This morning, I am waiting at an outpatient surgical center, providing transportation and support for a family member. A steady stream of patients is coming and going through the lobby. The receptionist asks each of them, at check-in, “Do you have a living will?” Many of them don’t speak English, so she repeats in Spanish, “testamento?”
Here’s the problem: “testamento” would refer to a last will and testament. She should be asking them if they have a “testamento vital” or a “voluntad en vida.” Wills and living wills are completely different things. So when they respond that they do, they’re responding to what she asked but not what she meant to ask.
A living will is a legal document. It gives instructions to your doctors or your health care surrogates in the event that a life-and-death decision needs to be made while you are terminally ill, have an end-stage condition, or are in a vegetative state, and there’s no reasonable hope of recovery. A living will is not a “Do Not Resuscitate Order” – that’s a medical order that a doctor writes – but a living will may state the circumstances under which the doctor should write it.
A last will and testament, on the other hand, is a legal document that says who gets your stuff when you die – everything from bank accounts to jewelry to the embroidered pillow your great aunt gave you when you were ten. (But not all your stuff – just the stuff that you owned individually and alone and without having designated a beneficiary on it.)
So, if you are at the doctor and they ask you if you have a last will and testament, the answer is it’s really none of their business who gets that pillow. What they meant to ask is “have you created a legal document that says how the doctors should treat you, or not, if something goes wrong during your procedure.” They want to know if you have a living will, not if you have a last will and testament. Both are important legal documents, but they are used at very different times and for very different reasons. They both just happen to include the word “will” in their title because they are documents where you are expressing your intent and exercising your free will to decide what happens given a specific set of circumstances.
