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Powers of Attorney, Healthcare Surrogates, & Living Wills - OH MY!
Every estate planning client that comes into my office tells me they need a will or a trust. They are most often correct. However, their planning needs don't stop there. There are - what I affectionately call - a "cast of supporting characters" which are almost every bit as important as the will or trust. I'll introduce and explain each in detail below. However, before I do, I want to make sure that everyone understands exactly what a Last Will an Testament does. The main thing a will does is transfer title to your property pursuant to your wishes. This includes bank accounts, cars, real estate, and other titled and non-titled property. It further allows you to designate a guardian of your minor children should something happen to both you and their other parent. Lastly, if you leave all your property to your minor children, your will can allow you to designate a trustee of the property and can include the terms of how you want the trust administered. These are all very important! However, there are many things that a will does not do, such as:
A Will Does Not Tell a Doctor Who Can Make Medical Decisions for You
You need a Designation of Healthcare Surrogate for that. This document gives someone else the ability to make medical decisions on your behalf should you ever end up incapacitated or unable to make your own decisions. I have referred to this as the "Terri Schiavo" document - if she'd had one, you never would have heard her name. Someone - either her husband or parent - would have been legally able to make the decision regarding her medical care and that would have been the end of it. While death is a certainty, we never know what may happen leading up to it. It is very important to plan for all possibilities and this allows you to do so.
A Will Does Not Designate a Power of Attorney
Everyone has heard the term "power of attorney" but not everyone is familiar with exactly what a power of attorney does. A power of attorney allows someone to make financial decisions on your behalf. Upon your incapacity, that power ends. That seems counter-intuitive, doesn't it? That the document giving someone the ability to make decisions for you should end when you need it most. However, there is a remedy for this problem! A Durable Power of Attorney will continue through your incapacity. This allows someone to make financial decisions for you even if you are incapacitated. So the mortgage and electric bills can be paid even though you may not be able to do it yourself.
A Will Does Not Tell Your Healthcare Surrogate What you Want
This is the job of a Living Will. It is great that you have a Designation of Healthcare Surrogate. But you need to tell them what you want! You may have thought you had that conversation with them, but what if they forgot your wishes? What if you never had the conversation in the first place? Your Healthcare Surrogate may end up keeping you on life support if you wanted the plug pulled, or vice versa. The Living Will (sometimes called an "Advanced Healthcare Directive") is your personalized set of instruction to your Healthcare Surrogate.
This document also has an added benefit - it can keep your Healthcare Surrogate from needless confrontation. As an example: it is not difficult to imagine a scenario where the daughter, Suzie, is the Healthcare Surrogate for her mother, Geneva. When it comes time to make the decision to take her off of life support, Geneva's other children come to Suzie saying "You can't pull the plug! You'll be killing mom!" However, Suzie can hold up the Living Will and say "This isn't my decision - this is mom's decision. I'm just carrying out her wishes." This saves Suzie from carrying guilt about making the decision to remove her mom from life support and keeps the other children from holding her accountable for that decision.
As you can see, wills and trusts are absolutely important. However, they aren't the end-all in estate planning. These other documents protect you and your loved ones in a variety of ways. If you don't have these documents, or would like to speak about an estate plan review, please contact us, to set up a consultation to get yourself protected.
As always: the information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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