Should You Have a Living Will in Your Arizona Estate Plan?
The estate planning document commonly referred to as a living will can be the source of confusion. A living will is an entirely different and separate document from a last will and testament. The two documents accomplish very different goals. A significant difference is that including a living will in your Arizona estate plan is optional, while a last will and testament is an essential document in virtually every estate plan. Before you decide whether to add a living will to your plan, your should make certain that you understand what you accomplish by including it as part of your estate plan.
What Is a Living Will?
A living will is a specific legal document that you may include in a health care directive as part of your Arizona estate plan. A health care directive usually contains several different documents that protect you and your family during your lifetime by expressing your wishes concerning your health care in the event of incapacity. The documents also typically authorize a person you select to make health care decisions on your behalf if you become incapacitated.
Chapter 32, Article 1 of the Arizona Revised Statutes governs both living wills and health care directives. The law defines a living will as “a statement written either by a person who has not written a health care power of attorney or by the principal as an attachment to a health care power of attorney and intended to guide or control the health care treatment decisions that can be made on that person's behalf.”
In other words, a living will expresses your wishes concerning the type of health care and medical treatment you desire in the event of incapacity. You may prepare a living will as a standalone document if you do not have a health care power of attorney or as an attachment to your health care power of attorney.
Arizona Legal Requirements for a Living Will
Section 36-3261of the statute specifically addresses living wills, including the requirements for verification. In § 36-3261(A), the law provides that an adult may create a living will to control health care decisions made on their behalf. The living will may be part of a health care power of attorney or may be used without a health care power of attorney. Under the statute, a health care power of attorney is defined as the written designation of an agent to make health care decisions that meets the requirements of other sections of the law.
A living will is subject to the same verification requirements as a health care power of attorney, as established in § 36-3221 of the statute. The law requires the document to be dated and signed or marked by the person who is the subject of the document (referred to as the principal). A living will also must be notarized or witnessed in writing by at least one adult is present when the document was signed.
The notary or witness for a living will cannot be the person designated to make medical decisions on the principal’s behalf or a person directly involved with providing health care to the principal at the time the principal executes the document. In addition, if the document is witnessed by only one person, that person cannot be related to the principal by blood, marriage, or adoption, and they also cannot be a beneficiary in the principal’s will or an heir by operation of law at the time that the document is executed.
The law provides a limited exception to the verification requirements that apply if an individual is unable to sign or mark the document. The exception establishes specific requirements that must be met for a document to be valid in that situation.
Importance of a Living Will
While the legal requirements for a valid living will are complex and may be confusing, the nature of a living will is relatively straightforward. It is the document in which you express your preferences for the type of health care you wish to have administered to you. The document controls decisions of any person you authorize to make decisions on your behalf, as well as the decisions of health care and medical providers who treat you.
A living will includes an expression of your wishes concerning end-of-life care, including medical care for a terminal condition, irreversible coma, or persistent vegetative state. Executing a living will enables you to clearly state your medical care choices you, so everyone involved in treatment knows your wishes in the event you become unable to communicate or express those wishes. Creating the document when you are healthy and clear-minded gives you the peace of mind that your family, medical professionals, and others will know exactly how you want your medical care to be handled if you become incapacitated.
How to Make a Living Will
The significance of taking steps to protect yourself and your family by putting an Arizona living will and health care directive in place cannot be understated. If you decide that you want to include a living will in your estate plan, the best strategy for creating the document is to discuss your living will and other related documents, like a health care power of attorney, with an experienced Arizona estate planning lawyer. Your attorney ensures that your documents meet all the complex Arizona legal requirements and that you fully understand the implications of executing the documents.
There are substantial risks in creating any estate planning document on your own, including a living will, without assistance from a knowledgeable attorney. Using a form or online service for any legal document can have disastrous consequences for you and your family.
Schedule a Free Consultation With a Trusted East Valley Estate Planning Attorney
At Peterson Law Offices, estate planning is a primary focus of our practice. We provide top-quality services at affordable prices and are here to assist if you would like to add a living will to your estate plan. If you don’t have an estate plan, we can help you put one in place that includes a living will and addresses all your other concerns as well.
We welcome inquiries from clients throughout the East Valley, including Queen Creek, San Tan Valley, Gilbert, Mesa, and Chandler. Schedule your free initial consultation by calling 480-878-5998 or using our online contact form.
