You never know what life will bring, and the last thing you want to do is leave your loved ones guessing about your medical wishes in the event of some sort of emergency. That’s why it’s important to cover your bases and record those wishes using an advance directive or a living will.

However, there’s a lot of confusion around these documents, what they do, and which one you should opt for.

That’s why we sat down for a Q&A session with lawyer Daniel La Gamba of LD Law.

Based in Toronto, LD Law specializes in real estate, wills, and business law. In 2024, LD Law was celebrated as one of the city’s top firms in the Toronto Star Readers’ Choice Awards. La Gamba also specializes in estate planning, and he’s spent the course of the last decade advising clients on a range of matters, including arranging living wills and creating advance directives.

Read on to hear La Gamba’s take on the key differences between a living will and an advance directive, how to create both documents, and get pro tips on how to talk to loved ones about honoring your medical wishes.

What Is a Living Will?

Answer: A living will is a legal document whereby a person who is incapacitated or unable to communicate declares his or her desires about medical treatment. 

Most commonly, it describes his or her wishes regarding life-sustaining measures, such as whether or not to use resuscitation, mechanical ventilation, or artificial nutrition. 

The main focus of a living will is to ensure that medical decisions the patient has made are honored, even if that patient cannot communicate them at the point in time when the medical treatment is being considered.

What Is an Advance Directive?

Answer: An advance directive is a legal document, more significant than a living will, which allows one to choose someone as a healthcare proxy or grant them power of attorney. 

A living will expresses medical conditions about which a person does and does not wish to accept treatment. An advance directive, on the other hand, gives someone wide authority to make medical decisions for that person. 

This ensures that in unexpected circumstances, medical choices not covered in the living will can still be made.

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

Answer: Despite resembling each other in purpose, neither document encompasses similar situations. 

Living wills apply to end-of-life care and a list of interventions, but advance directives cover more by allowing the appointment of a decision-maker for other concerns regarding medical care. Combining both ensures more extensive medical planning.

A living will can exist without an advance directive and vice-versa. However, having both is preferable, as a living will gives written direction for specific treatments, while an advance directive remains applicable should other medical crises arise. 

Without an advance directive, uncertainty may arise in decision-making if a situation falls outside the living will's intents. 

These documents work with a healthcare power of attorney as complementary written instructions. 

While a healthcare power of attorney names a trusted individual to make medical decisions, a living will states what those decisions should be. The proxy can consult the living will as a guide when making decisions on behalf of the individual. 

What Are the Legal Requirements for These Documents?

Answer: States have their own legal differences with respect to the above-mentioned instruments, including execution requirements, notarization, witness rules, and specific forms. 

While some states might require notarization, others may recognize digital or electronic advance directives. It is critical to check state law for rules governing execution and validity. 

A living will or advance directive should be reviewed and updated after major life events such as marriage, divorce, birth of a child, or changes in one's own health status. 

As medical science advances, so do individual beliefs, hence the need for periodic reviews of these documents to ensure they reflect current wishes. 

Who Should Have Access to These Documents?

Answer: These documents should be accessible to healthcare providers, family members, and legal representatives. They must be copied and given to a primary care doctor and kept in a hospital medical record in case of emergency treatment.

These documents serve to guide treatment decisions when a patient is unable to communicate. In case a person arrives unconscious or in a critical condition, medical teams use the living will or advance directive to determine the availability of life-sustaining treatment. 

Can Your Family Override a Living Will or Advance Directive?

Answer: Families usually are not allowed to override a valid living will or advance directive unless a legal dispute arises regarding its authenticity or interpretation. 

Conflicts can, however, result if a healthcare proxy, family member, or physician disagree on the intent of the document, possibly leading to intervention by the courts.

How Do You Create an Advance Directive or a Living Will?

Answer: To make a living will or advance directive legally binding, its execution must conform to state-specific requirements, including signature, witnessing, and occasionally notarization. 

It is best practice to follow state laws with the help of a lawyer. 

Some states require notarization or filing with a specific registry, while for others, proper execution and distribution to the relevant parties will suffice. State-specific guidelines should be checked to ensure this handling.

Accessibility of these need-to-be-signed documents must also be guaranteed in numerous locations (including in the home safe, with a trusted family member, etc.), including with a healthcare provider. 

In many states, it is possible to submit documents to online registries to facilitate easy access from hospitals. 

Are There Common Misconceptions People Have About These Documents?

Answer: A common misconception is that unless one has a living will or advance directive. It means no medical intervention can occur. 

The truth is they guide the care without putting a ban on everything. Another prevailing thought is that such documents stay forever, which is not the case, as they can always be amended.

What Happens if Someone Has a Living Will but No Advance Directive (Or Vice Versa)?

Answer: If the person has a living will without an advance directive, medical teams follow the instructions given in the living will, but decision-making authority may have gaps. 

If the patient has only an advance directive, then decisions are made by the proxy, although there may not be explicit written guidance to assist the proxy's decision. 

Can These Documents Be Changed After They’re Signed?

Answer: Yes, a living will or advance directive can be changed anytime after signing. 

The person needs to sign a new one, take steps to revoke the old one, and give copies of the changed document to all relevant parties. 

How Should You Discuss These Decisions with Your Family?

Answer: This conversation is undoubtedly challenging for family members. Such conversations should preferably be characterized by honesty, directness, and reassurance. 

It's paramount that loved ones understand your values through such conversations because this could help prevent conflicts if there is a need to take action in the future.

The emotional challenges of preparing these documents include grappling with mortality, family rifts, and uncertainty about what medical situations might arise down the line. 

Many families are torn about end-of-life decisions, supportive of each other during the process, and feeling reassured their loved one's wishes shall be upheld. 

Using Trustworthy to Communicate Your Wishes 

To ensure your medical wishes are upheld, it’s critical that you explicitly communicate them to your friends, family, doctors, and everyone in between. 

This will give your loved ones the time and context they need to better understand and accept your decisions — and one of the best ways to communicate your wishes is to share your advance directive or living will directly with the important people in your life.

That’s where Trustworthy can make life a whole lot simpler.

Trustworthy’s secure Family Operating System® enables you to upload important family documents to create dynamic digital versions. Our AI-powered Autopilot tool streamlines the onboarding process by generating automated summaries of each document, suggesting file names, and even telling you which folder to send it to.

From there, Trustworthy enables you to add trusted collaborators to your digital vault. You can choose between ‌multiple permission levels, and grant access ‌only to a specific file or a particular folder. 

Likewise, you can securely send any of your documents using Trustworthy’s SecureLinks feature. This lets you grant unique access to a document in your Trustworthy vault that you can time-limit or revoke at any time. You’ll even get a push notification to inform you when the person you sent it to has opened that document.

These collaborative features mean you can rest easy knowing everyone in your life has access to your explicit medical wishes — written in your own words. That can go a long way towards preventing messy family disagreements or confusion in a hospital if something happens to you.

Are you ready to start organizing yourself for the future? Join Trustworthy now.