By , Nicole Pope, Elder & Disability Law Clinic Student, Fall 2020
A common misconception for many clients interested in estate planning is that they only require a will. However, a comprehensive estate plan considers not only how the client wants to distribute their personal property and other assets at death, but also how to protect their wishes and interests while they are still alive but perhaps unable to manage their own finances or consent to medical care.
The most obvious use for a will is to choose to whom you want to pass your savings, family heirlooms, and other assets. You might also include provisions in your will telling your family where and how you want to be buried, or who will look after any minor children that survive you. However, a will only takes effect when the client passes away. The will speaks for the client after they are no longer there to speak for themselves. But, what happens when the same client cannot make their wishes known while they are still alive – for example due to diminished capacity resulting from dementia? A will simply would not help in that case.
Preparing the following documents alongside a will in advance of a crisis allows the client to maintain their autonomy by giving written instructions to trusted family members, friends, and medical providers. These documents also circumvent the costly and time intensive guardianship process should the client lose capacity to make decisions for themselves and limit the potential for confusion and fighting among family members as the client ages.
1. Durable Power of Attorney
A durable power of attorney allows a client to appoint an agent, or agents, to make decisions regarding their property during their lifetime. You can leave specific instructions for what that agent can and cannot do in the document. For example, you might allow your agent to manage your checking account to pay your monthly bills, help maintain your home and other real property you own, file for reimbursement of medical funds on your behalf, and file for tax returns on your behalf. While the agent does have control over your property, they are required by law to act in your best interest, and you may revoke that power at any point. Having a durable power of attorney is especially helpful when an elderly client wants to make it easier for their adult children to help with everyday financial transactions. Additionally, including a gifting power in your durable power of attorney can help your agent effectively and efficiently redistribute your assets in order to meet Medicaid eligibility requirements should you need nursing home care in the future.
2. Health Care Proxy
A health care proxy, also known as an advanced health care directive, functions similarly to a power of attorney. However, in this document the client appoints agents to make future medical decisions for them in the event that they can no longer make those decisions on their own. Although people of all ages should have a health care proxy, the benefits for elderly clients are even greater. In the event of a stroke, fall, or other crisis situation, the health care proxy facilitates communication between hospital administrators and the people the client trusts the most to consent to treatments in line with the client’s values and beliefs.
3. Living Will
Lastly, every client should consider the living will. This important document outlines your wishes regarding end-of-life medical interventions and care, such as whether you wish to be kept alive artificially, whether you want medical professionals to perform CPR should your heart stop, whether you want to receive palliative care and pain management medications, and whether you want to donate your organs after death. A living will protects your dignity at the end of life and can provide comfort to family members who would otherwise be asked to make these decisions for you.
A will, power of attorney, health care proxy, and living will provide a solid estate plan for most clients. The William & Mary Elder & Disability Law Clinic can help tailor these documents to your needs and provide guidance on any questions you may have about the planning process. Please do not hesitate to reach out to us today!