A Last Will and Testament and a Living Will are two types of Ohio estate planning documents for recording a person’s wishes for when the person can no longer speak for themselves. In the most general terms, the two legal documents differ in the time they apply. A Living Will governs when the person is still alive. A Last Will and Testament controls after the person has died.

What is a Living Will?

A Living Will, simply put, is a set of instructions for when a person is still alive but the end of their life is imminent. This type of estate document contains instructions for medical treatment including things like pain management, organ donations, life support, and how aggressively the person would like to pursue treatment (do you want CPR, a feeding tube, or surgery, for example).

In Ohio, a living will only comes into effect if:

1. The person is in a terminal state, meaning there is no recovery option for what ails them and their time is short; or
2. The person is unconscious with no expectation to regain consciousness and the ability to make their own health decisions.

A living will reduces the stress on your loved ones by removing the need for them to try to guess your wishes. Additionally, employing a living will can prevent disagreements between your loved ones if they disagree on the type of care they think you should receive. With a living will in place, your doctors must follow your directive, not the wishes of your loved ones.

A living will may sound similar to another estate planning tool, a power of attorney, also known as an advanced directive. While both concern the ability to designate another with the responsibility of managing your medical care during your life, the two documents concern themselves with different stages of life. As mentioned above, a living will is designed to control when the end is near.

Conversely, a power of attorney is meant to be used when the person is expected to continue living for some time. Power of attorney is used in two circumstances. The first is for when a person is temporarily incapacitated due to sedation or unconsciousness. The second is for long-term cognitive incapacity such as dementia or stroke.

As such, a person can begin making decisions for another under a power of attorney but shift into making decisions under the directive of a living will. For example, if a person is injured in a car accident and arrives at the hospital unconscious, their partner may make decisions for their medical care under the powers granted to them in an advance directive. Under the care of the doctors, it is determined that the patient has brain damage from the accident and will not recover. The partner then shifts to making medical decisions for the patient according to the patient’s living will.

Living Will Requirements

A living will must be part of the person’s medical record. Additionally, a living will requires the signature of the person, the signatures of two witnesses, and must be notarized. A living will should also be distributed to a person’s friends and family, and the person should carry a living will card in their wallet.

What is a Last Will and Testament?

Whereas a living will dictates how you want to die, a last will and testament dictates what to do after you have died. A last will and testament names your beneficiaries (the people or organizations you are leaving your belongings and financial assets to), appoints an executor (the person responsible for carrying out your wishes listed in your will), designates guardians for minor children, and can distribute property (i.e. to my children I leave my Bowling Green season tickets for you to continue cheering the Falcons on together in my absence).

Ohio Last Will and Testament Requirements

Under Ohio law, for a last will and testament to be valid the person making the will must be at least 18 years of age, of sound mind, and not under duress. Additionally, the will must be in writing, must be signed by the person making the will, and must be witnessed and signed by two people who are not receiving anything in the will. Ohio does not require that a will be notarized. In Ohio, a will can be handwritten, but it is not recommended. Without a will, state law will determine how your estate is distributed.

A Living Will and Last Will and Testament: Two Parts of a Comprehensive Estate Plan

A Living Will and A Last Will and Testament are two end-of-life legal tools meant to be used in conjunction with one and other. One allows you to speak and maintain control up until the end. The other allows you to dictate what happens in the rearguard to your legacy after you die. The combination brings control, stability, and calm to a difficult, emotional, and often chaotic time.

The process of estate planning can be complex. It’s critical to have the guidance of an experienced attorney who can help you create a comprehensive plan tailored to your loved one’s needs. Offering trusted counsel and skillful representation for more than 100 years, we work with clients for a wide range of estate planning matters. Contact Middleton Law Offices today at 419.548.0196 for a consultation to learn how we can help.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.