If you come to see me asking for just a Will, I will ALWAYS discuss with you whether you need a Financial Power of Attorney and a Health Care Power of Attorney and Living Will. It is not because I am trying to upsell my services or print more paper and kill trees. No, it is because I want to make sure you have the documents you need to protect yourself and to simplify things for your loved ones.
A proper estate plan deals with the here and now, the near future, and the distant future. A proper estate plan is not just what happens when you die. It has provisions for when your health declines and you can no longer act on your own behalf. Most of us don’t spend a lot of time thinking about the possibility of future illness, incapacitation or death, nor do you want to. Leave that to me to guide you through the process of determining what you need.
The key to recognizing which documents are necessary is to understand each document and when it becomes active. Most people know that a Will becomes active on death and deals with the distribution of your assets. It can also name a guardian for your minor children, and set up trusts to protect those assets.
Do you know there are other documents that are only in effect when you are alive but are invaluable in protecting you and simplifying things for your loved ones? A Health Care Power of Attorney and Living Will is essentially two documents in one. The Health Care Power of Attorney portion appoints an agent to act on your behalf to make health care decisions. This portion is active when you are unable to make medical decisions for yourself. This can be a temporary situation or permanent.
The Living Will portion is active when you are in an end stage medical condition. This means death is certain. A Living Will is where you indicate if you want medical professionals or caretakers to take extraordinary measures to keep you alive. This only applies when medical professionals have determined that death is certain and nothing they do will change that. This does not mean that if you have a heart attack soon after signing your Living Will that no one will try to save your life. However, if your heart stops after you have been diagnosed with a terminal condition and treatment has stopped because you are actively dying, life-saving efforts will be withheld if you have indicated this is your wish.
A Financial Power of Attorney is another document that is only in effect when you are alive. There is no requirement that you are incapacitated in order for the document to be used, but that is certainly a time when it can be important. It becomes active on signature of the agent acknowledgement and due to the powerful nature of a Financial Power of Attorney, it is very important to appoint someone you trust. A Financial Power of Attorney grants a person access to your financial assets to act as if they were you. We can put certain checks on your agent’s power, however, you need to strike a careful balance so as to not rob the document of all of its power.
If you do not have a Health Care Power of Attorney and Financial Power Attorney and you lose the ability to manage your own decisions, you will likely end up having a guardian appointed by the Court. This means a Judge will hear evidence on your mental state and will need to declare you incapacitated. A guardian will be appointed and will have to report annually to the Court regarding your care and finances. This can be an added burden on your family.
An estate plan that includes a Financial and Health Care Power of Attorney and contemplates the things that should occur in the event you can no longer participate in decision-making will provide peace of mind to you and your loved ones. Sometimes you may just need assistance from someone you trust. Either way, a proper estate planning document package can prevent a lot of stress in the future.