Estate Planning Law Report: August 2013
What, Exactly, Is A Living Will (And Why Should You Have One)?

First, a living will is not a will.  It also is not a trust (as in a living trust).  It’s unfortunate that the name living will was chosen for this important document, because it creates confusion with those other documents. 

Here’s what the Arizona statutes say about what a living will is: 

An adult may prepare a written statement known as a living will to control the health care treatment decisions that can be made on that person’s behalf.

So, it’s a written statement to control the health care treatment decisions that can be made on behalf of the person making the statement.  Here’s more from the Arizona statutes about what a living will is and how it works:

Any writing that meets the requirements of this article may be used to create a living will. A person may write and use a living will without writing a health care power of attorney or may attach a living will to the person’s health care power of attorney. If a person has a health care power of attorney, the agent must make health care decisions that are consistent with the person’s known desires and that are medically reasonable and appropriate. A person can, but is not required to, state the person’s desires in a living will.

That seems simple enough.  If you have a document that meets the requirements, it’s a living will.  A power of attorney, as you probably know, is a document via which you can give someone else the legal ability to make decisions for you.  A living will controls health care treatment decisions that can be made on your behalf. 

So it makes sense that if you have a living will and a health care power of attorney, the person named as your agent, or decision maker, in your power of attorney must make health care decisions for you that are consistent with the instructions in your living will.

The statutes also say that a health care provider who makes good faith health care decisions based on a living will is, in general, immune from civil and criminal liability for those decisions.

That’s just about everything that the Arizona statutes say about living wills.  Those statutes have been in effect since 1992.  Living wills are now so widely accepted that if you are going to be admitted to a hospital in Arizona, you will almost certainly be asked if you have a living will.  If you answer in the negative, the folks at the hospital will ask you to sign one on the spot. 

The statutes also contain a form of living will.  If you have ever discussed this subject with me, you know that I encourage use of the form of living will that is in the statutes because I believe that’s the one that is most familiar to medical providers in Arizona. 

There are other forms of living will.  Some are very simple, while others are much more elaborate than the form in the Arizona statutes.  As I said, if a document meets the (fairly simple) technical requirements, then it qualifies as a living will.

Why should you have a living will?  Does the name Terri Schiavo ring a bell?  Go Google it.  All you have to type in to get the link to the Wikipedia page on the subject is her first name and the first two letters of her last name.  I’m not vouching for the accuracy of that page (I would never vouch for the accuracy of anything on Wikipedia), but it will remind you what that situation was all about.  It’s still exhibit ‘A’ for why you should have a living will.


We recently experienced an outage of our email here at the office. It lasted about a day and a half.  It was surprising how much effect it had on my normal operations. On the plus side, however, it caused me to revisit the technical aspects of our email setup. 

We have our own, dedicated email server here in the office.  Actually, we have a new one that was going to be put into service next month, but that got moved up as a result of the outage, which was caused by a technical failure of our old server.  Our email data is backed up regularly.  With our new server, email will now be backed up even more regularly. 

None of our data was ever in danger of being exposed to outsiders as a result of that outage, by the way.  It was strictly an internal equipment failure. 

Because our email server is here in our office, we aren’t putting our data in the hands of an outside email service, where it could be exposed to third parties. With the explosion of “cloud” computing, there has been a lot of discussion among lawyers about whether or not a lawyer can safely use not only the popular commercial email services, but use “cloud” storage for client files as well.  We don’t use “cloud” storage, so I have not felt like I have to be particularly concerned about it. 

I am concerned, however, about the news that certain commercial email services (lesser known ones, to be sure) that were supplying encrypted email service have shut down because of concerns that they would not be able to ensure privacy to their users.  I’m not sure what to make of that, but it bears watching.

In the meantime, I’m confident that our email system is secure.


                It has long been an axiom of mine that the little things are infinitely the most important.

 Sir Arthur Conan Doyle (1859—1930), The Memoirs of Sherlock Holmes