Estate planning is a very difficult topic for many individuals to consider because it requires the discussion tough topics such as their own disability or death. It's not unusual for someone to consider estate planning only when faced with a serious injury or if they are faced with a terminal illness. Yet, with the global COVID-19 pandemic lingering, many Americans - of all ages - are taking the steps to get their affairs in order by including advance directives as part of a comprehensive estate plan.
The coronavirus COVID-19 has changed the way our world is behaving. More than ever, Americans are focused on preparing ahead for the unforeseen. The urgency to prepare ahead is most evident in grocery stores but the population is also focused on their financial health as well as getting their affairs in order. While, it's difficult to think about or own potential incapacity or death, it's also the responsible thing to do when faced with a global pandemic. Given that 80% of survey respondents have said they would want to talk to their doctors regarding medical treatment if they were near the end of their life, now is the time to put your wishes into writing. The time to consider advance directives is while you are healthy and of sound mind.
What are advance directives? An advance directive is a legal document that includes instructions regarding your end-of-life care. These documents are better known as the living will and the medical power of attorney (also called a “designation of health care surrogate”). Many estate planning attorneys will call this type of planning “incapacity planning” and will include other essential documents, such as the durable power of attorney and the HIPAA authorization.
The living will, often called the “pull the plug” document, is an advance directive that includes instructions regarding what medical treatments you do wish to receive vs. those that you do not wish to receive. The living will is useful if you qualify for one of the following:
- You are terminally ill
- You are in the end stage of a terminal condition
- You are in a persistent vegetative state and life prolonging methods are being used to keep you alive
Deciding in advance whether you'd like to be kept alive artificially instead of leaving this for your family to decide eases the burden on loved ones. Imagine if you had never taken the time to execute a living will. Your family may be torn on what to do in a situation like this but the elected individual makes a judgment call. This decision may cause friction between family members that disagreed and prove fatal to familial relationships. The best way to avoid this is to create the documents now with clear provisions regarding your wishes.
A power of attorney for health care is often called a designation of health care surrogate. In this document you are selecting one or more individuals to make important medical decisions on your behalf. Specifically, the health care surrogate is authorized to review your medical records and make important medical decisions for you (such as removing or sustaining life support, as directed under your living will).
The HIPAA authorization is used along with the designation of health care surrogate because it allows the medical staff to communicate freely with the designation individual. It's best to take time to first discuss your wishes regarding end of life care with this individual (as well as your family) so that they may fully understand the decisions you may be asking them to make. Being honest and open also alleviates the possibility for future tension among family members who may not agree with what is being stated in the document (as mentioned earlier).
The financial power of attorney you want to consider is called a durable power of attorney. The word “durable” is significant because it allows for the document to remain valid during a time of complete incapacity. It's important to note that this document remains valid at all times, even if you have full mental and physical capacity (but perhaps you just a little under the weather). This powerful document will authorize the named individual (your “agent”) to carry out financial matters on your behalf. The idea is that your agent will assist with paying bills and other financial affairs if you should need them. However, the document can be flexible allowing your agent to have full authority to the extent of selling your home, changing beneficiary designations on your behalf and even creating a trust for you. If you'd like for the document to be more restricted, then you must communicate your goals with an experienced estate planning attorney.
Why do I need advance directives? Estate planning is about achieving peace of mind. With advance directives, you want to know that your wishes are not only clear but that they will be followed. Having the proper documents created and executed properly means you have now accomplished the following:
- Preserve family harmony
If you were to become ill and unable to communicate then you no longer have control over how your affairs will be handled. By creating your advance directives and other important documents previously mentioned, you remain in control even when you are incapacitated. You will know who will be handling your finances as well as who will make your medical decisions. No court intervention will be necessary and you'll never have to worry about someone you don't trust taking control over your affairs.
When your wishes are clear then no one can point a finger at each other. Even in the event that you do not anticipate any animosity among your family members, a living will can help make this period easier for them as you will have made the decisions regarding your care in advance. Not one family member will ever worry about whether or not they had made the right decisions for you.
Considering the current pandemic we are facing, it's easy to feel like we have completely lost control. By completing your incapacity planning you can at least know that you have control over your end-of-life care. It's understandably difficult to consider the topics of disability or death but it's important to take the time in advance to designate a trusted individual to manage your finances or to make medical decisions for you. By doing so it will have ensured that not only will your instructions and intentions be followed but you would have also lightened the load on your loved ones in the event of an emergency.