Any time during our adult life, we could experience periods when our capacity is diminished to the point where we could not communicate with our healthcare providers or handle our finances. We would be in a situation where we would have to depend on others to make healthcare decisions for us, and we would have to rely on trusted members of our family or friends to step in and pay our bills, file our taxes, handle any financial matters that might come up.
The document that allows us to appoint someone we choose, because we trust them with our health, is called an Advance Directive, and it has three parts; there’s (1) the health care power of attorney, where we name our agents and describe what we authorize them to do on our behalf; (2) the Living Will, where we express our wishes regarding life support at the end of our lives; and (3) the post-death instructions regarding organ donation and funeral or cremation instructions. Don’t be confused by the term “living will” – it is not the Will that distributes our property. We recommend having conversations with the named agents, so they know as much as possible about how we think about healthcare, and any special wishes we may have, in particular when it comes to end of life care. Agents may need to step in to help on short notice – they need to know they were named.
You may wonder what happens when someone doesn’t set up an Advance Directive. Their family will have to petition the local court to appoint a Guardian of the Person, who can then talk with the doctors and make decisions. That is a legal proceeding that involves court and attorneys’ fees that will no doubt exceed the cost of setting up an Advance Directive. To make matters worse, should the family not see eye to eye on who the court should appoint, the whole process could end up in costly litigation.
With regard to getting help with financial matters during incapacity, we can legally authorize persons we choose, by naming them as agents in a durable power of attorney. Since agents deal with our property as fiduciaries, they carry responsibility and are exposed to liability. The clearer we describe what it is we want them to do for us, the better for us and for the agent. If we don’t have a power of attorney, the family has to petition the court to appoint a Guardian of the Property, another court process that will undoubtedly cost more than any attorney’s fee for setting up a power of attorney.
If you would like to set up these documents, an experienced estate planning attorney can guide you through the process of choosing the right agents. The attorney can also make sure that the documents are drafted so they unambiguously reflects your wishes. This helps you and all of those who care about you and want to help.
