Do not forget two key components of any estate plan:  a Durable Power of Attorney for Healthcare and an Advanced Healthcare Directive

If you read my monthly articles regularly, you know the cornerstone of any estate plan is a Last Will and Testament, (hereinafter, “Will”). But a Will has many limitations and should never stand alone as a plan for your future. The following are a few of the limitations for Wills: A Will does not completely control assets that are owned with others. It does not control assets with beneficiary designations like an IRA, retirement benefits, or life insurance policies or annuity contracts. A Will generally cannot be used to avoid probate; it instead gives guidance on how to move through probate. A Will cannot be used to avoid paying taxes. Instead, an administered probate estate must comply with federal and local tax laws. A Will is also not a good place to list plans for a funeral. Since a Will must be used during the probate administration process, it is subject to that process and its long timelines; therefore, the reading of a Will may occur sometime after the decedent’s death, and after a funeral occurs. Conditional gifts are normally difficult to observe in a Will. Of course, this depends on the condition. Instructions requiring someone to behave illegally will not be observed. Pets normally cannot receive property pursuant to a Will because pets cannot own property; however, other measures may be taken to include a pet, including the creation of a testamentary trust established for the pet.

Because of these many limitations, a Will is merely one cog in the wheel of a good estate plan. At a minimum, our law firm suggests the inclusion of advanced directives or living probate documents such as a Durable Power of Attorney for Finances, a Durable Power of Attorney for Healthcare, and an Advanced Healthcare Directive (a/k/a Advanced Medical Directive or Living Will). This article focuses on the two latter forms: more specifically, the Durable Power of Attorney for Healthcare, and the Healthcare Directive. In general, a power of attorney is a legal document whereby the principal appoints another person (referred to as either an “agent” or “attorney-in-fact”) to do and perform certain things for the principal during the principal’s lifetime. Living Wills and other advance directives are written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Advance directives provide guidance to doctors and caregivers if you become terminally ill, seriously injured, or otherwise incapacitated.

Advance directives are not just for older adults. Unexpected end-of-life situations happen at any age, so it is important for all adults to prepare these documents. By planning ahead, you can get the medical care you want, avoid unnecessary issues, and relieve caregivers and family members of decision-making burdens during moments of crisis or grief.

While a minority of attorneys would suggest otherwise, a Durable Power of Attorney for Healthcare decisions should only become effective (spring to effect) when the principal becomes unable to communicate his or her wishes to healthcare providers. The word “durable” in the title of a Durable Power of Attorney for Healthcare is also especially important. It is essential and should be found in any drafted document if the principal desires thorough estate planning coverage. While a Durable Power of Attorney for Healthcare can remain effective until the principal dies, the authority granted to an agent in a power of attorney without durable designation normally ends when a principal becomes incapacitated. As a result, if the principal becomes incapacitated and does not have a Durable Power of Attorney for Healthcare, his or her loved ones may be caused to attend court and seek a judgment declaring the principal incapacitated so they can have the proper authority to act on the principal’s behalf as guardian or conservator. 

The Durable Power of Attorney for Healthcare differs from a Healthcare Directive, or Living Will, in that it details the treatment the principal wants if he or she is nearing the end of life and can no longer communicate. Living wills and Wills sound similar, but they are entirely different documents that serve separate purposes. A Living Will details a principal’s wishes with regards to medical care, or the lack thereof, when he or she is in a coma or persistent vegetative state or is incapacitated in some other way that prevents the communicating of wishes. While a Will details a person’s wishes for their property and assets after death, a Living Will details that person’s wishes to medical providers while they are still alive — hence the name.

A Living Will is a written, legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions, such as pain management or organ donation. These documents address a number of possible end-of-life care decisions such as the following:  (1) Cardiopulmonary resuscitation (CPR) restarts the heart when it has stopped beating. Determine if and when you would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart; and (2) Mechanical ventilation takes over your breathing if you are unable to breathe on your own. Consider if, when and for how long you would want to be placed on a mechanical ventilator; and (3) Tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach. Decide if, when and for how long you would want to be fed in this manner; and (4) Dialysis removes waste from your blood and manages fluid levels if your kidneys no longer function. Determine if, when and for how long you would want to receive this treatment; and (5) Antibiotics or antiviral medications can be used to treat many infections. If you were near the end of life, would you want infections to be treated aggressively or would you rather let infections run their course?; (6) Comfort care (palliative care)includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes. This may include being allowed to die at home, getting pain medications, being fed ice chips to soothe mouth dryness, and avoiding invasive tests or treatments; and (7) Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your health care agent avoid any confusion, you may want to state in your living will that you understand the need for this temporary intervention.

In conclusion, incorporating numerous key components to an estate plan is an important decision for older all adults. Two of those components are a Durable Power of Attorney for Healthcare, and an Advanced Healthcare Directive. Their creation provides you with the peace of mind that you have taken care of these important matters for your family and loved ones, and that you have put in place your plan to protect your property and affairs for your loved ones, and that you have made it easier for them and have let them know your actual wishes and desires.  You can find and use do-it-yourself durable power of attorney forms online; however, it is wise to meet with an attorney about your estate planning needs so they can recommend the documents that will work best for your particular situation.

The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor. Todd Miller is a monthly legal contributor and is currently the owner of the Law Office of Todd Miller, LLC, located at 1305 Southwest Blvd., Suite A, Jefferson City, Missouri 65109. The Law Office of Todd Miller, LLC focuses on estate planning, probate administration, probate and trust litigation, elder law, and bankruptcy. Contact Todd Miller via Telephone: (573) 634-2838; Website: www.toddmillerlaw.com; and Email: staff@toddmillerlaw.com.