Documents Everyone Should Have

When I chose to practice estate planning one of my considerations was that I did not want to practice in an area of law where matters required urgent action. Too many years of responding to emergencies made me look for a more mellow pace. I specifically wanted to avoid late afternoon calls on a Friday that necessitated an all out effort to prepare for an unexpected court appearance on a Monday. In my estimation it seemed that estate planning would be my best bet. Little did I know that people with no planning, along with their friends and loved ones, can be thrown into emergency mode when that person is suddenly incapacitated by illness or injury. However, the affected person is usually blissfully unaware of the problems their lack of planning has created, since they are usually unconscious.

The biggest issues in these instances revolve around healthcare of the individual, childcare, paying rents, mortgages, bills, and other financial matters. What is lacking is legal authority for someone else to act on behalf of the afflicted person. During the Covid crisis I fielded numerous calls from friends and relatives of people who were in the hospital unconscious, who needed someone to make medical, financial, or childcare decisions for that person but the caller lacked written authorization from the incapacitated individual. When I advised them of the rather involved and costly legal process to gain authorization, the callers often became quite agitated and sometimes hostile with me. I would then explain that I was just the messenger and not the one who created the situation, or the laws enacted to deal with it. This is a situation where a minimal amount of planning and preparation can prevent an inordinate amount of stress, effort, and monetary outlay. Two documents that will help mitigate stress and costs in these situations are a durable power of attorney (DPOA) and an Advance Healthcare Directive (AHD). Additionally, individuals with minor children should execute a formal document nominating a person(s) who they would want to act as guardians of those children.

Durable Power of Attorney

The simplest explanation of the DPOA is that it gives someone else, that you have named, the authority to act in virtually any manner you indicate in that document. The DPOA is signed by you and either witnessed or notarized according to state law. Your authorization is generally predicated on whether you are actually incapacitated, which most often requires the person acting under a DPOA to provide documentation from one or two physicians stating that you are medically incapacitated and unable to currently act on your own behalf. Although incapacity may also be caused by your incarceration, or other unavailability. Without such a document, often other people are prevented from accessing your funds, paying your bills, filing taxes, dealing with your employer, etc. The DPOA is valid only while a person is alive and ceases to be effective upon death.

ADVANCE HEALTH CARE DIRECTIVE

An Advance Health Care Directive consist of written instructions for your medical care and lists the person(s) who you authorize to direct your care while you are incapacitated. Depending on how thoroughly you write out your instructions, it may be very detailed or simply authorize your medical advocate to make their best informed decision as to the type of care you receive. Without such a document there may be conflicting ideas of what care you should, or should not receive while incapacitated in the hospital. This is particularly important if you feel strongly that there are certain medical procedures or therapies you would, or would not want to receive, such as tube feeding, or artificial means to prolong your life.

Often times there are differing opinions as to the type, manner, and length of care someone should receive. Well meaning family members can have polar opposite ideas of what kind of care their loved one should receive. Sometimes those differing opinions can expand to out-and-out legal fights, which consume huge amounts time, energy, and money. Additionally, such infighting can lead to irreparable harm to interpersonal relationships among those who disagree. An Advance Directive removes any guess work regarding the kind of care you would, or would not, want. To read about a case gone terribly wrong in this regard, search the case of Terri Schiavo on the internet to see an extreme example of what can happen when written instructions and authorization are not properly executed prior to incapacity. Parents of adult children, those 18 years and older, often do not realize the importance of this document until after their grown child is incapacitated by injury or illness. This can be particularly important when parents have divergent views of the healthcare that grown child should receive.

Guardian(s) for Minor Children

Nominating a person(s) to be the guardian of your minor children is extremely important, particularly for the wellbeing of the children. While a nomination of guardian is not a 100% guarantee that that person(s) will eventually in fact end up the guardian, it creates a clear indication of who the parent or parents prefer as their child's guardian. Without such a written nomination, there is the potential for a free-for-all over who will fill that roll. Again, while not a guarantee, a written nomination may help to avoid infighting, time, trouble, and money, in the form of legal fees.

Now, by no means am I advocating that anyone should have only these documents, but these are the ones that should be the very minimum for anyone who is an adult. Obviously, a full set of estate planning documents are preferable, but I also realize that not everyone has the time, assets, or money, for a full plan. The documents listed above will, however, save your family a lot of angst, anguish, and hassle, should something happen to you. Even if the person you know has virtually no assets to their name, they could need the assistance of someone to step in if they were sidelined due to illness or injury and the documents discussed above will make that process much easier for all involved.

DISCLAIMER:  As always, this information is general in nature and is not intended as specific legal advice, or to create and attorney client relationship. For complete information you should consult a qualified attorney in your area.