What’s the Difference Between a Living Will and an Advance Directive?

Living Will vs Advance Directive

There’s a question we almost always get as we are helping clients draft their estate plans. “Do I need a living will or an advance directive? They sound like the same thing.”

The confusion is understandable–the answer, however, can be a little confusing. Living wills are specific to your preferences about end-of-life care, while advance directives are any legal documents that express your future healthcare wishes.

So, while a living will is a type of advance directive, an advance directive is not always a living will.

Understanding what document you want is important because these are the legal instruments you will use to make medical decisions if you are unable to.

Read on to learn all the basics of living wills and advance directives.

Living Wills: Narrow but Specialized Function

First, let’s tackle the basics of what a living will entail under New York law. Think of it as a set of instructions for medical care that you give in advance. As spelled out in New York’s Family Health Care Decisions Act:

The primary purpose of a living will is to document the patient’s wishes regarding life-sustaining treatment and other end-of-life care so the attending health care practitioner may act accordingly should the patient lose decision-making capacity at some point.

So, in plain terms, living wills only deal with one thing – telling doctors your preferences for life-extending medical treatment if you are unable to express those wishes.

The conditions of a living will only activate if a doctor declares that there is no chance you will ever stabilize or recover.

Under these conditions, the living will is used to define your preferences on matters that include:

  • Refusing/discontinuing life support like ventilators or feeding tubes
  • Declining resuscitation efforts if the heart stops
  • Allowing natural death versus prolonging life medically
  • Relief from pain over extended life
  • Organ donation wishes

So, in summary, living wills drill down on specifics around terminal diagnosis scenarios, whereas advance directives cover broader ranges of treatment guidance.

Advance Directives: Comprehensive Health Decision Guidance

Advance directives are any legal documents that outline your preferences for your future medical care needs. They offer patients true end-to-end influence over their medical journey.

As defined under New York Public Health Law, a valid advance directive allows you to specify:

  • The person designated to decide on your behalf if you cannot – This appointed “healthcare agent” or proxy makes choices that align with your values if you can’t commit to treatment yourself.
  • Instructions for your proxy to follow. An advance directive allows you to write down instructions, priorities, and limits on medical care that you want your designated proxy and doctors to follow. These instructions can cover all aspects of care – from routine doctor visits to major surgery to emergency response to end-of-life palliative treatment.
  • Organs/tissues you consent to donate upon death – In New York, advance directives can also include legally binding donation decisions.

Advance directives paint a complete picture of what the patient wants. While the document lays out your desires clearly, it’s still good to choose someone you trust to make choices on your behalf.

Naming a close friend or family member as a healthcare agent is very empowering. This person can then make flexible decisions for the patient based on their core wishes. Adding instructions in the advance directive gives this agent further guidance to follow the patient’s beliefs and priorities when deciding on treatments.

Friends and family often appreciate advance directives just as much as the person who made them. It’s difficult trying to interpret the wishes of a loved one who is medically incapacitated. Advance directives eliminate uncertainty, allowing your loved ones to rest easy knowing they are helping you get what you want.

Types of Advance Directives in New York

New York recognizes different types of advance directives, which include:

  • Health care Proxy – Strictly focused on empowering the chosen proxy to access records and determine treatment on your behalf if incapacitated.
  • MOLST/POLST Forms – Portable directives with doctor-signed medical orders for life-sustaining emergency treatment catered to a patient’s disease state. Provides EMS critical guidance.
  • Living Wills – This tells doctors and hospitals what specific life-prolonging treatments or interventions you would or would not want.
  • DNR Order – DNR stands for Do Not Resuscitate order. Signing a DNR order tells medical staff not to attempt emergency CPR or revive you if your heart stops beating or you stop breathing. It allows a natural death.

The more carefully you plan for the unexpected, the more confident you can be that your wishes will be respected.

Don’t Go It Alone – Get Professional Support Instead

Navigating these estate planning documents is tricky – but you don’t have to go it alone. Our attorneys can demystify the process and help craft customized packages securing your choices.

Reach out if you have any lingering questions on properly implementing living wills, advance directives, or related instruments. We’re always ready to help through thoughtful legal counsel, not confusing jargon.

Contact The Browne Firm today to discuss protecting your preferences.


Author Bio

Danielle Browne is the founder and managing attorney of The Browne Firm, a New York-based estate planning and business law firm. Danielle leverages her background, serving as general counsel for a Fortune 500 company and working with startups to represent clients in entity formation, intellectual property protection, contract drafting, estate planning, and more.

With more than ten years of experience as an attorney and business executive, she has represented clients ranging from entrepreneurs and small businesses to artists and Fortune 500 companies. Danielle received her Juris Doctor cum laude from the University of Miami School of Law and is licensed to practice in New York. She has received numerous honors for her work, including being named a 2015 Future Leader by the WNBA President while serving as general counsel for the Atlanta Dream.

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