As a new year approaches, I am reminded by a friend in Massachusetts that this is a very good time to consider some basic legal documents all adults should have, A Will or Living Trust, a General Durable Power of Attorney and at a bare minimum, I really hope that you will consider having an Advance Medical Directive and Healthcare Power of Attorney drawn up. And if you already have them, please consider revisting them at least once every five years. When’s the last time you looked at yours?
Advanced Medical Directive with Healthcare Power of Attorney is what we call them in Virginia. In other places they might be called Living Wills and Healthcare Proxy.
Why do you need one? Two word explanation: Terry. Schiavo. You can read the linked story to refresh your memory if you like. Basically, Terry Schiavo lay in a “persistent vegetative state” from 1998 to 2005 while her husband and her parents repeatedly sued one another on the national stage – all the way to the Supreme Court. Schiavo’s parents demanded life support continue, her husband insisted that he knew that his wife would not like to continue in the state she was in and demanded that it be removed. Lacking legal documentation to tell anyone what she herself would have wanted, the courts ultimately sided with her husband and she was finally taken off life support and allowed to die. Except insofar as she lived on in the media circus and continuing court battles. Terry Schiavo was just 36 years old.
An Advanced Medical Directive and Health Care Power of Attorney tells your healthcare team and your loved ones:
a) what kind of care you would like in the event you’re nearing death;
b) what kind of care you would like in the event you’ve lost your ability to interact meaningfully and it is unlikely you are to recover;
c) in the event you cannot make healthcare decisions for yourself, who you would like to make them for you.
I tell my clients that an Advanced Medical Directive is the legal document that tells people what to do with your “person” – admit or release you from a hospital or other facilities, hire & fire doctors, decide what treatments are going to be used and the like
The other pieces are a General Durable Power of Attorney and a Last Will and Testatment. These are the legal documentation that tells people what’s to be done with your “stuff” — your property.
Its my view that it is as important to have a General Durable Power of Attorney to deal with your “stuff” in the event you are not able to do it yourself as it is to have a Medical Directive. A Durable General Power of Attorney (DGPOA) gives someone you pick the power to transact your personal business when you cannot. Here’s one example:
Lets say you have a stroke. You’re admitted to the hospital and after a few days there, you must go to a Rehab facility where you will be for an extended period. Your dominant hand has been impacted and your ability to speak is severely limited. You ask your friend to have the cable TV and some other services at your house cut off to save some money. Too bad. Without a power of attorney, your friend cannot even do something as simple as cut off your cable bill. You may also need someone to pay write checks for you and conduct other personal business.
The last piece is dealing with your “stuff” once you’re done with it….. after you die. Of course I mean your Will. Many of you don’t think it matters much; after all, you’ll be gone so who cares? Well its true that you probably won’t care by then (but who knows? maybe there’s an IRS on the other side? That would be Hell I suppose) Anyway, people often don’t realize that by failing to make a Last Will and Testament they can leave their families in a heck of a mess. There may be no clear path to pay for your burial and other liabilities (like taxes and other creditors). People that you can’t stand and would never have left anything to may lay claim to your money and property.
There are many ways to pass property after you die, and it bears talking to a lawyer to consider the best options to maximize your property and minimize taxes and annoyance to your family. Generally when I write Wills for people, we take a pretty holistic view of their entire estate – investments, real property, personal property etc. and consider all the options of avoiding both taxes and probate complications. This does not have to be a complicated undertaking, but it should be done thoroughly and carefully.
Its a New Year. Put this on your list of resolutions — if not for yourself, for your family. They’ll thank you for it – I promise you.
