

The Health Insurance Portability and Accountability Act (HIPAA) restricts who can access medical information. A specific HIPAA authorization permits release of medical information to designated individuals. This authorization:

• Operates separately from the health care proxy.
• Allows medical information sharing even when the patient has capacity.
• Can name multiple individuals.
• Helps family members support the patient's care.

HIPAA authorizations are often executed alongside health care proxies to ensure designated individuals can access medical information when needed.

Common Mistakes in Living Wills

Common mistakes that reduce the effectiveness of living wills:

• Vague language. "I don't want to be kept alive by machines" is ambiguous when the question is whether a ventilator for a few days might allow recovery.
• Failure to communicate with the proxy. The agent doesn't know the principal's actual wishes beyond the document.
• Inconsistency with the proxy's authority. Detailed instructions in the living will may conflict with the agent's discretion under the proxy.
• Not updated as health changes. Instructions appropriate for general planning may not fit specific medical situations that develop.
• Hidden or lost documents. Documents that cannot be found when needed are useless.
• Not provided to medical providers. Even valid documents must be accessible to the people who will act on them.

Specific Religious Considerations

Many advance directives address religious considerations:

• Jewish patients may want specific provisions about post-death handling consistent with religious requirements.
• Catholic patients may want directives consistent with Catholic teaching about end-of-life care.
• Jehovah's Witnesses typically include refusal of blood transfusions.
• Muslim patients may want provisions consistent with Islamic principles.
• Buddhist patients may have specific preferences about pain management and consciousness at death.

The advance directive should reflect the patient's religious values. Standard form documents may not adequately address specific religious considerations.