Each state has its own guidelines regarding medical decisions in the event the patient is incapacitated or unable to communicate on his or her own behalf. Drafting a living will means that, if you require end-of-life care, your wishes are known.
What Is a Living Will?
A living will is a type of advance directive, a legal document in which you outline your wishes regarding end-of-life care in case of terminal condition, irreversible coma, or a persistent vegetative state. These conditions strike at any age. Anyone over the age of 18 can benefit by having a living will. Remember, even when a child still lives at home, if he or she is 18, parents no longer have the authority to make medical decisions for that child.
Living wills do have some limitations, but used in concert with other advance medical directives, such as a durable health care power of attorney, they form a powerful part of your estate-planning portfolio.
Choose Your Agent
Naming a person that you trust to act as your health care power of attorney (or agent) is your first step. Your agent speaks for you when you are no longer able to speak for yourself. Discussing your preferences with your agent ensures he or she understands your choices and agrees to enforce them if it ever becomes necessary.
Do not ignore this discussion. Although difficult, it serves two purposes. One, you learn whether your chosen agent is willing to adhere to your wishes. Some people have moral or religious objections to certain medical choices. You need this information before naming an agent whose beliefs forbid him or her from following your wishes. The second reason is that this discussion ensures your medical agent understands your wishes. Issues not covered in your living will may arise. A full understanding of the spirit of your medical wishes helps your agent advocate on your behalf.
Medical Treatments Covered by a Living Will
A living will allows you to make choices regarding end-of-life care. In Arizona, this means terminal illness or injury resulting in an irreversible coma or vegetative state. Talking to your primary physician helps delineate these wishes, but some treatments to consider include:
- CPR: If you heart stops beating, do you want the medical team to institute CPR or electric shocks to resuscitate your heart?
- Intubation: If you are no longer able to breathe on your own, do you want to be on a mechanical ventilator?
- Intravenous nutrition and hydration: Do you want your body to receive nutrients and hydration artificially?
- Palliative care: Do you want medications to manage pain? Do you prefer to die at home, or move to hospice care?
Other stipulations include organ and tissue donation. If you choose to be an organ donor, understand that this necessitates life-sustaining treatment to complete this procedure. Include a statement in your living will that you allow this treatment specifically to allow doctors to harvest your organs and tissue.
Intestate Succession in Arizona: The Importance of a Will
When we say a person died intestate, what we mean is that the person passed without a will. The laws determining property succession vary by state; Arizona has a number of specific guidelines dictating how an estate settles in the event someone dies intestate. Additionally, a number of assets do not fall under intestate succession guidelines. Finally, though not common, it is possible your property will pass to the state. This only happens in rare instances in which a person dies without a single living relative, including nieces, nephews, aunts, uncles, and cousins.
Cholewka Law’s experienced staff helps you navigate these confusing issues. We can also help you ensure your final wishes are met and your heirs provided for via comprehensive estate planning.
How are Your Assets Divided?
Generally, intestate beneficiaries are either your spouse or your closest living blood relatives. Distribution of property is as follows:
|If you die intestate||They inherit|
|Married without children||Spouse inherits everything|
|Married with children conceived with that spouse||Spouse inherits everything|
|With children but no spouse||Children inherit everything|
|Married with children from a prior relationship||Spouse inherits half of your separate property but zero interest in
your half of community property. Children inherit half of your separate
property and your half of community property
|With living parents but no spouse or children||Parents inherit everything|
|With siblings but no children, spouse, or parents||Siblings inherit everything|
What Constitutes Children in Arizona?
The share of your estate your child receives if you die intestate varies by factors such as how many children you have and whether or not you are married. Before your child can inherit, the state must confirm whether he or she is legally your child. In today’s world, this is not always a straightforward issue. The following are some guidelines Arizona uses to determine beneficiary status.
- Children born during your marriage are presumed to be your child
- Legally adopted children receive an intestate share at the same rate as biological children
- Children born outside of marriage may receive a share if paternity was legally established
- Children conceived but not born before death receive a share providing they survive 120 hours after birth
- Grandchildren receive a share if your child and spouse passed before you
- Children born, placed for adoption, and legally adopted by another family receive a share unless you specifically disinherit them
- Unless legally adopted, foster children and stepchildren do not receive a share
What Does Your Spouse Receive?
The spousal share of your property depends on a couple of different factors, such as whether you owned your property as community property or separate property. Generally, property acquired during your marriage is community property. The exceptions are gifts and inheritances; even if acquired during the marriage, they are separate property if you kept them separate from community property.
Your spouse inherits your half of all community property, whether or not you have children with that spouse, except that if you have children from a different relationship, those descendants receive your half of community property. If property is owned with your spouse “with right of survivorship,” however, that property will pass to your spouse. Any separate property you own is divided the same way: either all to your spouse or shared among your spouse and any descendants not from that relationship.
Other Rules of Property Succession
Arizona provides further guidelines beyond determining beneficiaries when a person dies intestate.
- Arizona’s survivorship period is 120 hours. This means your heir must outlive you by 120 hours in order to inherit.
- Half-relatives inherit at the same rate as full-blooded relatives, meaning a sibling with whom you share only one parent receives the same share as siblings with whom you share both parents.
- Beneficiaries entitled to an intestate share of your property need not be legal citizens of the United States.
- Relatives conceived before your death but born after it inherit in the same way as if they had been born during your lifetime, as long as he or she survives 120 hours after birth.
What Property Does Not Fall Under the Intestate Umbrella?
The only property subject to intestate succession laws is that which would typically pass through a will, such as assets solely in your name. Some of these include:
- Retirement account funds, such as those in an IRA or 401(k) that have a designated beneficiary
- Property transfered to a living trust
- Proceeds from life insurance that has a designated beneficiary
- Payable-on-death (POD) or transfer-on-death (TOD) account funds
- Real property that has a recorded Beneficiary Deed
- Vehicle registrations that have a designated beneficiary
- Joint tenancy or community property with right of survivorship
The Difference Between Will and Living Will
Despite the word “will,” a living will has nothing to do with how you choose to leave your estate. Instead, it details your wishes regarding medical intervention in the event you face an end-of-life event such as terminal illness or traumatic injury leaving you in a persistent vegetative state or irreversible coma.
Your living will has greatest value when it is both general and specific. You need specificity to ensure others know your wishes, but you also need to allow room for your agent to act or make decisions as your condition changes.
Determining Your Wants
Your living will indicates items such as CPR, intubation, and artificial feeding and hydration. Are there situations you want these things and others where you do not? Consider your feelings toward independence, self-sufficiency, and quality of life. Discussion with your primary doctor now, while you enjoy good health, helps in making these decisions.
Also, address palliative care, sometimes called comfort care. This includes treatments such as pain management as well as being moved to your home or placed in hospice care.
If you choose to donate organs or tissue, this often requires life-sustaining treatment that may run contrary to some of your treatment choices. Including a statement that you approve temporary intervention in order to harvest organs or tissue can help alleviate confusion.
Protecting Your Family
Although these conversations are difficult, ultimately drafting a living will protects your family and loved ones. Few people would welcome the responsibility of choosing to deny a loved one medical treatment, even when the loved one makes that choice. Making your wishes known in a legal document such as a living will ensures both loved ones and medical staff understand your wants, so they may abide by them. You protect yourself and your loved ones with a living will.
Schedule a Consultation
A living will is really a gift to your loved ones, as it frees them from having to make these heart-wrenching decisions on your behalf. It also ensures your wishes are met and protects your family at the same time. Contact us today to learn more about this important document, as well as other estate-planning tools.
Contact us today for assistance with designing and implementing your Arizona Living Will. And enjoy the peace of mind that comes from knowing you have a plan in place for how you will be cared for in an end of life situation.