by Caren R. Nielsen, Esq.
Do you enjoy talking about death and dying? Of course not, none of us do, which is why most people put off planning their estate and are unprepared to handle unexpected health care crises. You can minimize the stress and anxiety and save thousands of dollars by planning in advance.
The only way to insure that your individual desires must be followed is to put them in writing. The most important legal documents that you need to insure that your health and financial care desires will be carried out are:
*Advance Health Care Directives
*Durable Power of Attorney for Finances
ADVANCE HEALTH CARE DIRECTIVE
The #1 document that every person should have is an Advanced Health Care Directive. In other states this document is referred to as a “Living Will” or a “Power of Attorney for Health Care”.
The Advanced Health Care Directive lets you choose in advance who will make your health care decisions if you become unable to make your own decisions. It is a legal document that contains your specific health care wishes, your desires regarding life-support, and allows you to nominate another person to speak to your doctors on your behalf if you cannot communicate your own medical desires. This document also contains “personal care” choices, such as a desire to remain living at home and a desire to spend money on home health care. It also allows you to express your desires concerning organ donation, funeral arrangements and the dis position of your body when you die.
Although all of the above-listed personal desires can be communicated orally to your family or informally in a letter, only the Advance Health Care Directive is legally binding. By having an Advance Health Care Directive, both you and your family will have peace of mind and your wishes are more assured of being carried out.
EXAMPLE: Mr. Smith wanted to be cremated and her ashes scattered at sea. Mrs. Smith did not believe in cremation and also, never liked the ocean. Mr. Smith had an Advance Health Care Directive containing his desire for cremation and scattered ashes. When he died before Mrs. Smith, their children wanted to carry out their father’s wishes, but Mrs. Smith did not want to. The matter went to court and the Judge ordered that Mr. Smith’s wishes be followed because he had clearly expressed his desires in his Advance Health Care Directive.
EXAMPLE: Jennifer is not married and has no children. Her closest friend is her neighbor, Robert. She has two nieces in Idaho, but she does not know them at all. Last year when Jennifer suffered a stroke, the hospital insisted on contacting the nieces to determine Jennifer’s medical treatment. The hospital refused to listen to Jennifer’s friend Robert because there was no legal document (the “Advance Health Care Directive”) to appoint Robert as Jennifer’s agent.
You can buy pre-printed Advance Health Care Directive forms; download examples of forms from the Internet or have attorney-prepared forms. The disadvantage of a pre-printed form is that it may not contain all of your personal desires and may not necessarily reflect the most current law. If you meet with an experienced estate-planning attorney, he/she will ask you questions and determine which type of form expresses your own unique personal desires and concerns.
EXAMPLE: I had a client last year that was very ill and was repeatedly in and out of the hospital. She had two sons and did not have an Advance Health Care Directive. Her two sons constantly fought over the proper treatment for her and caused many problems with the doctors and hospital staff. You could tell that both sons loved her, but did not get along. The two sons fought over whether their mom should live at home or in a facility, who her doctors should be, and even whether pills or liquid medicines were better for her! One day, the hospital called me and said that one son was insisting on resuscitation, although the doctor was sure that it would break her ribs because she was so frail. The other son did not want the resuscitation. The doctor did not know who to listen to and it became necessary to get the Court system involved simply to direct her care. Imagine how different her treatment would have been if she had an Advance Health Care Directive! The doctor would have known who to listen to and what type of care she desired. It also would have eliminated the guilt felt by her two sons and possibly improved their relationship.
DURABLE POWER OF ATTORNEY FOR FINANCES
A Power of Attorney is a legal document in which you (the “principal”) appoint another person (an “agent”) to handle your finances. It lets you choose someone you know and trust to make your finan cial decisions if you are ever unable to do so.
The word “durable” means that the document continues to be effective even if you lose capacity. A Power of Attorney that takes effect im mediately when you sign it is referred to as an “immediate” Power of Attorney. A Power of Attorney that only takes effect if you become inca pacitated is called a “springing” Power of Attorney.
If you have selected one individual to be your health care agent and a different individual to be your financial agent, then conflicts can arise between money and type of care. What if your health care agent desires for you to remain at home, but you do not have long-term care insurance and your financial agent refuses to sell assets to keep you at home or refuses to take out a loan? Problems can easily arise which require a court to resolve them.
LAST WILL AND TESTAMENT
A Will takes effect only after death. It directs who gets your property after you die and who will be the executor. If an estate is worth more than a certain amount ($100,000 in California), then the Will must be “proven up” by the court; this is referred to as the “probate process” and is a court proceeding which takes from six months to several years to complete.
In California, there are only three types of valid Wills: statutory, holographic and formal.
A holographic Will requires no witnesses but the signature and all ”material provisions” must be in your own handwriting.
A formal Will requires two (2) witnesses to its execution. In California, a Will should neverbe notarized. To avoid potential conflicts, the witnesses should not be people who are mentioned in the Will.
A statutory Will is a specific form Will approved by the legislature in which you fill in the blanks. Although this form Will is simple, it is not recommended because you cannot modify the form whatsoever. Most people desire some modifications and thereby risk invalidating the entire Will!
One thing that many people do not know is that certain assets are not covered by a Will,even if you want them to be. These assets include life insurance, joint tenancy, IRA’s, pensions and trust assets.
A Trust is a written agreement between an owner of assets and a person who will manage the assets held in the Trust (trustee). You can be both parties.
It combines the function of a Will and a Power of Attorney for Finances. Like a Will, aTrust directs who inherits your property after your death. However, unlike a Will, a Trustalso provides for the management of your assets during your life if you should become incapacitated.
You do not lose control of your assets by creating a trust! In fact, you have more control because your wishes are written down for others to follow in case of an emergency. In theTrust document, you retain the rights to revoke, to change the beneficiaries, to amend, and to terminate the Trust. You can change the terms at your discretion at any time you choose.
In a Trust, you can also provide for your loved ones in whatever manner you feel to be best – such as periodic payments to children at specific ages, on-going gifts or life time support.
A Trust will generally cost more than a Will to prepare and involves more paperwork. However, the advantages of a trust include avoiding probate, avoiding conservatorship, eliminating or reducing estate taxes and insuring privacy.
GET PROFESSIONAL ADVICE
Estate and personal planning can be confusing and frightening. Do not rely on the advice of well-meaning friends and relatives to properly plan for your care and estate. Remember, one of the greatest advantages to having an Advance Health Care Directive, Powers of Attorney and a Will or Trust is that the documents create a legally recognized network of people, of your choice, who can carry out your plans for you.
The more thought and planning you give to this topic, the greater peace of mind you and your loved ones will have.