Estate - Beyond The Living Will

Living wills have received a great deal of attention due to the recent Terry Schiavo situation. Because her end-of-life wishes were in dispute, family members battled each other in the courts over her treatment and care. By having a proper Living Will, you can avoid such confusion. But a Living Will doesn't ensure you have all your bases covered. There are other equally important documents you must have in place.

A Living Will deals with end-of-life issues. But what if you're incapacitated-unable to make your own medical decisions-- for a short time? Who makes medical decisions for you then? What if you're widowed, divorced or unmarried and you don't have a spouse who can legally make medical decisions when you can't? A health care power of attorney allows you to state whom you choose to make medical decisions on your behalf should you not be able to make them yourself. You can also list alternates, should your first choice be unable or unwilling to serve.

A health care power of attorney is especially important for those who have lost a spouse and have several living children. Often if Mom or Dad become seriously ill, it's the out-of-town child that pushes to do everything they can to extend their parent's life. The last time they saw Mom, she was busy fixing Thanksgiving dinner. Now that she's in a coma, they have trouble grasping the concept that Mom will never be the same again. And if Mom doesn't wish to be hooked up to machines for weeks on end, her out-of-town child might not understand.

You can just imagine the kind of arguments that can arise when children don't agree on the proper care of their parent. You can eliminate that situation by designating one child to be your attorney-in-fact. Clearly state in writing through your Living Will and your health care power of attorney, what your specific wishes are. Communicate those to your children, especially your chosen representative. Then if the time comes, you've greatly eliminated any possible confusion and ambiguity.

A health care power of attorney is activated by your incompetence. Incompetence is often determined based on the opinion of two doctors. With the new HIPPA regulations, this can be a problem. For instance, your doctors may not be willing to offer that opinion citing HIPPA restrictions (HIPPAA does not restrict release of information in those situations). So make sure your health care power of attorney includes language authorizing the release of that information.

With all the focus on health care and medical issues, many people forget the practical financial issues that can arise when someone is incapacitated. I've seen first hand situations where one spouse develops dementia but still has assets in his or her name. The other spouse is helpless to manage those assets or use them to help cover their loved ones' care. In these cases, the courts have to determine guardianship, which is not only expensive, but emotionally draining for the family.

All this can be avoided with a Durable Power of Attorney for assets. In this document, you choose a representative to make financial decisions on your behalf. You determine when you would like their authority to begin. This makes it much easier to pay your bills, file your taxes, manage your retirement accounts, etc. And again you can list alternates in case something keeps your first choice from serving.

If you have minor children, there's one more document you really must have. The Appointment of Guardian states your choice for who will raise your children in the event of your death. The court still has to make guardianship official, but this document will clearly express your wishes. This document can help your kids avoid being caught in a legal tug-of-war.

As the Terry Schiavo case shows us, these documents aren't just for the elderly. Having them in place will not only make it easier on your loved ones should the unfortunate happen to you, but they will also help ensure that you are properly cared for according to your wishes.