When you are crafting your estate plan, how you will handle illness, injury, or death can prove to be a challenging decision. It’s vital to sit down with estate attorney to determine what your estate plan says in regards to handling medical situations that could arise in advanced age or an unforeseen accident. I can’t tell you how many situations we’ve witnessed where the topic was never addressed. Whether it was out of awkwardness or a simple lack of awareness, it results in awful circumstances for everyone involved.
At Romano & Sumner, we have a detailed process that we take our clients through when forming their estate plan. This insures the safety of their estate and that medical decisions will be made by people they trust most and no one else. This list covers the documents and processes that are necessary in creating a strong legal framework to address these matters:
1. Durable Power of Attorney
The first step in estate planning is creating a durable power of attorney. This appoints an agent, and many times an alternate agent, in case you become incapacitated and can’t make decisions for yourself. The agent that is named helps manage your affairs, financial or otherwise. They write your checks, they file taxes, and can make any other decisions on behalf of the estate. This is somewhat different from a general power of attorney, who is the person that simply oversees financial affairs without your direct involvement while you have capacity. The “durable” nature means it will continue even if you become incapacitated.
A general power of attorney cannot make decisions if you lose the ability to make or comprehend decisions. So, a durable power of attorney is given to the person that you trust to handle all assets and arrangements of yours in your absence. It can be difficult deciding who to name durable power of attorney, as there are many instances of relatives and friends abusing the power and absolute trust is needed.
2. Medical Power of Attorney
This is the person who makes all your medical decisions in case you can’t make them for yourself. Sometimes it’s the same person named in the durable power of attorney, sometimes not. The danger in appointing the same person as your durable and medical power of attorney is that the skills and the mindset for each role don’t always overlap.
If someone is good with money, and you trust them to make smart decisions with your estate, then you might be comfortable giving them the durable power of attorney. However, you might not trust them to make the right decisions regarding your health care or treatment decisions.
3. The Living Will
An Advance Directive or a living will is a document that states what you want to happen if you were in a terminal or irreversible condition.
- A terminal condition is one in which there is no hope of recovery, and there’s a definite time frame. This typically ranges from a couple of months to half a year, for how long the individual has left.
- An irreversible condition is the exact same thing, except the individual could live several more years, or even several more decades.
This document stipulates how long you want to be on life support, or if you want life support at all. Without one of these documents that express your desires, the person asked to make this difficult decisions may not know what to do, or worse, there may be competing interests or opinions from loved ones. They may not know exactly what you would prefer in this situation, and it’s typically too late to inform them. Clients can come in and change the stipulations of the living will if they change their minds or feel the need to add more further stipulations.
4. Declaration of Guardian (Before Need Arises)
The final document that we do is called the declaration of guardian. This acts as a backup for the two powers of attorney. It is a measure to prevent a situation arising from someone declaring guardianship over you if you were incapacitated. If a child or relative is disgruntled at your choice for power of attorney, then they may apply for guardianship over you. If they’re successful then it nullifies the power of attorney and all decision-making power is transferred.
In order to prevent that type of contest we name the same person who has durable power of attorney as guardian of the estate in a declaration of guardian. We usually name the person who held the medical power of attorney as the guardian of the person. Most importantly, however, is that a declaration of guardian can state who you DO NOT want to be either guardian of the estate or guardian of the person. All of these measures can avoid a messy affair where there would be a power struggle over the estate or of your person.
Make A Plan Today
Whatever age you may be, it’s never too early to begin thinking about your retirement, your health, and your estate too. If there is no plan created then the decisions are out of your hands. It is better to be prepared for the worst and have legal documentation outlining your wishes, if the unforeseen happens and you can no longer express them yourself.
We recommend seeking out an experienced estate planning attorney to navigate you through this complicated process. An estate lawyer can provide a springboard of very important questions that should be considered when planning an estate with your spouse. At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like estate planning or creating a will. If you have any questions, please feel free to contact us today.