When I have initial meetings with clients creating an estate plan, they are often focused on their Last Will and Testament as the core of their estate plan. They aren't wrong, that is the main document in most plans, but the other documents that we also prepare can be just as important as the Last Will and Testament. The Will is the main document, and what that document does is say what happens to your things after you're gone. If you have children, it has guardianship provisions, and if they're under 18, it also will usually have a trustee provision.
But that isn't the only document you should be looking at in your estate plan. While you're still living, we use documents called powers of attorney and there are two main types. There are financial and there are healthcare powers of attorney. Both of these documents are effective when something happens to you and you become incapacitated. Let's say you're in a car accident and you're in a coma, and you can't speak for yourself, that financial power of attorney will help somebody manage your financial affairs and the healthcare power of attorney will also nominate somebody to take care of your big medical decisions.
What Is A Healthcare Power Of Attorney?
A Healthcare Power of Attorney is created to spell out your instructions and preferences for your medical care in case you become incapacitated. In it, you designate a person (or persons) to be your agent and speak to your wishes if you are incapacitated. The person you designate is given the authority to make decisions for you, including end of life decisions.
Why Do I Need One?
Simply, life is unpredictable. There is no guarantee of what tomorrow holds. It is a hard topic to think about, but one that you need to think about. While it may be scary to think of, not having the document can be scarier.
If you are in an accident and can’t speak, who will speak for you? You may think that the doctor will automatically speak to the right person, but will they? What if you and your spouse never talked about whether you want to be on life support? You could inadvertently create tension between your family members who disagree on what to do.
From a practical standpoint, without a plan, the hospital may use costly medical treatments that you would not have wanted. Especially if you have religious or philosophical views, they may never be told to the doctors.
Do I Need A Lawyer?
Many states provide basic forms for you to fill in. The big concern with any form, of course, is that a form can’t tell you if you’ve filled it out correctly. Even more concerning is paying for a form and then not filling it out correctly.
The best way to approach a Healthcare Power of Attorney is as part of an estate plan. There are a variety of documents at work and an attorney can be sure that they each complement each other. Without an attorney, you run the risk of having contradictions in your documents that create more problems than they attempt to solve.
Next Steps
Already have a Healthcare Power of Attorney but it’s been a few years and you may want to make some changes? Never even thought of it before but now think it’s a good idea? Let's set up a Legal Strategy Session to review your documents and the next steps for you.
