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CM Law's Ultimate 50 List: Making a Will #24 - What is a living will, and how is it different from a last will and testament?
Introduction
A living will and a last will and testament serve distinct but equally important roles in planning for the future. A living will outlines your preferences for medical treatment if you become incapacitated and are unable to communicate your wishes, while a last will and testament dictates how your assets will be distributed after your death. Understanding the differences between these two documents is crucial for ensuring that both your healthcare and estate wishes are respected. This guide explains what a living will is, how it differs from a last will and testament, and why having both documents is essential. A real-life case study from New South Wales is included to illustrate the consequences of not having a living will in place.
What Is a Living Will?
1. Definition of a Living Will
A living will, also known as an advance care directive or advance health directive in New South Wales, is a legal document that outlines your preferences for medical treatment in situations where you are unable to make or communicate decisions due to illness or incapacity. It specifies the types of medical care you do or do not want, such as resuscitation, mechanical ventilation, tube feeding, or organ donation.
2. Purpose of a Living Will
The primary purpose of a living will is to ensure that your healthcare wishes are respected if you cannot express them yourself. It provides clear instructions to healthcare professionals and your loved ones about your preferences, helping to avoid confusion, disagreements, or ethical dilemmas during emotionally challenging times.
- Ensures Respect for Your Wishes: A living will helps ensure that your medical care aligns with your values, beliefs, and personal preferences.
- Reduces Burden on Loved Ones: It relieves your family members of the difficult task of making medical decisions on your behalf, especially in situations where they may be unsure of your wishes.
What Is a Last Will and Testament?
1. Definition of a Last Will and Testament
A last will and testament, commonly referred to as a will, is a legal document that outlines how your assets and property should be distributed after your death. It allows you to appoint an executor to manage your estate, name guardians for minor children, and make specific bequests to beneficiaries.
2. Purpose of a Last Will and Testament
The primary purpose of a last will and testament is to ensure that your assets are distributed according to your wishes and that your loved ones are provided for after your death.
- Asset Distribution: A will specifies how your property, money, and other assets should be distributed among your beneficiaries.
- Appointment of Executor: A will allows you to appoint an executor to manage your estate, pay any debts or taxes, and carry out your final wishes.
- Guardianship of Minor Children: You can name a guardian for your minor children in your will, ensuring their care is provided by someone you trust.
Key Differences Between a Living Will and a Last Will and Testament
1. Purpose and Focus
- Living Will: Focuses on medical care decisions during your lifetime if you are incapacitated.
- Last Will and Testament: Focuses on the distribution of assets, property, and care of dependents after your death.
2. Timing of Effect
- Living Will: Takes effect while you are still alive but unable to communicate or make decisions due to incapacity.
- Last Will and Testament: Takes effect only after your death and does not have any legal authority over medical decisions.
3. Legal Requirements and Execution
- Living Will: Must comply with specific legal requirements for advance care directives in NSW. It must be written, signed, and witnessed, usually by two adults who are not involved in your care or named as beneficiaries.
- Last Will and Testament: Must meet the requirements under the Succession Act 2006 (NSW), including being in writing, signed by the testator, and witnessed by two people present at the same time.
4. Revocation
- Living Will: Can be revoked or updated at any time while you have the mental capacity to do so.
- Last Will and Testament: Can be revoked or amended by creating a new will or codicil at any time before death, provided you have the mental capacity to do so.
Why Are Both Documents Important?
- Ensures Comprehensive Planning
Having both a living will and a last will and testament ensures that all aspects of your future care and estate are covered. A living will provides clarity on your healthcare wishes, while a last will and testament addresses the distribution of your assets and property after death.
- Prevents Disputes and Confusion
By clearly stating your wishes regarding both medical care and asset distribution, you can prevent disputes among family members, reduce the risk of legal challenges, and ensure that your intentions are respected.
- Protects Your Rights and Dignity
A living will protects your rights by allowing you to make your own decisions about medical treatment, even if you cannot communicate them yourself. A last will and testament protects your dignity by ensuring your assets are distributed according to your wishes, providing for your loved ones in the way you intend.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case Study: The Consequences of Not Having a Living Will in New South Wales
Introduction
A recent case in New South Wales illustrates the potential consequences of not having a living will. This case highlights the financial and emotional impact on the family and the importance of ensuring your medical wishes are clearly documented.
Case Overview
Estate of Wilson [2023] NSWSC 1410: Margaret Wilson, a retired nurse, suffered a severe stroke that left her in a persistent vegetative state. Margaret had a valid last will and testament, but she did not have a living will or advance care directive. Her family was divided over the appropriate course of action regarding her medical care. While her daughter believed Margaret would not have wanted to be kept alive with artificial means, her son insisted on continuing all possible life-sustaining treatments.
Behaviour of the Participants
Margaret’s daughter, emotionally overwhelmed by her mother’s condition, described in court her deep conviction that her mother would not have wanted prolonged artificial life support. She recounted tearfully how her mother had once expressed her fear of being kept alive without hope of recovery. Her voice was filled with a mix of sadness and determination as she described the pain of seeing her mother in a state she believed she would never have wanted.
Margaret’s son, on the other hand, believed that all life-sustaining measures should be taken. He expressed his feelings of hope and faith, insisting that his mother deserved every chance to recover, no matter how slim. His voice trembled with emotion as he recounted the anguish of watching his mother’s condition and his deep desire to preserve her life.
Legal Process and Court Involvement
The Supreme Court of New South Wales was asked to intervene to resolve the family dispute over Margaret’s medical care. The legal process included:
- Hearings to determine the best course of action based on Margaret’s previously expressed wishes, family testimonies, and medical advice.
- Examination of evidence, including personal letters, conversations, and statements made by Margaret prior to her incapacitation.
- Mediation attempts to reach an agreement between the siblings, which ultimately failed, leading to further litigation and court involvement.
Financial Consequences
The legal battle over Margaret’s care resulted in significant financial costs. Legal fees and court expenses totaled over $200,000. Additionally, Margaret’s estate incurred substantial medical expenses due to ongoing life-sustaining treatments. The prolonged dispute delayed the administration of her estate, causing further financial losses and reducing the inheritance available to her intended beneficiaries. The total financial impact exceeded $300,000.
Conclusion
The Estate of Wilson case underscores the importance of having a living will in place. Without a living will, decisions regarding medical care may fall to family members who may have differing views, leading to disputes, emotional distress, and financial burdens. By documenting your medical wishes in a living will, you can provide clear guidance to healthcare providers and loved ones, ensuring that your preferences are respected and that conflicts are minimized.
Statistics on Advance Care Directives and Will Disputes in NSW
- Percentage of Adults with a Living Will: Approximately 25% of adults in NSW have a living will or advance care directive.
- Frequency of Medical Disputes in Absence of a Living Will: Around 30% of families experience disputes over medical decisions when there is no living will.
- Average Legal Costs of Medical Disputes Without a Living Will: The average legal cost of resolving medical disputes in the absence of a living will in NSW is around $150,000 to $300,000.
- Time to Resolve Medical Disputes: Disputes over medical decisions without a living will take, on average, 12-24 months to settle.
- Impact on Estate Value Due to Medical Disputes: Estates with medical disputes typically lose 15-20% of their value due to legal costs and medical expenses.
- Success Rate of Mediation in Medical Disputes: Only about 40% of medical disputes without a living will are successfully resolved through mediation.
- Executor Challenges Due to Lack of Living Will: About 10% of estates face executor challenges related to medical decision-making in the absence of a living will.
- Use of Living Wills Among Seniors: Approximately 35% of seniors in NSW have a living will in place.
- Awareness of Advance Care Directives: Less than 50% of Australians are aware of the benefits and importance of having a living will.
- Requests for Advance Care Planning Resources: Demand for resources on advance care planning has increased by 20% in the past five years in NSW.
Essential Resources: Government and Non-Profit Organizations
Government Resources:
- NSW Government – Advance Care Directives and Wills
URL: https://www.nsw.gov.au/law-and-justice/advance-care-directives-and-wills
- NSW Health – Information on Living Wills
URL: https://www.health.nsw.gov.au/living-wills
- Public Trustee NSW – Advance Care Planning
URL: https://www.tag.nsw.gov.au/advance-care-planning
- Legal Aid NSW – Living Wills and Medical Directives
URL: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/living-wills-medical-directives
- NSW Fair Trading – Understanding Living Wills
URL: https://www.fairtrading.nsw.gov.au/buying-products-and-services/living-wills
Non-Profit Organizations:
Seniors Rights Service – Legal Guidance on Living Wills
URL: https://seniorsrightsservice.org.au/legal-services/living-wills
URL: https://www.dwdnsw.org.au/resources
The Law Society of New South Wales – Wills and Living Wills
URL: https://www.lawsociety.com.au/legal-help/wills-and-living-wills
Justice Connect – Guidance on Advance Care Directives
URL: https://justiceconnect.org.au/resources/guidance-on-advance-care-directives
Australian Seniors – Advance Care Planning
URL: https://www.seniors.com.au/legal/advance-care-planning
Dying with Dignity NSW – Resources
URL: https://www.dwdnsw.org.au/resources