All too often, clients come to my office with nothing more than a simple Will in place and a mistaken belief that this constitutes a sufficient estate plan. While a Will can designate who will serve as the personal representative (also known as the executor) of your estate, how your assets will ultimately be distributed, and your preference for guardians of any minor children, it is essential to understand that a Will is nothing more than a death document. In other words, your Will has no effect until your death.
The harsh reality is that, regardless of age, we are all one car accident away from mental incapacity. While financial issues are certainly important and should be addressed as part of your overall estate plan, many people simply assume that their loved ones would automatically be authorized to make health care decisions for them in the event of mental incapacity. However, this is not an accurate assumption. Without proper planning, your loved ones – even your spouse – would be required to initiate a guardianship proceeding (also known as living probate) in order to obtain the legal authority necessary to make health decisions for you. For a more detailed explanation of Living Probate, see Michelle’s blog from April 28, 2011.
If you wish to avoid the possibility of living probate for health care matters in the event you became mentally incapacitated, you must execute a Power of Attorney for Health Care as part of your estate plan. Through this essential document, YOU can designate who is authorized to make health care decisions for you. While it is possible to designate co-agents for financial decisions, you should only designate one health care agent at a time. Imagine the difficulties doctors might encounter when faced with siblings arguing over decisions such as whether or not life support should be removed! Most people name a primary health care agent, and then at least one backup in case the primary agent is unable to make decisions for some reason.
In addition to a Power of Attorney for Health Care, your estate plan should include a Living Will. Not to be confused with a Last Will or a Living Trust, a Living Will (also known as a Declaration to Physicians) tells your doctor whether or not you would prefer to be kept alive artificially under certain circumstances. Finally, the health care portion of your estate plan should include a HIPAA form authorizing your agent to access your medical records when needed. Without an effective HIPAA form in place, even your spouse may be hard-pressed to obtain your medical records. How can one serve as a health care agent if he or she can’t see your medical records? This could potentially create quite a dilemma.
Terri Schiavo’s case provides a glaring illustration of how important health care documents can be. Terri’s unexpected incapacity at the age of 26, followed by prolonged life support, resulted a legal battle between Terri’s parents and her husband that lasted seven years. If Terri had executed health care documents prior to her accident, her entire battle could have been avoided.