In my previous post, I discussed why a Will is essential for almost everybody, so that a person can decide how his property is disposed of upon his death, instead of having the State decide for him, per a preset list of rules. And while planning for what happens after death is a large part of what Estate Planning Attorneys do, it’s not the only thing. Another essential element of my job is to plan for who will make decisions for my client — concerning their health care and their finances, in the event that they are incapacitated and unable to make these decisions for themselves. The key is that I want to avoid having a Guardianship established for my client, because Guardianships are timely and expensive, involve tremendous judicial oversight, and should only be used if there is no other less restrictive alternative.
While a Will is about what happens after my client dies, there are three documents that I use to prepare for what should happen if my client is alive, but incapacitated — they are a Durable Power of Attorney, a Designation of Health Care Surrogate, and a Living Will.
- A Durable Power of Attorney is a document in which the client, often known as the Principal, designates who will make decisions for them with regards to their finances and other related issues, such as opening their mail and representing them in court. There are two types of Powers of Attorney. The first becomes effective immediately. The instant it is signed, the person appointed, often known as the Agent or the Attorney-in-Fact (as opposed to an Attorney-at-Law) can go to the bank and make transactions upon the Principal’s behalf. A springing Durable Power of Attorney on the other hand, does not become effective until the Principal is incapacitated, for example in a coma, or suffering from senile dementia. Whether I recommend a springing or a non-springing Durable Power of Attorney to my client often depends on a number of factors. These include their age, who they are choosing as their agent, and their relationship with that person. I prefer non-springing Powers of Attorney because they are easier to get banks to accept, but that’s not always the best choice for the client.
- A Designation of Health Care Surrogate is similar to a Durable Power of Attorney except that the Principal designates who they want to make health care decisions for them in the case that the Principal is unable to make them for themselves. For this designation, there is no “springing” vs. “non-springing” as they only come into effect upon incapacity. Note that a Designation of Health Care Surrogate can cover any type of medical situation. One attorney I used to work for gave the example of “Suppose you were in a coma and had gangrene in your finger. Someone needs to make the decision whether or not to operate.”
- A Living Will is the third document that I prepare for clients. This document expresses the client’s wishes if they are in a persistent vegetative state, or an end-stage condition. Think Terri Schiavo. The client can designate whether or not they wish to be kept on life support as long as possible, or if life support should be discontinued. In addition, the client can state whether nutrition and hydration (i.e. food and water) should be provided or withheld.
It is important for you to have a Durable Power of Attorney and Health Care Surrogate, so that in the case of your incapacity, there is a less restrictive alternative to a Guardianship. A Living Will is important so that your wishes are in writing and your loved ones can be able to follow them.