You probably think of estate planning as something you do to distribute your assets after you die, but the reality is that much of your estate plan has to do with what happens if you need help while you are still alive. Your will or trust disposes of your assets after your death, but your powers of attorney, advance directives, and DNR are there to guide your loved ones and care providers in the event you are incapable of making or expressing decisions.
What exactly is each of these documents, and how do they work together? Some of them are known by different names in different places, adding to the confusion. Let’s take some time to look at each of these estate planning tools and their place in your estate plan.
It’s possible that there will never come a time in your life when you will be legally incapable of making your wishes known. Unfortunately, that is not something that you can count on. At this time, no one can see the future and know if they will develop Alzheimer’s or some other form of dementia. And the elderly are not the only ones who need to worry about legal incapacity: young people can suffer a sudden accident or illness that makes them unable to speak or act on their own behalf. It’s better to have planning documents that you never need, than to need them and not have them.
A power of attorney is a document by which you (the principal) designate someone you trust (the agent) to act on your behalf with regard to your financial affairs. “Durable” means that this grant of authority continues after you are legally incapacitated. You can also make a power of attorney “springing,’ meaning that it would not take effect unless and until you were incapacitated.
You can make a financial power of attorney as broad or as narrow as you wish. Talk to your estate planning attorney about things you would and would not want your agent to be able to do on your behalf. You can revoke a power of attorney at any time until you become legally incapacitated.
An “advance directive” is an umbrella term for documents that allow you to express wishes about your health care, including end-of-life care, ahead of time. Advance directives for health care include documents such as a health care power of attorney and a living will. Some advance directives combine these documents.
As with a financial power of attorney, a health care power of attorney allows you to designate someone to make medical decisions for you if you are no longer able to make them for yourself. You might execute a health care power of attorney as a precaution if you are planning to undergo major surgery, or just to be on the safe side in case of a severe, unanticipated health issue that incapacitates you.
A health care power of attorney generally takes effect when your primary physician, plus another qualified health care professional, certify that you are no longer able to make your own health care decisions. What kind of decisions can your agent make on your behalf? You can authorize your agent to review your medical records and to make any and all medical decisions for you, including decisions to provide or withdraw hydration, artificial nutrition, or other treatments designed to prolong life.
A living will is a document that allows you to set forth specific medical treatments you would or would not want to prolong your life; it can also address your wishes regarding things like pain management and. While it might feel easier to just leave things up to your agent, the guidance offered by a living will can lift a tremendous burden off of the agent’s shoulders (at a time when someone they love is gravely ill), so that they can know they are acting in accordance with your wishes.
Don’t expect that your agent will know what you would want. You, yourself, may have difficulty figuring this out. Consider your values. Is it worth it to be alive at all costs? Are there any circumstances you feel would make your life no longer worth living? Would you want your life extended only if it was possible your condition could be cured? These are thorny questions you should talk over with your doctor before committing a decision to paper.
Obviously, the role of your agent for health care decisions should be someone you trust implicitly, preferably someone who lives close to you and can be present at a hospital to see your condition and consult with your doctors.
“Do Not Resuscitate” orders and “Do Not Intubate” orders are not technically considered advance directives, though you can include them in your living will. When you are treated in a hospital, you can ask your doctor to put a DNR and/or DNI order in your file, especially if it is the first time you have been treated at that facility. Absent a clear directive not to resuscitate or intubate, medical staff will usually take these life-prolonging measures, which can be very painful and can extend suffering rather than meaningful life.
Planning ahead for potential incapacity can be challenging, but putting in the time and effort to create medical and financial powers of attorney, living wills, and DNR orders can give you and your loved ones peace of mind. If you have further questions about these documents, please contact our law office to schedule a consultation.
© 2021 The Law Offices of Dana M. Kyle, P.A.