Most of us are aware that we are mortal. Most of us know that we could someday become unable to attend to our affairs for any number of reasons. We think and talk freely about buying a home, taking an expensive vacation or about when and where to retire, but most of us are reluctant to think about the possibility of our death or incapacity.
Refusing to discuss the possibility will not prevent it from happening, but we often behave as if it would. For anyone who owns assets or has a family, to die without a will is, simply put, foolish. Someday, someone is going to need to sort out your estate, no matter how big or small it may be. For a fairly modest investment, and an hour or two of your time, you can ensure that your family will receive what you want, when you want, and how you want.
Everyone should have a will. There are issues that arise — and decisions that need to be made — that can only be addressed by you in your will.
Who will locate your assets, settle your obligations and distribute your estate to the people you want to have it? With a will, you select that person. Without a will, the selection is made by a judge of probate who may know nothing about you and your family.
Who will take care of your minor children if you and your spouse die in a common disaster? With a will, you decide. Without a will, that decision is also made by the judge.
A will can direct who gets what from the assets of your estate. Failing that, the Legislature has made that decision for you, and it may not be the same decision you would have made. Generally, wills are not expensive, and there are statutory forms available for the cost of printing them at all probate offices. A professionally drafted will usually includes optional provisions to make estate administration easier, but the statutory form is still better than nothing.
A durable financial power of attorney authorizes an agent to make financial decisions for you, and to act on those decisions, if you are unable to. You select the agent or agents. The power can be revoked at any time as long as you are competent. It may be convenient, for example, to sign a document on a day when you are out of town.
Its real function is to avoid the necessity of a long, expensive, humiliating, guardianship proceeding in the event of your incapacity. You may not want to sit in a courtroom while your spouse, or child, explains in detail why you are not capable of handling your own affairs, but that proceeding may be the alternative to a durable financial power of attorney. With no power of attorney, the judge will select an agent for you based on priorities set by the legislature.
Another kind of power of attorney authorizes an agent to make medical decisions for you if you can’t make your own. Your agent can authorize or refuse treatment, be privy to your medical information, hire and discharge medical personnel, and generally do whatever you could do for yourself if you were competent to make decisions and able to communicate those decisions. As long as you are able to make and communicate decisions about your own health care, the health care power of attorney has no effect. If you are comatose, and medical decisions need to be made, it can be invaluable. No one wants the heart-wrenching, seven-year legal battle that was waged between Terri Schiavo’s husband and her parents while she lay in a coma, kept alive by life support. That scenario can be avoided by authorizing someone else to make decisions if you are no longer able to.
There are some health care decisions you can make while you are conscious and competent that will guide your doctors and your health care agent in making their decisions. An “advance health-care directive” tells your doctors and your health care agent your wishes for your end of life medical treatment. If you have an incurable and irreversible condition that will result in your death in a relatively short time, do you want your life prolonged by life support? Do you want to be given artificial nutrition and hydration? You can decide now, in case you are unable to later.
The lesson to be learned is quite simple: someday you may become incapacitated, and some day you will die, so while you’re alive and well, plan for it.
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