I Have A Will, What More Do I Need?
By Jordan Cypert
Many people believe that making a Will takes care of their family and completes the estate planning process, but good planning needs to include planning for a potential period of incapacity as well as death. Proper lifetime planning can avoid uncertainty and possible conflict within the family regarding what to do during your incapacity. This article discusses the importance of lifetime planning documents setting forth your desires regarding what happens if you become incapacitated: that is, who makes the decisions and carries out the decisions already made by you, and what decisions they can make.
Statutory Durable Power of Attorney
If you become incapacitated, managing your financial affairs may become a tall order. In order to avoid the considerable expense as well as the headaches that come with establishing a guardianship, a Statutory Durable Power of Attorney needs to be in place. The Statutory Durable Power of Attorney is a very powerful document designed to allow the designated person to manage your financial affairs. This includes the ability to write checks on your accounts, transfer real estate, and any other financial transactions within his or her power. However, you can control what powers the designated person has through proper drafting of the document. Additionally, while your agent may have broad powers over your financial affairs, the agent must always act in your best interest or be accountable to you or your estate. Nevertheless, because you usually give your agent absolute access to your assets, your agent needs to be a person you trust completely.
Medical Power of Attorney
What if incapacity or an injury prevents you from making decisions regarding your medical needs? The Medical Power of Attorney allows the designated person to consent to medical care on your behalf should you suffer an injury or become mentally disabled. The Medical Power of Attorney is designed to become effective if you become unable to make your own decisions and your physician certifies that fact in writing. The agent for health care can decide who will be the attending physician, what hospital will be used as well as consent to surgery and to drug therapies. This power is only effective during a time of incapacity, which could be from a short period of time to indefinitely. For example, if you are unconscious and rushed to the hospital, the agent under your Medical Power of Attorney would make all medical decisions for you during this time. Once you regain consciousness, this power is no longer effective and you would make your own medical decisions unless you later become incapacitated. Clients typically name their spouse, parents or siblings to make these medical decisions for them. You can name your agents to act individually or jointly in any order you choose.
Living Will or Directive to Physicians
So how do you give the physicians and your family direction when the medical decisions get really tough? The Living Will (also known as a "Directive to Physicians and Family or Surrogates" or an "Advanced Directive") allows you to make certain choices regarding the types of medical treatments that will be provided to you in the event of a terminal illness or an irreversible condition, such as failure of major organs or serious brain damage. The key is you and you alone make the decision to withdraw life-sustaining treatment in your Living Will before the need arises. As such, this document is not as much for your benefit as it is for the loved ones you leave behind. Without this document, your spouse or a family member will have to make the difficult decision of whether to discontinue your life-sustaining treatment. The decision to withdraw life support is hard enough on them, but being second-guessed by others can be overwhelming.
With proper planning, you can avoid uncertainty and conflicts by carefully planning your affairs while you have the capacity to do so. Once you are incapacitated in the eyes of the court, you no longer have the opportunity to execute these documents and a court appointed guardian would be your only option. A little planning now will go a long way to making sure your financial and medical needs are met if the need arises.
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