Powers of attorney, advance directives, living wills and wills: What you need to know.

 

It’s important to do more than just discuss your wishes with them—a conversation that may later be misremembered or never even heard by everyone involved. You need to put your wishes in writing.
It’s important to do more than just discuss your wishes with them—a conversation that may later be misremembered or never even heard by everyone involved. You need to put your wishes in writing.

Your family can’t read your mind. As much as you’d like to think they can and that they will honor your wishes if you can no longer communicate with them, the fact of the matter is that they can’t.

That’s why it’s important to do more than just discuss your wishes with them—a conversation that may later be misremembered or never even heard by everyone involved. You need to put your wishes in writing. And the only means to legally do that is through powers of attorney, advance directives, a living will, and, of course, a will.

“I’m as healthy as a horse,” you may say, “I’ve got another good twenty years or so.” That may be true. Given your present medical condition and your family history, you may easily live to be 110. On the other hand, you could slip and fall tomorrow. Or, even if you’re the most careful driver in the world, that other driver coming through the intersection may not be.

First things first

Contact an elder law attorney to see about creating a packet of every document necessary for your estate, ensuring that each is properly witnessed and that works in concert with other. Yes, you can probably find forms available online for free (or at minimal cost) and save a buck or two.

On the other hand, your actions could also mean that your family endures hurtful, divisive arguments and then have to spend thousands of dollars working with an elder law attorney after the fact in an attempt to fix unnecessary mistakes.

Do any of the following apply to you and/or your spouse?

  • You don’t have any children
  • You have minor children
  • You have problem children
  • You have children that live out of state
  • You have a disabled family member
  • You have a taxable estate for federal and/or state estate tax purposes
  • You have an incapacitated spouse in need of long-term care
  • You have substantial assets in 401(k)s and/or IRAs
  • You own one or more businesses
  • You own real estate in more than one state
  • You recently lost a spouse or other family member
  • You want to leave some or all of your estate to charity
  • You were recently divorced
  • You’re in a second (or later) marriage

If so, it’s best to hire an elder law attorney to complete the following documents. It’s that simple. Think your spouse can handle it on your behalf? What happens if you’re in the same car together at the time of an accident?

If you don’t have a written plan in place, there may be no one with the power to pay your bills and your wishes for medical care may not ever be known. What’s more, it may be the state, your state’s department of revenue, the IRS, a probate lawyer and/or another elder law attorney that will receive the bulk of your estate. Is that really what you want? Didn’t think so.

Financial power of attorney

Yes, it’s difficult to sign away access to your financial accounts. On the other hand, financial power of attorney (or durable power of attorney) cannot take control of those assets to make decisions on your behalf until you’re unable to make decisions for yourself.

Keep in mind that they just may need that power to, say, pay your medical bills while you’re unable to communicate your wishes. Or your property taxes so that you can retain ownership of your home.

You can begin the process of selecting a financial POA by first asking the individual you’re choosing if they’re comfortable taking on the role. Don’t assume they’ll happily do it (and do it well) just because you assigned them the role on the document. Depending upon what powers you grant in the document, your agent may have the power to:

Depending upon your circumstances, it may be important to consider a gifting clause in this document. This is because an agent is not permitted to gift or transfer any money, personal property or real estate to himself or herself unless the POA document contains specific authority to do so. Think that’s not important? Thinking you want one of your children to be your caregiver? Then they may need to be reimbursed for your care needs and that’s not possible otherwise.

Note: If you’re working with a parent in these matters, you may need to file Form 2848 (Power of Attorney and Declaration of Representative) to communicate with the IRS on your parent’s behalf. As it is sometimes challenging to work with the IRS regarding a POA document you also may want to enlist an experienced tax professional.

Medical power of attorney

Similar to the financial power of attorney, this document allows you to determine who will make health care decisions on your behalf when you’re no longer able to communicate your wishes. It could be the same person as the financial power of attorney, it could be another dependent or it could be someone else—another relative, clergy or a close friend.

Splitting the duties and responsibilities between the roles (ensuring neither has complete control over both finances and health) could occur because one or the other of the children is just naturally the best choice for the task. Say, one child is an accountant but lives out of state and the other is a stay-at-home mom who lives down the street. Or it could be done because you don’t want just one member of the family to control both your medical care and finances.

Again, start by asking the person you’re going to designate if they’re comfortable taking on the role regardless of personal feelings or influence from family and friends. This is perhaps even more important for the medical power of attorney as they may make decisions regarding:

  • Doctors and other health care providers
  • Types of treatment (or whether to withhold it)
  • Care facilities
  • End-of-life decisions

Ideally, both POAs would (and sometimes would need to) work together in making decisions. This could occur when the medical power of attorney determines that a move to memory care is required and the financial power of attorney needs to sign the checks.

Without these two documents in place, your family will have to go to court to establish guardianship on your behalf in order to make decisions on their behalf. This will require the advice of an eldercare attorney, time that could be better spent attending to your needs and, again, possibly hurtful, divisive arguments.

Advance directives and/or living wills

Although you don’t require an elder law attorney to create advance directives, you can be sure that it works hand-in-hand with your other documents if you do. Keep in mind:

  • Advance directives can’t be applied unless there is a medical power of attorney in place to advocate on your behalf.
  • The medical bills for your care can’t be paid unless the financial power of attorney has access to your accounts.
  • Finally, it’s the caring thing to do if you don’t want to leave a mess for your family to clean up.

An Advance Directive or Living Will is simply your opportunity to specify your wishes for medical care at the end of your life. These documents generally come into effect when you can no longer communicate your wishes. They include your desires as whether to allow:

  • Cardiopulmonary resuscitation
  • Mechanical ventilation
  • Antibiotics
  • Hydration
  • Feeding

If you choose to complete an advance directive on your own, Aging with Dignity offers an easy-to-fill-out “Five Wishes” template for recording your medical treatment preferences that meet the legal requirements of 42 states.

In addition to Advance Directives or a Living Will, you may also want to look into Do-Not-Resuscitate (DNR) orders. Depending upon the state in which you live, there may be both out-of-hospital and in-hospital DNR’s. Be aware that these may be mutually exclusive.

If you’re in the hospital but there is no in-hospital DNR signed, the hospital personnel will attempt to resuscitate. If you’re at home when emergency responders arrive to only find an in-hospital DNR, they will ignore it.

You’ll also want to make your wishes known for any funeral or memorial services—whether this is included in your Living Will or completed through a website such as Everplan.

The important thing is that once you’ve completed your advance directives, you should make sure that your healthcare power of attorney has copies. As none of your family has the time or wants to dig through papers at your home in the middle of a health crisis, you should also keep copies in a safe and accessible place.

It isn’t easy and it isn’t much fun to plan for medical decisions—particularly when it concerns end-of-life decisions, but it’s the responsible, compassionate thing to do for your family. You’ll also have the peace of mind of knowing that your wishes will be followed when that time comes.

A will

Recognized as the cornerstone of estate planning, a will is one of the most critical documents you can create for your loved ones. Nonetheless, it is often the most neglected legal document. In fact, according to an AARP survey, 2 out of 5 Americans over the age of 45 haven’t completed a will. Think that’s too young to worry about a will? Then simply open the obituary page of your newspaper.

As unpleasant as it may be to acknowledge your own mortality, let alone actively plan for it, it’s the only way to ensure that your heirs avoid unnecessary arguments and that your possessions and assets end up in the right hands.

While, again, it isn’t required that an elder law attorney prepare a will on your behalf, it does need to meet the legal requirements of your state. If you don’t know what those are and how to complete them, you need an elder law attorney.

If you die without a valid will in place, your estate becomes intestate—which simply means your estate will be settled based on the laws of your state. With no executor named, an administrator will be appointed by a judge to serve in that capacity. An administrator would also be named if a will is adjudged to be invalid.

Unfortunately, an administrator will most likely be a stranger to both you and your family and can only follow probate laws in your state. As a result, they may make decisions that you wouldn’t approve of and that might rule against your heirs.

Keep in mind that anyone can contest your will (whether it was properly executed or not) for any number of other reasons: you weren’t competent when you signed it; it wasn’t properly witnessed, or it’s the result of coercion or fraud.

If your will is contested, it’s usually up to a probate judge to settle the dispute. Prefer to avoid these issues and ensure everything goes where you would like it to go? Again, starting with an elder law attorney is the best defense.

Can’t afford an elder law attorney?

If you don’t think you can afford a lawyer, that doesn’t necessarily mean you have to do without. There is help available. Try LawHelp.org or the AARP Legal Services Network (1-866-330-0753 toll-free). Your state’s departments of aging also might be able to direct you to free or low-cost resources, as well.

Summary

It doesn’t matter how young or how healthy you are. Along the gray mile, life happens. That’s why it’s important to make your important medical and legal wishes known in writing. Today.

Tom Text

@TomJonesNBTX

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