Estate and Advance Health Care Planning

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Sometimes, life hands us unexpected challenges, which cause us to consider whether our affairs are in order. Many of us have plenty on our plates, dealing with day-to-day responsibilities and do not relish the idea of tackling the details of future planning, even though we know it is an important part of life. Thoughtful estate and advance care planning offers many advantages, both for the individual and for the loved ones who want guidance about important decision-making once a person needs assistance managing his or her affairs, becomes incapacitated or dies. It is never too early to plan, and the resulting financial protection and peace of mind can be priceless for everyone involved.

So, what documents do we need? Consider at least four basic (4) documents to express your wishes. First, everyone ought to have a Durable Power of Attorney. This document allows you to choose a highly trusted person to serve as your “Attorney-in-Fact,” to handle your financial affairs if you cannot manage or do not wish to manage your own affairs. This document can save loved ones a great deal of stress and money if an individual becomes incapacitated and needs someone to have the legal authority to pay bills, sell property and handle a range of financial matters. The legal authority given to the Attorneys-in-Fact ends upon death.

Second, everyone should consider a Health Care Power of Attorney. This document allows you to choose trusted individuals to make a range of health care decisions if you cannot make or communicate your own wishes for care. In deciding who to name as your Health Care Agent, consider who will do their best to be present and carry out your wishes.

Third, consider a Living Will, sometimes called an “Advance Directive for a Natural Death.” A Living Will allows you to clearly express your wishes for end-of-life care if (1) you have an incurable or irreversible condition that will result in your death within a relatively short period of time; (2) you have become unconscious, and your health care providers have determined that, to a high degree of medical certainty, you will never regain consciousness; and/or (3) you are suffering from advanced dementia or any other condition which results in the substantial loss of cognitive ability, and your health care providers determine that, to a high degree of medical certainty, this loss is not reversible. Many individuals have strong feelings about wanting (or not wanting) life-prolonging medical care toward the end of their life. It is crucial to make your wishes known to your loved ones and to medical professionals. A Living Will is an excellent way to make sure that your personal wishes are followed.

Before either a Health Care Power of Attorney or a Living Will can take effect, a physician must decide if a person lacks capacity to make or communicate his or her own health care decisions. And be sure to discuss your specific health care and end-of-life care wishes with your doctor and those individuals who will serve as your agent(s).

Finally, it is always a good idea to have a Last Will and Testament. In general terms, a Last Will and Testament allows you to decide who gets your property when you die. In this document, you will name someone to serve as “Executor” (or Executrix or Personal Representative), who has the legal authority to settle your estate in keeping with your written wishes. If you do not have a safe, secure location to store your will, you can take the original Last Will and Testament to the local Clerk of Court’s office for safekeeping.
While it is not required that an attorney draft these (and other) essential estate and advance health care planning documents, it is a very good idea to have professional guidance. There is a lot of incorrect legal information floating around and it is wise to get skilled advice to ensure that your documents are customized to meet your needs and wishes, as well as all legal requirements. Well-drafted estate planning documents frequently manage your needs for many years, successfully putting your affairs in good order and giving peace of mind.
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Charlotte-Anne T. Alexander, Attorney at Law, whose practice focuses on elder law and estate planning. Colombo Kitchin Attorneys, 252-321-2020.