Health Care Power of Attorneys

The Health Care Power of Attorney

If an individual becomes incapacitated, it is important that someone have the legal authority to communicate that person's wishes concerning medical treatment. A health care power of attorney allows an individual to appoint someone else to act as their agent for medical, as opposed to financial, decisions. The health care power of attorney is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions. By executing a health care power of attorney, principals ensure that the instructions that they have given their agent will be carried out. A health care power of attorney is especially important to have if an individual and family members may disagree about treatment.

In general, a health care power of attorney takes effect only when the principal requires medical treatment and a physician determines that the principal is unable to communicate his or her wishes concerning treatment. How this works exactly can depend on the laws of the particular state and the terms of the health care power of attorney itself. If the principal later becomes able to express his or her own wishes, he or she will be listened to and the health care power of attorney will have no effect.

Appointing an Agent

Since the agent will have the authority to make medical decisions in the event the principal is unable to, the agent should be a family member or friend that the principal trusts to follow his or her instructions. Before executing a health care power of attorney, the principal should talk to the person whom he or she wants to name as the agent about the principal's wishes concerning medical decisions, especially life-sustaining treatment.

Once the health care power of attorney is drawn up, the agent should keep the original document. The principal should have a copy and the principal's physician should keep a copy with that individual's medical records.

Those interested in drawing up a health care power of attorney document should contact an attorney who is skilled and experienced in estate planning and elder law matters. Many hospitals and nursing homes also provide forms, as do some public agencies.

Living Wills: What are they? What do they do?

Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. The living will states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to draw up a living will. Like a health care proxy, a living will takes effect only upon a person's incapacity. Also, a living will is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so.

A living will, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma or a vegetative state.

Also, do not confuse a living will with a "do not resuscitate" order (DNR). A DNR says that if you are having a medical emergency such as a heart attack or stroke, medical professionals may not try to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state. Everyone can benefit from a living will while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.

For more information on end-of-life decision-making from the Mayo Clinic, click here.

Last Will and Testament

If you own assets in your name alone, they may pass from you to the people you love, as long as you leave a Will. Without a Will, your assets pass according to the State’s rules, also known as intestacy. The State may not pass your assets to the people you care about. You should be sure.

Also, you should know that...

• Assets will pass through your Will to your loved ones if the Will is written properly.

• You can reduce your estate tax liability by using a trust in a Will.

• You can protect the ones you love by creating a trust in your Will which can protect that person from creditors.

• You can protect you.

• It is important that you give your family the tools to help you if you cannot help yourself, your children from divorce or, you may protect your children who are not good with money, or those who have other problems, such as addiction or mental illness.

• You can protect disabled beneficiaries by creating a Supplemental Needs Trust for them, which preserves assets for the family, while keeping their eligibility for public benefits.

• Your Will must go through probate - using the courts to divide your property.

Revocable Living Trusts

A trust is a contract between the Grantor (the person who creates the trust), the Trustee (one who controls the trust) and the beneficiaries (those entitled to benefit from the trust). You, as Grantor, determine how the trust will be operated by the Trustee and who benefits, how and when. You can create a trust that permits you to be Trustee and give you the right to receive full benefits from it. This type of trust is typically referred to as a Revocable Living Trust and is often used as a substitute to your Will. It permits you to keep total control and access to all your assets during your life, and provides for the distribution of your assets to your beneficiaries at your death. We often refer to a revocable living trust as your ABook of Instructions. A well established advantage to Revocable Living Trusts is the avoidance of probate, which is required if you use a will to distribute your assets after death. Other advantages of Revocable Trusts, when property drafted, can include:

• Asset protection for your spouse after your death.

• Special needs planning for disabled beneficiaries.

• Asset management and protection for children who are not proficient with handling money.

• Protection of assets from a spouse=s subsequent marriage after your death.

• Disability planning in case you become disabled prior to death.

• Asset protection for your children if in bad marriages or to ensure your assets don’t go to the in-laws.

• Keeping your affairs private (as opposed to open for public review in probate).

• No court intervention required (handled entirely by Trustee you name in accordance with your detailed instructions).

• Plan for proper management of your business in your absence.

Very few revocable living trusts provide these benefits. Only a qualified estate planning attorney will know how to incorporate these protections into your plan. While a Revocable Living Trust has many advantages, it does not protect your assets from a nursing home, lawsuits, divorce bankruptcy or other creditors.

What is Probate?

It is the legal process of presenting your Will to the Court, after your death to authenticate it, and appoint your Executor. Your Executor must be appointed by the Court in order to collect and distribute your assets as stated in your Will. However, because it is a legal process, there are many steps that must be followed before your Executor can be appointed.


• The attorneys must obtain signatures from your heirs signifying they agree the Will is yours, and they will not contest it. Your heirs are your spouse and children and all must agree not to contest your Will before your Executor can be appointed. If you don't have a spouse or child, probate becomes even more complicated. Even if your heir is not a beneficiary, his waiver is still required. This can be very different in second-marriage situations, if you have minor children or if you have a child you lost contact with. If a child dies before you, then, all of your deceased child’s children will have to agree not to contest your Will, but if they are under 18, the Court will need to appoint a separate attorney to represent them. The same is true if any of your heirs are legally incapacitated, such as a retarded child or spouse with Alzheimers.

• The Executor will have to submit a family tree, filing fees, a petition, a death certificate and affidavits from the individuals who witnessed your Will. Upon receipt of all of the appropriate information (if no heirs contest it), the Court will appoint the Executor.

• After your Executor is appointed, estate administration begins. It is a period of time the law permits the Executor to accumulate the assets and report to the Court how he/she intends to distribute them. This period is a minimum of seven months after the Executor is appointed. However, in most cases, it takes a year or more. If you die without a will, the process is similar, but the State decides who gets your assets, not you.

• Unfortunately, probate is unpredictable. That's why many people chose to avoid it, but if all of your heirs agree and your assets are centralized, it can go smoothly.

Who Needs Estate Planning?

Estate planning isn’t about how much money you have, it's about protecting what you have for you, during your life and for those you love, after you’re gone. It ensures what you have gets to the people you love, the way you want, when you want.

If you were to die today, are you comfortable everything will be taken care of the way you wanted? Estate planning is legally ensuring things will be handled the way you want by providing sufficient instructions.

Estate Planning really is for everyone. It doesn’t matter if you have $40,000 or $400,000. You still have to plan for the future. Whether it’s to name a guardian for your minor children or ensure your children don’t blow through your assets if you unexpectedly die or become disabled (Terri Schiavo case).

Estate planning can only be done by attorneys, and it can be as simple as a Will, Health Care Proxy, Living Will and Power of Attorney. It can also include a revocable, probate-avoidance trust, asset protection trusts, multi-generational tax-saving trusts, tax-saving charitable trusts, private family foundations, and many other fact-specific strategies.


Keeping your Estate Plan Current...

Once completed, your estate plan should be reviewed and kept current with life events such as birth, death, marriage or divorce of anyone included in your plan. In addition, you should review your plan if there is a significant increase or decrease in your finances or if the laws related to your estate plan change.