Advance Directives – Do Not Delay

As we made plans to include this article in our blog series, we had the overwhelming feeling that “everybody knows this”.  And, as we spoke to the adult children of a few clients we discovered to our dismay that a surprising number of people have not given thought to Advance Directives.  Those who do were usually asked the question upon entering the hospital at one time or another.  That was likely the first time they had even thought about documents like a Living Will or a Health Care Power of Attorney.

If you have not given this thought, Advance Directives may be the most valuable (and inexpensive) ways to protect your wishes and reduce decision-making and family disfunction at a critical time.  Having them in place greatly reduces the distinction between “this is what Mom would have wanted” and “this is what Mom has stated she wants”.

Some people believe that when assets are owned jointly with a spouse, they do not need a Power of Attorney or if they become incapacitated, their spouse will have the authority to make medical decisions on their behalf.  Far too many people have discovered that this is not true at a time when emotions are running very high, and time is running short.  Do not wait until it is too late to put Powers of Attorney and a Living Will in place.  Learning that you do not have legal authority to make medical decisions for a loved one when he or she is incapacitated makes a medical crisis even worse for all concerned.  These documents must already be in place. Doing so while everyone is of sound mind and there is no crisis afoot is the best time to execute such legal documents.

Power of Attorney

The POA allows a person (a “principal” in this situation) to appoint another person (the “agent” in this case) to make decisions for that person.  Depending on the powers described in the document, the Agent has the authority to act on behalf of the principal in many different ways – including, importantly, medical. The laws in California will have their own peculiarities regarding who can be an Agent or if there are any limits to what power can be given to an Agent.  It is best to speak to an estate planning attorney for specific advice on these matters and to create a POA to fit your own situation.

Some Powers of Attorney are very broad.  Often called a “General Power of Attorney” can convey rights to another individual to do everything you would do for yourself.  This might include accessing and managing bank accounts, applying for Social Security or even filing tax returns.  Alternatively, a financial POA can assign a specific responsibility for a limited amount of time.  By way of example, if you were not available to sign a tax return, you could assign that duty to someone else for that specific task virtue of a Power of Attorney.

Living Will

In the case of a Living Will sometimes called a Directive to Physicians provides information to your Agent and medical team in writing about your care wishes. It allows a person to appoint an Agent to make medical decisions on his or her behalf if that person is incapacitated.

Usually, the Living Will becomes effective when treating physicians determine the person no longer has capacity to make or communicate decisions relating to his or her health. When a Living Will is in place it avoids having to go to court to have a guardian appointed, particularly important when time is of the essence. If there are no advance directives in place, physicians will resort to the opinions of a hierarchy of relatives to make decisions for you.  Should that order of relatives include an estranged adult child, for example, if they are next-of-kin, he or she could be the one making decisions for you – regardless of your own wishes.

And this advice is not just for the older generation.  Any of your children who have reached the age of majority (usually age 18) they should have a Power of Attorney and a Living Will themselves.  Just being their parent does not necessarily mean you have the legal rights to make decisions on their behalf.  Clear documents will eliminate any questions.

While there are standard forms available online you will be well-served to retain an estate planning attorney to prepare them for you and your loved ones.

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