Published in the Itawamba Community College Insight, October 2009
During these uncertain times when Congress and the President are wrestling with healthcare legislation which could directly impact illness and life decisions, are you prepared for your own uncertain times?
There are two (2) main issues that need to be addressed regarding “during life” estate planning – healthcare decisions and financial management. Everything is fine as long as you are able to make your own healthcare and financial decisions. However, problems and uncertainty arise if you become incapacitated and do not have the proper documents in place such that people you trust can step-in to make healthcare decisions for you and manage your finances. In the typical estate plan, “during life” healthcare decisions and financial decisions that need to be made while you are incapacitated are addressed by an Advance Health-Care Directive and a General Durable Power of Attorney.
Advance Health-Care Directive:
An Advance Health-Care Directive is a legal document which allows you to name a person (i.e. an Attorney-in-Fact) to make healthcare decisions for you if you become unable to make such decisions on your own because of a permanent or temporary illness or injury. If you are not capable of making medical decisions, then your Attorney-In-Fact is empowered to make decisions such as who your doctors will be, where you will be treated, and what treatment you will receive. If there are certain types of treatments, services and procedures you want to receive or do not want to receive, you may specify your wishes in your Advance Health-Care Directive.
A section of an Advance Health-Care Directive contains a “living will” which deals with your wishes regarding being kept alive by artificial means in the event you suffer from a terminal condition from which your physicians believe you will not recover. An Advance Health-Care Directive allows you (not your Attorney-in-Fact) to make the decision now about whether life support should be continued or discontinued, so your loved ones will not be faced with making this decision for you without clear guidance from you should this unfortunate situation occur.
General Durable Power of Attorney:
A General Durable Power of Attorney is a legal document which allows you to designate who will make financial decisions for you if you become incapacitated. If you become incapacitated without having executed a General Durable Power of Attorney, then a petition will have to filed with the Chancery Court in the county in which you live to appoint a guardian for you. This would involve a public accounting to the Court of all of your assets, the testimony by two (2) physicians that you were incapable of handling your affairs, and the appointment of a guardian by the Chancellor. The person appointed as guardian would have to post a bond with the Court and would have to make an annual reporting to the Court of your assets, your income, and any expenses paid on your behalf by the guardian. This process can be avoided by having a General Durable Power of Attorney. Both the General Durable Power of Attorney and the Advance Health-Care Directive can be revoked at any time by you delivering a written notice to your Attorney-In-Fact.
Estate planning is a very important part of life which is easily and often postponed. Fortunately, the law allows a person to privately and methodically make “during life” and “at death” decisions regarding their healthcare, financial management, and the distribution of their assets at-death. If a person chooses to not take the time to properly plan for these issues, then the State has statutorily prescribed rules which will govern these issues. Unfortunately, these rules imposed by the State often do not correspond with a person’s desires. I encourage everyone to address their estate plan with their attorney.