Living Will v. Last Will and Testament: Defining our Terms

By: Lauren E. Surdyke

Many people I encounter are not aware that “living wills” and “last wills and testaments” are completely different documents. They assume that their last will and testament will cover their end of life wishes. This is not true. Missouri law does not even recognize a document called a “living will.” It is helpful to distinguish between these documents to understand what is needed to accomplish each person’s intentions.

A “last will and testament” is a legal document that has no effect until after the death of the “testator,” the person who created it. Among other things, it nominates a personal representative to administer the person’s estate, nominates a guardian for minor children, and governs the distribution of a person’s property.

“Living wills” exist in other jurisdictions and deal with aspects of end-of-life decision-making. While Missouri law does not address living wills, it does provide guidelines for the creation of a similar document called a “health care declaration.” A health care declaration is a legal document that allows the “declarant” (the person who signs the document) to specify his or her wishes regarding end-of-life medical treatment. Missouri law recognizes, “Each person has the right to request or refuse medical treatment…” (V.A.M.S. § 459.055).

Missouri health care declarations are only operative if the declarant is unable to communicate wishes and he or she has only a short time left to live (generally, six months or less). Missouri law provides sample instructions, but it also states that a declarant can include other, more specific instructions. If there are instructions related to limiting medical interventions, such instructions will not be construed to allow withholding of medication for relief of pain or withholding of nutrition or hydration. A person who does not wish to receive nutrition or hydration in a terminal situation must explicitly say so.

It is important to consider creating both a last will and testament and a health care declaration, regardless of your age or financial situation. Each of these documents serves a unique purpose and has specific requirements in order to be valid. Consult an attorney at Paule, Camazine & Blumenthal, P.C. to discuss how each of these documents can be incorporated into your estate plan.

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Lauren Surdyke

Lauren Surdyke

Lauren E. Surdyke focuses her practice on estate planning and business transactional matters. She has particular interest in charitable planning and estate planning with complex family situations. She also assists non-profit organizations by advising boards of directors on operational matters and preparing applications for tax-exempt status under section 501(c)(3) of the Internal Revenue Code.