Nobody wants to think about worst case scenarios. We all hope that should we die or become incapacitated, our family and friends would make decisions for us that are in line with our wishes. However, the only way to truly ensure that our wishes are carried out (and the only way to remove as much of the stress of such decision-making from family and friends as possible), is to cement those decisions into a legal document in advance.
Some of the most important documents to have drawn up in advance are a living will or “advance directive,” a health care power of attorney and a will. All of these documents can be prepared on your own, but many people choose to hire an attorney to prepare the documents so they have the best chance of standing up in court.
A living will is a legal document that goes into effect if you have become unable to make decisions due to illness or injury. The living will should make clear your wishes regarding life-prolonging medical interventions. We’ve all seen cases in the news such as that of Terri Schiavo where unfortunately a family is divided with regard to what types of medical treatments should be provided, and whether a person should be allowed to pass away without further medical support. If you have a living will you will potentially save your family the pain of having to guess what your wishes would be and then convince other family members of the same. Requirements for a living will vary by state, so again, the safest option to to hire an estate planning attorney to prepare the document for you.
The second important document to have in your possession is the health care power of attorney. This document designates a friend or family member to make medical decisions for you in the event that you are unable to do so. The difference between the power of attorney and the living will is that the living will applies only to the withdrawal of life-prolonging treatments while the medical power of attorney authorizes a specific person to make all medical decisions on your behalf. It is also important to note that a regular durable power of attorney generally only covers financial decisions; a medical power of attorney covers medical decisions.
Lastly and perhaps most importantly is a will. A will is a written document that designates who will inherit your money and/or property after your death, how and when that money will be distributed and who will care for any minor children. It is obvious why such a document is hugely important, especially where minor children are involved. Once a person passes away the will generally must go through a probate process, discussed in detail in a previous Court Reference Blog entry.
Although end-of-life decisions can be difficult to face, it is important to cement certain decisions into a legal document in advance (and re-visit them periodically as your wishes change) to guarantee that your desires will be carried out. As discussed, the safest option for ensuring that such documents are drawn up correctly is to hire an attorney who specializes in estate planning. A great source for finding an attorney to meet your needs is the Court Reference website. Simply choose your state and then select “legal aid, lawyer referral” from the drop-down menu to find local attorneys. Also available for each state are various self-help resources and links to local probate courts.