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Living Will and Last Will

Living Will and Last Will


Jennifer Mcgee


Updated on  

January 3, 2023

4 Mins


Whether it’s a Last Will or Living Will both help to lessen the burden on your family, friends, and loved ones to make any decision regarding your estate or health. 

But the biggest reason people do not have these crucial documents is because of a lack of awareness and insufficient online information, so, TrulyWill has taken this initiative to spread awareness.

In this article, you will not only learn the difference between Living Will and Last Will but also about the Advance Directives.

What is the Last Will and Testament?

A Last Will or simply Will is a legal document that contains the directions given by the testator (one who writes a Will) to fairly divide and distribute his property amongst his legal heirs, friends, family, and loved ones

Till the 18th-19th Century, a Will contained the wishes regarding the distribution of the property and estate whereas, a Testament was a document that contained only the plan regarding the distribution of jewelry, vehicles i.e. all the personal precious items. 

Nowadays, there’s no difference between Will and Testament. Now the same single document is used for Estate Planning for the distribution of the estate and other precious items.

What is the Living Will?

Living Will is a legal document in which you can plan the critical care to be given if there comes a situation where you are unable to give directions or convey your wishes due to any illness, old age, or physical or mental injury. 

Living Will saves you from outside interference and influence while making decisions for your medical treatment.

A new research study by the USC Leonard Davis School of Gerontology has revealed that Living Will save your time and money significantly in comparison to those who do not have one.

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“Should have done this before, had made it up to be really hard in my head. This was super easy!”

Who can make these documents?

In most States, the essentials to making a Living Will or Last Will or Advance Directive is that anyone can make these documents:

  1. Have attained the age of majority.
  2. Is of sound mind, meaning thereby that he knows the legal consequences of making these documents.

Difference between the Last Will and Living Will

This can be confusing, so here’s the difference between the Last Will and Living Will for your better understanding:

Last Will

Living Will

The Last Will contains the plan of distribution of the estate and property owned by the testator. 

The Living Will contains the plan or directives about the intensive or critical medical care to be taken of the testator in the future if he is incapable of communicating due to illness or injury, old age, or failing health.

It includes all his assets and valuable items.

It may also include the directions to follow at his funeral concerning the expenses or any other wish.

A testator may change or modify the Last Will as it deems fit.

A Living Will exists until the testator cancels it.

A Last Will goes into effect during the lifetime of a testator but on his death.

A Living Will goes into effect when the testator is alive but loses the capacity to decide on his medical or treatment.

If you want to know more about the Living Will, Advance Directives, and other documents and want to create your own Will, please keep reading till the end.

What is the Medical Power of Attorney?

Like Living Will, the Medical/Healthcare Power of Attorney (POA) is a legal document. POA allows you to shift the legal authority to someone else to make decisions concerning end-of-life care or medical care, treatment options, surgery, etc., on your behalf. A person authorized in POA is called the Attorney in fact or proxy/representative, or healthcare agent/surrogate.

What is the Advance Directive?

If a Living Will is combined with a POA, they together become an Advance Directive by a person concerning his medical care and treatment. All these three Living Will, POA, and Advance Directives are forms of Healthcare Directives. There are many other types of Healthcare Directives

Living Will v/s Medical POA

When the Living Will is paired with POA, it not only outlines the intensive end-of-life medical care to be given to the testator but also gives authority to someone they trust to make decisions on their behalf.

Living Will vs Power of Attorney

A POA comes into effect when a person loses his capacity to make decisions concerning his medical care and treatment, however, a Living Will comes into effect in an end-of-life medical crisis and to elongate the life span of the testator.

But the prevailing document here is the Living Will and preference will always be given to instructions given by the testator concerning the critical care in the Living Will but if any unexpected situation emerges which has not been addressed or covered under Living Will, then the Attorney or Healthcare Agent will take decisions on behalf of the testator. The doctors will look into the Living Will first to find the desires and wishes of the testator.

Is an Advance Directive the same as a Living Will?

An Advance Directive is sometimes even called a Living Will in some states. Although a Living Will and an Advance Directive are separate legal documents, the difference between both documents depends on the State one belongs to. But the major difference is the widening scope Advance Directives have compared to Living Will. The Advance Directive is such a powerful document that it does not leave any chance of carelessness or indecisiveness.

Living Will vs Advance Will

It can be a puzzle to understand because different states use different names for Living Will and Advance Directives in colloquial ways. In some States, Advance Directive and Living Will mean the same document or are used interchangeably. Even laws related to Advance Directive may vary from State to State. 

Other documents: POLST and DNR

Some other legal documents are technically not Advance Directives but play a similar role to protect the maker or testator from fulfilling his wish when he is incapacitated. Such documents are Physician’s Orders for Life-Sustaining Treatment (POLST), and Do Not Resuscitate order (DNR). But POLST and DNR both have a narrow coverage in comparison to the Advance Directive. 

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Frequently Asked Questions

Is Last Will and Testament same as Financial Power of Attorney?

Both the Last Will and Testament and Financial Power of Attorney documents will help you to protect your property legally and share many similarities. Still, they are not the same. A Power of Attorney is only valid till you are alive and the powers given under Power of Attorney cease right after your death. However, a Will isn’t valid till you are alive and only executes upon your death.

Is a handwritten Last Will legal?

A handwritten Will, also known as a holographic Will is an invalid Will as it is only signed by the testator (one who writes a Will). Some states allow a holographic Will, while others require a valid handwritten Will as holographic Wills are difficult to prove valid in probate court.

Is a Last Will legally binding?

A Last Will is legally binding if it is valid according to your state laws. Every state has different Laws for the validation of a Will.

Are Living Will and Advance Directives the same?

No, these are both different legal documents. But in some States, they are used as the same documents or are interchangeably used. When a Living Will is combined with Healthcare power of attorney is called the Advance directive.

How much does a Living Will cost?

Generally, Living Will costs from $100 to $1000 depending upon the State you are living in. However, you can make an online Living Will at a very affordable cost.
Jennifer Mcgee
Parent to five young children. Expert in Estate Planning, Probate, and Family Law Matters. Volunteer with Victim’s Advocates in the local sheriff's department...
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Jennifer Mcgree
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