A living will is not a revocable trust

Oran A. Hall, Contributor

QUESTION: If my memory is correct, about a year ago, you did an article on living wills: revocable/ irrevocable trust. Please tell me how I can get a copy of this article in detail. I also need to know, are revocable trusts legitimate and recognised in Jamaica where British law reigns supreme? In the United States, these revocable trust living wills do not have to go to probate.

- A. Pierce

PFA: You are referring to the column "Setting up a trust", which was published in the Sunday Gleaner of April 11, 2010, in which I discussed living or inter vivos trusts of which there are two types, revocable and irrevocable, and testamentary trusts, and stated that trusts may be used to supplement or replace a will.

Living wills did not feature in that column.

Although not in very common use in Jamaica, trusts are legitimate and recognised here, and are used, as in other countries, as estate-planning tools. A testamentary trust comes into effect after assets have been transferred to it according to the will of the deceased upon completion of the probate process.

A living trust, on the other hand, comes into effect while the donor is still alive, and because the trust assets are excluded from the will, there is no need for such assets to go through the lengthy process of probate. This is what would apply in the US as well.

A living trust - revocable and irrevocable - is a mechanism for holding and distributing a person's assets. The revocable trust allows the settlor to change the terms of the trust, the trustee, and the trust property during his or her lifetime.

It is often used as a way to name a person or institution to manage the grantor's affairs in the event of incapacity.

A revocable trust is not to be confused with a living will, which is a written legal document used to make known a person's own wishes regarding life-sustaining measures and medical treatments to be administered or not administered in the event that he/she is unable to make and communicate decisions regarding his/her medical care due to a state of permanent unconsciousness or terminal illness, which must be certified by the attending physician.

The term 'living will' is really a misnomer. A will is a testamentary statement whose provisions take effect upon death, but as we have just seen, a living will takes effect while a person is still alive.

No legislation

The information contained in a living will is valuable to family members and attending health-care providers, but it does not come into effect until the person is certified as being incapacitated.

If the level of incapacity and inability to speak for oneself are not severe enough to cause the living will to come into effect, there is still provision for a designated person to have authority to make health-care decisions for another through a health care power of attorney.

The attorney in this case is supposed to consider what the patient would want.

Sherry-Ann McGregor, attorney-at-law, points out in "Can I make a living will?" in the Flair magazine of February 8, 2010, that "in Jamaica, there is no legislation governing living wills, so we must continue to look to English common law for guidance."

She cites two cases which indicate the willingness of the courts "to uphold and observe a patient's refusal to consent to medical treatment where that patient was an adult of full (mental) capacity (at the time the living will was made)."

She further states that it is "highly unlikely that living wills will be given effect without the court's intervention".

Both the revocable living trust and the living will have a place in providing for decisions to be made for a person in the event of incapacity. The former has a place in relation to property, the latter in relation to health care in very extreme cases.

Beyond that, they are not related.

Oran A. Hall, a member of the Caribbean Financial Planning Association and principal author of "The Handbook of Personal Financial Planning", offers free counsel and advice on personal financial planning.Email: finviser.jm@gmail.com