Difference Between a Last Will and a Living Will

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Difference Between a Last Will and a Living Will

Difference Between a Last Will and a Living Will

A Last Will and a Living Will manage different aspects of your life, but both ensure your wishes are respected when you are no longer able to express them. A Last Will determines who inherits your property and assets after you pass away, while a Living Will outlines your preferences and instructions for the provision future medical treatments and care, in the event you are unable to communicate your decisions to healthcare professionals and loved ones.

What is a Last Will and Testament?

A Last Will and Testament, often simply called a Will, is a legal document that describes how you would like your property and assets to be distributed after your death. The individual who creates a Will is referred to as the "testator", while those designated to receive assets under the Will, are referred to as the "beneficiaries". The Will allows the testator to specify the distribution of their estate, including real property, financial accounts, personal possessions, and other assets following their death.

In addition to distributing assets, a Will also enables you to:

• Appoint an Executor: an executor will be responsible for administering and carrying out the instructions contained in your Will. The executor will handle tasks such as distributing assets, paying outstanding debts and taxes, and managing other administrative duties related to the estate.

• Nominate Guardians: Name guardians to care for your minor children, dependents, or pets, ensuring that their care is provided for in the event something happens to you.

Dying without leaving a valid will is referred to as dying “intestate”. If you pass away without a valid Will, your estate will be distributed according to the intestacy laws of the applicable provincial jurisdiction. These statutes determine the allocation and distribution of your assets, which may not reflect your personal wishes and may result in the unintended distribution of your estate contrary to your preferences. In the province of Ontario, the Succession Law Reform Act, R.S.O. 1990, c. S.26, will determine the distribution of your estate in the event you pass away without a valid Will.

What is a Living Will?

A Living Will, sometimes referred to as an Advance Healthcare Directive or Medical Directive, is a legal document that outlines clearly your preferences concerning medical treatment in the event you become incapacitated and are no longer able to communicate your wishes with respect to your care. This document provides guidance to healthcare providers and your designated agents regarding the type of medical procedures you wish to receive or decline under specific circumstances. Unlike a Will, which takes effect after death, a Living Will comes into effect during your lifetime if you’re seriously ill, in a coma, or otherwise incapacitated, rendering you unable to make decisions about your healthcare.

A Living Will enables you to articulate your preferences for medical procedures, including but not limited to:

• The use of breathing tubes or ventilators to extend your life;

• The use of feeding tubes to keep you alive;

• Directions with respect to blood transfusions and dialysis (to support kidney function);

• Types of pain management you want to receive or reject;

• Preferences regarding resuscitation efforts and the administration of life-sustaining treatments;

• Instructions with respect to organ donations;

• Decisions regarding palliative care or end of life care, including your desired location for such care;

• Instructions for the use of antibiotics or antiviral medications; and

• Preferences related to experimental treatments or clinical trials.

Having a Living Will ensures that your healthcare providers and family know your specific wishes, which can help to reduce the emotional burden on your loved ones during difficult times by preventing them from having to make critical medical decisions on your behalf without guidance.

Do I Need Both a Last Will and a Living Will?

It’s advisable to have both a Last Will and a Living Will. While a Last Will governs the distribution of your assets after death, a Living Will focuses on your healthcare preferences during life if you are unable to communicate them. Both documents work together to ensure your wishes are honored in different situations, giving your loved ones peace of mind that your affairs, both personal and medical, are managed in accordance with your wishes and directions.