Why do we execute a Medical Power of Attorney and an Advance Care Directive? Executing a Medical Durable Power of Attorney gives your agent the authority to make all but one medical decision for you, when you are incapable of making such decisions for yourself. That one remaining decision is the end-of-life decision (stop feeding me; take me off life support). That decision is, and should be, made only by you, using an Advance Care Directive, more commonly known as a Living Will. But when does the Living Will take effect? The answer is when two doctors state in writing that you are comatose with an irreversible medical condition and you have directed that life sustaining procedures be removed. At that point the Medical Power of Attorney no longer has authority and the Living Will takes over. Most Medical Powers of Attorney state that in the event of conflict with the Living Will, the Living Will prevails. You have the last word.
In the past David has joked, “When I die, I want my body cremated. Thereafter, the “cremains” (let me guess-a mortician made that one up) are to be mixed into 50 gallons of Cuervo Gold. Then you are to hold a party so all of my friends can drink me.” Can you imagine if your spouse/partner said something like that to you? Oh, yes, ashes in rivers, lakes, on mountains and fields, all pretty normal requests and easy to honor. What about the requests that are crazy to some but important to you? From the look on Jill’s face each time David has given these directions, it’s likely she may not intend to respect his final wishes. So, how do you insure that your final requests, like David’s, will be honored?
First, do what he did. Tell the person most likely to be in charge what you want and see if it is agreeable. Additionally, tell anyone likely to complain and discuss it right up front. For example, if your spouse is OK with cremation but you are not sure about your other family members, talk to them. Explain why it’s important to you. Don’t let them be surprised after your death when it’s too late for the conversation. If everyone agrees, then it is probably settled. If someone important (e.g. your parent or child) disagrees, tell him or her you truly hope and expect them to honor your wishes whether they like it or not. If you think the person is still going to cause trouble, or if that person is your spouse, you have two choices. 1. Forget about it or at least modify the wish – the post-mortem family strife might be just too divisive; and hey, on some level, it’s not about you. Or, ask for the party, request lots of tequila be consumed in your name but don’t make your family ask people to drink your ashes (or fill in the blank for your “unique” request); 2. Find a Personal Representative (Executor) who will enforce your wishes, whatever your family thinks, and then write those wishes clearly and expressly in your Will, or in a stand-alone “Declaration of Disposition of Last Remains” and write a “To whom it may concern” letter and give the letter to your executor so that he/she will have it immediately available upon your demise. 3. Finally, if your wishes are fairly normal, help your family and lay them out (no pun intended) while you’re alive and well. Some individuals will even visit a funeral home and pre-pay for the whole package. Now, back to David. Most of his friends and family are women. Wouldn’t 50 gallons of Malbec be more appropriate? So often we hear individuals say that they don’t have to have an estate plan because they really don’t own very much and their family will know what to do. Let me state this right up front: YOU DON’T HAVE AN ESTATE PLAN FOR YOURSELF, BUT FOR THE PEOPLE YOU LEAVE BEHIND.
Estate documents are so much more than just passing money and material items along. Living Wills, Powers of Attorney and Personal Property Memorandums are profoundly important for the emotional well-being of your loved ones. Living Wills come into play when you are brain dead or permanently unconscious with no hope of recovery. The purpose of a Living Will is to prevent those individuals you love, particularly your partner, spouse or children, from making the decision whether to terminate your earthly existence. Think of all the potential for conflict and guilt that making such a decision can entail. We’ve actually had a client tell us that “I killed Mom” because he had to make the decision to take her off life support. That is exactly the situation we are trying avoid. A Living Will uses no middle person to make the ultimate life/death decision – you make it in advance and remove all the responsibility of such an emotional situation from those you love. Some people say that a Medical Power of Attorney already does the same thing as a Living Will, so a separate Living Will is unnecessary. They are mistaken. Powers of Attorney, by definition, give authority to another person to make decisions for you. Living Wills are designed to remove such decision making. Powers of Attorney serve a different but also very important purpose in estate planning. They are necessary while you are still alive but unable to make decisions for yourself or conduct your own business affairs. A Power of Attorney will lose all authority upon an individual’s death, but it does allow your friend or loved one to make decisions for you when you do need help. Today you cannot be admitted to most rehab or assisted living/nursing facilities without producing a Power of Attorney. And be aware, there are two types of Powers of Attorney; financial and medical. They are two completely different documents and serve two completely different purposes. Finally, an estate plan is necessary to stop fighting or a sense of injustice from occurring with the distribution of your material possessions. Estate attorneys can cut up bank accounts and financial holdings all day long. What we can’t do is decide who gets Mom or Dad’s wedding ring, the family portrait that’s hung over the fireplace for years, or the kitchen china that was a part of every family dinner. You must do that dividing while alive and well, and state who gets what within a Personal Property Memorandum that is a part of a Will. We cannot tell you the hundreds (literally) of stories we’ve heard about siblings never speaking to each other again because of who got what material item when a parent died. And, worse, often the item had NO economic value. It’s almost always a matter of sentimental value. So you see, it really doesn’t matter what the size of your “estate” is. Estate planning is an act of kindness you do for your family and friends. You make the life/death decisions, you appoint the proper people to act on your behalf and you divide your possessions so no one’s left making those hard choices for you. It’s just something you do for those you love. One of the first challenges after the death of an individual is figuring out who’s in charge for all the subsequent arrangements necessitated by the death. Well, it actually depends on whether a person dies intestate or testate……
An heir, which is short for heir at law, is anyone entitled to receive assets of a person who dies without a Will. When someone dies without a Will, the legal term is that they died INTESTATE. Generally, the order of heirs of a person who has died intestate is: 1. Surviving Spouse 2. Children, INCLUDING children from decedent’s prior marriage 3. Parents 4. Siblings This order is the same order used for selecting the individual to be named Personal Representative (decision maker) and who has the authority to spend the deceased’s money for a funeral. A beneficiary or devisee is anyone or any entity called out in a Will. When someone dies with a Will the legal term is that they died TESTATE, and have executed a document which is formally known as a Last Will and Testament. Wills specifically call out the name of the person the deceased wants to be the Personal Representative and has authority to spend the deceased’s money for a funeral. Whoever ends up this decision maker, can avoid a lot of headache by contacting the other major individual heirs or beneficiaries before spending the estate’s money on funeral arrangements. If someone dies and only has $15,000 in assets some heirs or beneficiaries may not be happy about a $10,000 casket and service. Try to get a quick idea of assets by looking at bank statements for all accounts owned by the deceased. When working with a funeral home or crematorium please know they understand that it may take some time to free up assets of the estate to pay them. They may make you sign a contract outlining the services, costs and an agreement to pay, but are generally patient when funds need to come from an opened estate. If they demand payment up front, go somewhere else. Many funeral homes and crematoriums list their prices for various service options on their websites. Don’t be shy to visit the website before speaking with someone in person and see what kind of help you want them to provide and get a general idea of what it’s going to cost. |
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November 2021
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