My earlier post on powers of attorney forms touched heavily on the issue of incapacity. The specific question addressed by a power of attorney form is, “who will make my financial decisions and handle my financial affairs if I am unable to do so on my own?” If a person becomes incapacitated and does not have a power of attorney form on file, it is possible that a conservatorship will have to be created to manage the finances of that person. This is incredibly expensive and creates much unnecessary heartache for those who wish to care for their loved one; this mess can be prevented for a fraction of the cost and trouble by appointing an attorney-if-fact with a properly executed power of attorney form.
Not all decisions that must be made for an incapacitated person are financial, of course. Though care for finances is certainly important, who will decide which medications can be administered? Who will have access to health care documents and records? Who will get to decide if the you should be cared for in a hospital or in an assisted living facility? Should you be visited by clergy? What decisions should be made about life support? Importantly, once you appoint someone to make these decisions for you, how will they understand your beliefs and values so he or she makes the right decisions? All of these questions can be addressed by creating a valid health care directive (sometimes called a living will or an advanced directive).
Your Health Care Agent
Your health care directive is where you can appoint a person whom you trust to make the right decisions about your health care. This person can be a spouse, family member, a close friend, or even a professional fiduciary. It’s usually best that the person be local; if you are in Minnesota and your health care agent is in California, that person may have a tough time meeting and talking with the professionals who are providing your care. You can (and should) also name a back-up health care agent who can act if your first choice is unable or unwilling to accept the appointment. Married couples often (but not always) name each other as their primary health care agents, then selected a trusted sibling or parent to be the back-up.
Your Values in Print
Your health care agent will be empowered to make health care decisions on your behalf. But what do you want them to do? Fortunately, you can outline your wishes in your directive. Your health care directive can specify your thoughts on life support — perhaps you wish to be kept on life support indefinitely. Perhaps you wish that your medical professionals exhaust all reasonable means to help you recover, but you don’t want to be kept alive artificially if in their professional opinion you will not regain consciousness. Maybe you do not want certain pain medications; perhaps you have specific wishes for clergy or other individuals to be present. Maybe you want to have a therapy animal present when possible. Your health care directive can provide as much information to your health care agent as you wish.
More Important Than a Will?
I often tell my clients that a power of attorney document and a health care directive — together — are oftentimes even more important than a will because we are more likely to need these documents. Most people have a better chance of becoming incapacitated temporarily at some point in their lives than they do of dying prematurely. Many people recall the case of Terry Schiavo, a very sad story of a young woman whose family could not agree on whether she should be pulled from life support. A properly executed health care directive can put your wishes in writing and avoid much family tension and heartache.
I often call a power of attorney form and a health care directive “everybody documents,” since really, everyone over the age of eighteen should have one. And of course, any estate plan is not complete without incapacity planning. A health care directive and a power of attorney form, when properly drafted and executed, can ensure you’ll receive the care you deserve in a manner that is controlled by you and is easier on your family. Many attorneys will include these documents automatically when they draft a will or trust plan. Please contact me if I can help.
Philip J. Ruce creates wills and trusts for families who want to feel secure that their loved ones are cared-for. Philip is a trust and estate attorney based in Minneapolis, Minnesota. Philip is the author of Trustee University: The Guidebook to Best Practices for Family Trustees. available at Amazon.com in paperback or Kindle edition (free chapter available here!) He also works with trustees and beneficiaries who need help with their trusts. You can contact him here.
Keywords: trusts and estates, Minnesota wills, revocable trusts, estate attorney, probate, estate planning