Living Will

Living Will

Remember Terri Schiavo? She was the young woman who collapsed in 1990 for unknown reasons at the age of 26 and spent the next 15 years, until her death, in medical facilities being nourished through a feeding tube. Whether she was brain dead has been a topic of impassioned debate and expensive, heart-wrenching litigation.

The legal documents needed to specify your wishes in this type of situation are called “advance health care directives”, such as a “living will” and “medical power of attorney”.

Living Wills are sometimes called Health Care Directives or Medical Directives. Under the Federal Patient Self Determination Act (PSDA), you have the right to be informed about healthcare choices and make decisions on how you are to be treated, including making medical care decisions, in advance. You have a right to create a health care directive under Title 20 (Public Health and Welfare) of the Arkansas Code. You can create a valid Living Will that meets these criteria using the downloadable forms offered on this website.

In Arkansas, the following requirements must be met to create a valid Living Will:

  • The person must be an adult
  • The person must have the capacity to make health care decisions
  • The person is not being forced into writing a Living Will

A Living Will usually covers specific directives as to the course of treatment that is to be taken by care-givers or, in some cases, forbidding treatment and/or food and water, should the principal be unable to give informed consent (“individual health care instruction”) due to incapacity. A durable power of attorney for health care under the “Durable Power of Attorney for Health Care Act” appoints an individual (a proxy) to direct health care decisions should the principal be unable to do so.

The “Uniform Rights of the Terminally Ill Act” has been enacted by the Arkansas Legislature. This law allows a person to declare a living will, specifying that he or she does not wish to be kept alive through life support if terminally ill or in a coma. The person may also obtain a “health care power of attorney”. This power of attorney appoints an agent to make medical decisions for them in case he or she becomes incompetent.

Living Will

Many people make use of this act because they do not wish to endure any pain or suffering if weakened by a fatal disease. They want to “die with dignity,” so that family members will not have to go through the emotional pain of watching their loved one sleep through many years of life with no response to any stimuli.

The living will directs withholding or withdrawing of procedures that artificially sustain vital functions and prolong the dying process. It requests permission to die naturally with only the provision of appropriate pain easing medication and comfort care. In addition, when making a living will, you have a choice about whether you want to have artificially supplied nutrition and hydration. You can also elect to have your healthcare representative or your attorney make this determination for you.

Competent adults have the right to control the decisions related to their medical care, including life-prolonging procedures. The living will serves as the final expression of your right to refuse treatment and accept the consequences of the refusal.

You should notify your physician about the living will. He/she will then place a copy of it in your medical record. Legally, the living will does not obligate your physician to withhold or withdraw life-prolonging procedures. However, the living will is evidence of your desires and will be given great weight in determining your intent if you are unable to give directions regarding your care.

Revising a Will

Revising a Will

A will can be revised by:

Making minor changes in what’s called a codicil, a formal amendment to the will.

Preparing an entirely new will revoking the prior will.

Independent events such as divorce or adoption. State laws vary as to the effect these events may have on the validity of your will. Although making a will is a sobering experience, your loved ones and friends will thank you for being so organized and thoughtful ahead of time.

There are procedures set up to handle the settlement of small estates, or even larger uncomplicated ones. In Arkansas, an Affidavit for Collection of Small Estates is used. Your attorney will discuss this option with you.

Details of the probate process vary greatly depending upon the facts and circumstances of each decedent. However, the process usually goes as follows:

Usually, the first step is taken by the executor – the person named by the decedent in his or her will to process the estate – or another interested person who has the original will. This person files a “Petition for Probate of Will and Appointment of Executor” or something similar.

If there is no will, somebody must come forward and ask the court to be appointed as administrator instead of an executor. Most often, this is the surviving spouse or an adult child, although it might also be another interested person. The probate estate simply refers to any property that is subject to the authority of the probate court. Assets disposed of outside the probate process are part of the non-probate estate.

After the court decides that the will is genuine and valid, the court issues an order “admitting the will to probate” or some similar proclamation. The Clerk then records the will. Arkansas law then requires public notice of the probate proceeding by the publication of newspaper ads.

Occasionally, however, there might be an objection. For example, somebody might claim that the document being offered to the court is actually a forgery. Or, more commonly, someone claims that the document being objected to was revoked in a later Will. Whatever the objection or claim, it must be brought to the judge’s attention.

Revising a Will

The judge’s order also formally appoints an executor. This appointment gives him or her full authority to handle the decedent’s accounts. The Executor is given a certified court document that will be recognized by financial institutions and others, often called Letters of Administration or Letters Testamentary.

A will is a public record, and so is the final settlement and inventory of estate property. As such, these papers may be viewed by anyone.

An executor or administrator:

Collects, inventories and appraises all assets that are subject to probate

  • Pays taxes and creditors
  • Pays funeral expenses
  • Pays the costs of administration, such as for a lawyer and appraisers

Formally transfers the estate property according to the will, or by the state laws of “intestate succession” if there is no will

What remains of the estate after these payments are made is available for distribution to heirs and beneficiaries.