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Why a Living Will is a Bad Idea

Yes, folks. A living will is a bad idea. But what is a living will? Many clients and prospective clients call my office to ask about or to hire me to draft a ‘living will.’ I think that this is a term many latch onto and assume this is what you want. Not quite the story. A living will is technically a merger of a Will (or commonly known as Last Will and Testament) and a Power of Attorney for Health Care. An ordinary will is just that: Ordinary. It sets up the stage for your last wishes such as who the executor is, what is left to whom, and what to do if someone in your Will predeceases you. A good point to note is that 99% of Wills do away with the need for bond which is very helpful if your estate ever has to be probated through the court. The Power of Attorney for Health Care spells out whether you want the plug pulled and describes the conditions surrounding that decision. It also allows the attorney in fact (the person appointed in the Power of Attorney) to have access to medical records and make other decisions for you so long as those rights and powers are spelled out in the POA.

Now, I know what you might be thinking: But Chris, a Living Will makes sense and somebody I know has one. Well, I am going to give you advice that you will not hear from most attorneys and this is why: A ‘living will’ is a serious breach of your privacy and is too risky in my opinion to have. Think about it like this. Who do you want to have access to your will? A stranger off the street? Do you want just anyone or a person you do not know or trust to have full access to your last wishes in your will? OF COURSE NOT! (sorry for yelling). That would be, well, stupid.

With a Living Will, since it has health care provisions, you have to … wait for it … share it with doctors, nurses, hospitals, specialists, staff, etc. Actually, you don’t know who will see it or have access to it. Think about that for a second. You are giving copies of your Will to strangers. Why would you do that? Who would ever advise you that is a good idea?

Okay, if you have a Will and a Power of Attorney as separate documents, you only have to share the POA while keeping your Will completely secret and your privacy secured. You cannot do that with a Living Will. Privacy is just one issue to consider, but it is enough that I refuse to draft these things for anyone who might call or email me. I just won’t do it. I think it is a bad idea and it makes more sense to me to have two separate documents. I will turn away potential business because there is no way I want my name attached to a Living Will. Nope, not going to do it. I’m sure you can find an attorney who will draft one for you, but I like to keep my client’s property and assets as private and secure as possible.

If you want to change anything in the Living Will, you have to either revoke it, start over, or amend it. That’s just too much work if you ask me. If your documents are separate, so say you want to change something in a power of attorney, you can just execute a new one and keep your Will untouched and no need to send new copies of the Will or an amendment to your family and friends. If you want to change something in your Will, you can modify it without having to also change the power of attorney and update all your doctors and hospitals with the changes.

See? Doesn’t this make more sense? One more point to make on this. Divorce. Under Ohio law, after a divorce, any estate document naming your once spouse, now ex-spouse, as an executor, trustee, or beneficiary is immediately modified such that they are now treated as predeceasing you. So, if you have a Living Will, you have to get a whole new document made and refile that with all your doctors, nurses, specialists, hospitals, as well as any family member or friend who has copies of your Living Will. Too much work if you ask me. If you have a Will and a power of attorney, you should only change your Will and save yourself the extra work.

Now, let’s recap. Why is a ‘living will’ bad?

1. Lack of privacy.

2. Changes can cause you more work than if you have separate documents.

3. Lack of privacy.

Seriously, the benefit to having your estate documents drafted properly and by someone who thinks outside the box and thinks miles down the road to avoid for you many pitfalls and problems is that your assets and property are kept secure, private, and safe from predators, thieves, and just all around bad people looking to take advantage of another person.

Just in case I wasn’t clear: Privacy matters, especially in the world today.

Chris Gasper