You’re probably familiar with a Last Will and Testament and what it is supposed to do, but do you know what a Living Will is and what it does? Although these are two different (yet equally important) documents, both have an important role in estate planning.
We’re often asked what the difference is between a Last Will and a Living Will (people sometimes conflate the two documents as being the same). A Last Will and Testament is a document which looks after matters relating to your estate, assets and other particulars. This document allows you to appoint an individual as your Executor (or Trustee) to disperse your estate, assets and other particulars when you pass. It also allows you to appoint a Guardian for your underage children, leave behind specific gifts, and instruct how you want your charitable donations to be dispersed. It also has to be witnessed and signed correctly. This document only becomes enforced after you pass on.
A Living Will, on the other hand, activates while you are alive. It is an equally important document, relating to matters regarding your health and how you want to be treated for your medical matters. This includes: appointing someone to speak on your behalf (if you are unable); your life support options; specifying your wishes on organ donation; DNR clauses; your thoughts on various medical treatments; detailing what your Attorney (the person who is appointed by you to speak on your behalf) can and cannot do, and specifying if the individual whom you have appointed to speak on your behalf is liable for anything.
The name of this specific individual you have appointed may vary from province to province (in some provinces, he or she may be known as a “proxy”). A Living Will has to be properly witnessed and signed, the same way a Last Will and Testament has to be properly witnessed and signed, in order to be valid.
In Canada, the requirements for making a Living Will valid may vary from province to province, so it’s important to follow all of the instructions as provided. You can create your Living Will using online software. These are two different documents. We often have people who confuse the two documents as being the same. People are not always aware that the documents are different.
A Living Will would come into effect only if you become incapacitated or unable to speak on your behalf. If, for instance, you are in a coma or are experiencing the effects of Alzheimers, your “Attorney” will express your wishes through the document you have created. He or she will convey your wishes to the doctors looking after you. Essentially, a Living Will (much like that of a Last Will), speaks for you when you cannot.
A Living Will should also not be confused with that of a Power of Attorney; both documents activate while you are alive, and while one is related to matters regarding your health, the other (a Power of Attorney) is related to your finances.
A Living Will can also be changed and modified while you alive. It should be periodically looked over and updated as your life circumstances change. Living Wills and Last Wills do not expire, so if you want to make changes to your document, be sure to update them both as you see fit.