Episode 75: How Living Wills and Last Wills Get Confused All the Time
Episode 75
Host: Jill Mastroianni
How Living Wills and Last Wills Get Confused All the Time
A living will and a last will and testament sound similar but they do completely different jobs. In this episode, Jill breaks down the difference in plain English so you know what goes where and why it matters. She also walks through a recent Michigan court decision that changes how advance directives work and raises a bigger question: who gets to decide in a medical crisis?
What You’ll Learn in This Episode
Why these documents get confused. “Living will” and “last will” sound similar, but they operate at completely different times and serve different purposes.
What a living will actually does
Covers medical decisions when you’re alive but unable to speak
Addresses questions like life support and end-of-life care
In Michigan, this is part of an advance directive, not a standalone document
The role of a patient advocate
The person you name to make healthcare decisions for you
Can act any time you’re incapacitated, not just at end of life
What changed in Michigan law (April 2026)
A court struck down a rule preventing patient advocates from honoring a pregnant patient’s end-of-life wishes
The case centered on reproductive freedom under Michigan’s constitution
What a last will and testament does
Takes effect after death
Controls distribution of probate assets, appointment of a personal representative, and guardianship for minor children
Does not control medical decisions
The simplest way to think about it
Living will = medical decisions while you’re alive
Last Will = financial and administrative decisions after death
Why this matters for your family
A living will gives direction in a hospital room
A last will gives structure after death
Resources & Links
Watch this episode on YouTube: https://youtu.be/N4in8DLF7Mw
Related Episode: How to Write Your Own Will and Why You Shouldn’t: https://www.deathreadiness.com/podcast/50
Submit a Question for Upcoming Guest Blair Martin (Financial Advisor): Email: jill@deathreadiness.com
Connect with Jill:
Website: DeathReadiness.com
Email: jill@deathreadiness.com
Learn more about Jill’s solutions
Subscribe to the Death Readiness Dispatch!
Ask a question for Tuesday Triage
Did you enjoy this episode? Share it with someone you care about.
-
A living will and a last will and testament sound similar, but they do completely different jobs. Today, I’ll walk you through both and explain why one recent court decision in Michigan makes this conversation more important than ever.
Welcome to The Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni — estate planning attorney, death readiness guide, and your translator for wills, trusts, probate, and the conversations most families avoid. If you’ve been wondering things like, ‘Can a trust protect what I leave to my children?’ ‘What happens if I give someone power of attorney over me?’ and ‘How can I help my parents while respecting their independence?’ You’re in the right place.
If you don’t know what you’re asking for, you’re not going to get what you want.
In 2003, I went to St. Petersburg, Russia, for a study abroad program. I was a Russian major, so you’d think I’d be prepared… in theory.
In reality, this was basically my first time abroad, unless you count a quick eighth grade trip to Canada after a track meet in Buffalo, where my dad took me to see Niagara Falls from the Canadian side.
So, not exactly extensive international experience.
About a week before I left, I was sitting at my Aunt Eileen’s dining room table with my family, and I joked that my Russian skills were about on par with my two-year-old cousin’s developing language skills. She was sitting next to me in her high chair.
I could say things like, “I want potato.” Ya khochú kartóshku.
And not a whole lot beyond that.
Fast forward to Russia. I figured out the subway, got to class, and started to feel a little confident. I decided it was time to go grocery shopping on my own.
I grabbed some bread and thought, “I’ll get some cheese.” It seemed simple enough, except it wasn’t.
I didn’t really know how to ask for how much cheese.
So I stood there, nodded confidently, and watched the person behind the counter cut what can only be described as an absolutely enormous block of cheese. A block so big I wasn’t sure it would fit in my host mother’s refrigerator.
And of course, I pretended that was exactly what I meant to order.
Turns out I didn’t know how to ask for what I actually wanted.
Estate planning might be in English but it can feel like a different language.
And if you don’t know what you’re asking for, you can end up with something very different than what you intended.
Also, here’s a quick full circle. That little cousin in the high chair is now the client care coordinator for my law practice and built and maintains the Death Readiness website. And now we get to work together every day, which feels like a pretty great full circle.
Before we get into today’s episode, I want to give you a preview of what’s coming next and a chance to get your questions answered.
I know it’s been a lot of solo episodes this past year… but guests are coming back.
And one of our next guests is Blair Martin, a financial advisor.
I spend a lot of time making estate planning make sense. Blair does the same thing with money. She’s also my financial advisor and a good friend.
A couple of years ago, after I lost my job, she called to check in and asked if I wanted to walk through my finances with her. She wasn’t trying to sign me as a client. She was just using her skills to help a friend who needed it.
I was in a vulnerable spot and she was exactly the person I needed.
So now I want to bring that same kind of support to you.
If you’ve been wondering things like:
Can I actually afford to retire?
Do I have enough to help my adult kids now without putting myself at risk?
Am I doing the right things with my money… or just hoping I am?
Send me your questions.
Blair’s going to be here to answer them.
You can email me at jill@deathreadiness.com. That’s jill@deathreadiness.com
Okay, let’s get into today’s episode.
A few nights ago at dinner, while I was deciding which question to answer for today’s Tuesday Triage, I asked my husband and daughter if they knew what a living will was.
My husband said he didn’t.
My daughter said, “Isn’t it just a will you make when you’re alive?”
She’s not correct, but it’s not a bad guess, and it’s exactly why this question comes up so often.
This question is from Ike in Michigan. He came to a workshop I gave a couple of weeks ago called How to Write Your Own Will—and Why You Shouldn’t. I’ll link to the podcast episode on that topic in the show notes if you want to go deeper.
During the workshop, I walked participants through how to write a holographic will—which is a will entirely in your own handwriting. And under Michigan law, that can be valid if it’s signed and dated.
At the end, Ike asked a really good question: “How do I know what goes in my living will versus my regular will?”
So that’s what we’re tackling today.
What is a living will… and how is it different from a last will and testament?
Because Ike is in Michigan, I’m going to answer this based on Michigan law, but the big picture is the same across the country.
A living will and a last will and testament are two completely different documents that do two completely different jobs. Yet, they get mixed up all the time.
So let’s start with the living will.
A living will has nothing to do with your money or your stuff.
It’s about medical decisions, specifically, what you want to happen if you’re alive but unable to speak for yourself.
Living wills are really important if you have a serious illness, are in a terrible accident, or are facing other end-of-life situations.
It answers questions like:
Do you want life support?
Do you want certain treatments continued… or stopped?
In Michigan, the person who makes these decisions for you is called your patient advocate. And the language around this can be pretty direct. You’ll often see something like:
“I authorize my patient advocate to decide to withhold or withdraw medical and mental health treatment, including the provision of artificial nutrition and hydration, which could or would allow me to die. I am fully aware that such a decision could or would lead to my death.”
Michigan doesn’t technically recognize a standalone “living will” as its own legal document.
Instead, those end-of-life decisions get built into something called an advance directive.
And in Michigan, that advance directive has two key pieces.
The first is what most people think of as the “living will” part—this is where you spell out your wishes. What treatments you would want, what you wouldn’t want, and how you feel about things like life support if you can’t speak for yourself.
The second is the patient advocate designation where you name someone to step in and make medical decisions for you if you’re unable to make those decisions yourself.
A living will gives your people a roadmap. It helps them make decisions with confidence instead of guessing in a really difficult moment.
And this is actually an area where the law in Michigan just changed, literally within the last few days.
On April 16, 2026, a Michigan trial court issued a decision that directly impacts how advance directives work.
Until now, there was one major limitation.
If a patient was pregnant, a patient advocate could not choose to withhold or withdraw life-sustaining treatment if doing so would result in the patient’s death, even if that’s what the patient had clearly expressed they wanted.
So in that situation, the patient’s prior decisions did not control.
That restriction was built into Michigan law and even shows up in the standard patient advocate forms.
In October 2025, a group of patients, doctors, and advocates challenged that rule in court. They argued that it violated Michigan’s constitutional protections around reproductive freedom.
In 2022, Michigan voters passed a constitutional amendment, often referred to as the Reproductive Freedom Amendment, which gives individuals a fundamental right to make and carry out decisions about pregnancy and related medical care.
The plaintiffs argued that deciding whether to continue or stop life-sustaining treatment, even during pregnancy, is part of that protected right.
Now here’s what makes this case a little unusual—
The state defendants, including Governor Gretchen Whitmer, actually agreed with the plaintiffs that the law was unconstitutional.
So you might be thinking… wait, if everyone agrees, is there even a case?
And the answer is—yes.
In this case, the court recognized that even though the current officials agreed, that could change. New officials could take office. And as long as the law stayed on the books, hospitals were still required to follow it.
So without a court decision, the risk, and the confusion, was still very real.
And the court agreed.
Judge Sima Patel struck down that pregnancy restriction, which means doctors and patient advocates are no longer automatically blocked from honoring a pregnant patient’s wishes about life-sustaining treatment.
This case was about one question:
Who gets to decide a pregnant patient’s fate?
The patient—and the person they chose to speak for them?
Or the state?
And at least for now, the court came down on the side of the patient.
Now let’s move from living wills and advance directives to a last will and testament.
A last will and testament has nothing to do with medical decisions.
It only comes into play after you die, and it answers a completely different set of questions:
Who gets your probate assets?
Who’s in charge of wrapping things up?
And who’s taking care of your minor children?
It’s your instruction manual for everything you leave behind that doesn’t pass automatically by, for example, beneficiary designation.
So if we zoom out, here’s the simplest way to think about it:
A living will is about decisions while you’re still here but can’t speak.
A last will and testament is about decisions after you’re gone.
A living will is medical.
A last will and testament is financial and administrative.
They don’t overlap and you really do want both.
But this isn’t just about documents.
A living will gives the people in a hospital room direction.
A last will and testament gives your family structure when everything feels uncertain.
And both give them something even more important, the confidence that they’re getting it right.
One more thing before you go—Blair Martin is coming on the podcast soon, and I want to make sure we’re answering the questions that are actually on your mind.
If money feels a little unclear, a little overwhelming, or like something you’ve been meaning to “figure out”… this is your chance.
Send me your questions at jill@deathreadiness.com, and we’ll tackle them together.
Thanks for listening today.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I'm April, Jill's daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.
