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Every adult -- especially seniors -- should have at least three essential legal documents to protect them and their family: a will, an advance directive (such as a living will), and a health-care proxy (also called a “durable power of attorney for health care”).
Will Power
A will is one of the most important legal document the average American
will ever sign, more 70% of Americans do not have one. If you die
without having a will, the state, not you, will decide who is entitled
to your property. With a will you can decide how and when your heirs will
receive your assets.
When you create a will, you also need to appoint an executor, someone you trust to administer your estate. The executor’s duties include locating all the estate’s assets, pursing claims, and collecting what is due the estate. You should pick an executor who is knowledgeable about finances, loyal, and interested in the welfare of your family. You should also name successor executors, in case the original executor becomes unable to serve. Finally, you must tell your executor or executors what and where your assets are, as well as the location of your will.
Here are some important steps to creating a valid will:
• You may want to consult a lawyer if you have a complicated estate that will be subject to a lot of taxes. If you’re planning to set up trusts, or if you want advice on planning the distribution of your estate, legal counsel is necessary. Otherwise, you can find sample “boilerplate” wills in books, software and websites that you can customize a bit to meet your own circumstances.
• Sign the original copy of the will in front of a notary.
• Never keep your original will in a bank safe deposit box. In many states your safe deposit is locked immediately after you die. File your original will safely with an attorney or in a fireproof box at home.
• Review your will every two years. You want to keep your will as current as possible.
Advance Directives
What happens if you are no longer able to speak for yourself? Advance
directives can protect you in the event you are incapacitated.
The best-known advance directive is the living will, which only 15% to 20% of Americans have, according to the American Medical Association. But the number is growing rapidly.
In most states, living wills can only be used if a patient is terminal
and death is imminent.
A living will works spells out exactly what you want done in the event
you have an irreversible, incurable condition, or become permanently unconscious.
It specifies which treatments you want used and which you don’t.
To be effective, a living will must be as explicit as possible. The goal is to leave no room for misinterpretation. Treatment options such as respirators or ventilators, nutrition and hydration and cardiopulmonary resuscitation are the types of issues usually discussed in this kind of document.
Your doctor, along with your hospital, should have a copy of your living will to keep with your medical records. Also, give dated copies to members of your family and your attorney. You can also register your living will online at www.livingwillregistry.com
Health Care Proxies
If you are incapacitated, but not facing imminent death, a health care
proxy, also called a durable power of attorney for health care identifies
a friend or relative you have appointed to take responsibility for your
treatment decisions. Unlike a living will, which is limited to terminal
illnesses, the health care proxy can be used for a broad spectrum of nonterminal
medical situations. This power can be invoked for any incapacity you may
experience, however temporary. The health care proxy you appoint must follow
your wishes, and is your best defense against unsympathetic medical personnel.
Different states have different laws regarding health care proxies. It’s very important, therefore, to find out how the statutes in your state define the durable power of attorney for health care.
Durable Power of Attorney
Many decisions beside health care will need to be made if you become
incapacitated. You should designate the authority to make non-medical decisions
through a legal document known as a durable power of attorney. The downside
to having a durable power of attorney is that it takes effect immediately.
Behind your back, while you are still healthy, an unscrupulous person could
exercise his or her durable power of attorney over your financial affairs.
Many people find the wide latitude that someone with a durable power of attorney has unsettling. However, an alternative called the springing power of attorney allows you to act on your own behalf in all matters, until an event specified in the document takes place, such as the loss of mental or physical competence.
A formal determination of your disability must be made before the springing power of attorney can be operative. In the best scenario, this could mean a short delay. In the worst, there might be uncertainty, disagreement, or squabbling among doctors or your family over the extent of your disability.
Only an attorney should prepare durable power of attorney documents, to prevent banks and other third parties from arbitrarily declining to recognize them. Some banks and other institutions don’t want to risk future claims by disgruntled account owners. These claims usually involve dishonest attorneys using power of attorney documents that were deficient in some respect and should not have been honored. Your attorney who drew up the papers in question can usually deal with a contesting institution.
Processing and putting into place the legal documents discussed here can bring you peace of mind that your affairs will be handled the way you want.
Further resources:
• Attorney Steven J.J. Weisman’s website www.ilawamerica.com
• The National Academy of Elder Law Attorneys
www.naela.org
• Nolo, a leading self-help legal publisher
www.nolo.com
• The
Elder Law Handbook, by atty. Peter J. Strauss and Atty. Nancy M. Lederman
• The Only
Retirement Guide You’ll Ever Need, by Kathryn and Ross Petras.