Do you have a will? If yes, is it up to date with people you chose to serve as executor and guardian? Do you want to add or remove any beneficiaries?
Financial Power of Attorney
Do you have a durable financial power of attorney that names trusted people to take care of your financial matters if you are unable to? How will your bills get paid if you are in the hospital?
A living will is a healthcare document that details your end-of-life decisions. Do you want to be kept alive by artificial means? Are there some procedures you want to refuse (typically for religious reasons)? For your living will to take effect, two doctors must agree that you have a terminal condition or are in a permanently unconscious state, and death is being prolonged with no reasonable chance for recovery. The people you list in this document are merely for contact purposes–they have no decision-making authority.
Healthcare Power of Attorney
A healthcare power of attorney allows you to name people who will have authority to make healthcare decisions for you if you are unable to do so. If you have a living will, your healthcare power of attorney cannot override your wishes in your living will.
Why have life insurance? Obvious reasons include providing money to those dependent on your income if you die. Life insurance can also be used to pay off your debts so that you don’t burden your family with your financial liabilities, such as medical debt if you were hospitalized or had a lengthy illness. You can purchase a policy designed to pay off the mortgage on the house if you want to be sure your children and family can keep the family home. If you own a business, life insurance can be purchased to enable your business partners to buy out your shares and keep the business running smoothly.
There are more components to an estate plan, but the list above explains your first considerations when starting to plan. This list is specific to Ohio. Documents described above might be different in your state.
If you have any estate planning questions, email me at firstname.lastname@example.org.
In Ohio, we have “advance directives” that include a living will and a healthcare power of attorney. A living will (not related to a Last Will & Testament which distributes your assets after you die) is an end-of-life document that details what medical treatment you want or don’t want if you are dying. Death must be imminent. Any treatment is only prolonging death. A healthcare power of attorney gives a person you choose the power to make healthcare decisions for you if you can’t make them yourself. This person cannot contradict your living will.
Most living wills state that we don’t want to be kept alive by artificial means such as a ventilator if death is imminent and there is no reasonable hope for recovery. The scenario that comes to mind is one where someone’s organs are shutting down, breathing is labored, death is near, and the last thing we want is to be hooked up to a ventilator and have a machine breathe for us. We state these wishes in our living will, and hopefully our agent in our durable power of attorney for healthcare ensures that our wishes are followed by medical personnel.
Some people are reconsidering their living wills in light of the coronavirus. The need for a ventilator to help us breathe seems common for many of those being treated for coronavirus/covid-19, and there is concern that if you have a living will stating “no ventilator,” then you won’t get one if you are being treated for coronavirus. This not true.
A living will applies only when death is imminent and a machine, such as a ventilator, will only prolong your death. With coronavirus, a ventilator is used as treatment for recovery, and ventilators remain in use as long as there is a reasonable hope for recovery. It is used as treatment to counter the effects of what the virus is doing to your lungs. That is not a situation where a machine is simply prolonging death. When you sign your living will, you are not stating that you do not want a breathing machine or ventilator under any circumstance. A living will is not a document that doctors consult to determine a course of treatment. It is a document that is used in determining end of life decisions.
If you have any questions regarding healthcare documents, and how coronavirus/covid-19 might affect when the documents are used, please email me at email@example.com.
I have heard all of these misconceptions mentioned, including just today.
- The attorney who prepared my will must handle my probate. No. Many estate planning attorneys prepare wills with an eye toward being called upon to handle a probate if the client dies, but there is absolutely no requirement that the drafting attorney who prepared your will must handle your probate. This includes if the attorney who prepared your will holds your original will for safekeeping.
- My will dispenses with all of my property. Some documents override a will. If you have a will, and you leave all real (house, land) and personal property to John, yet you have a deed that is held somehow with Jane, Jane will get the house because she is on the deed, not John, even though your will gives it to John. Generally, titled and deeded assets go to the person listed on the title, or beneficiary designation, or deed. “I leave everything I own to Bob.” At my death, I have a life insurance policy that lists Joanne on the beneficiary designation. Who gets my life insurance? Joanne.
- I had a trust prepared so I don’t have to worry about probate. It is so frustrating to see clients come to me with trusts they had prepared (and paid a lot to have prepared), only to learn that the trusts are unfunded. What the client has, then, is a stack of papers that likely will not do what was intended. Funding your trust involves titling or deeding assets to your trust. You can accomplish this by naming your trust on beneficiary designations so that asset goes into your trust at your death, or having a “transfer on death affidavit” prepared that puts your home into your trust at your death. For example, you would have a deed prepared granting your home from Jenny Jones to “The Jenny Jones Revocable Living Trust.” However you accomplish it, a discussion of “funding your trust” should be a critical part of planning from your attorney. If you have a trust prepared and then never prepare a new deed putting your home into your trust, and you die, your home will likely require a probate to be opened, defeating one of the important reasons for having a trust prepared (avoiding probate, privacy).
- A will (last will and testament) is different than a “living will.” A last will and testament is what we think of as a “will”–we state who is to inherit what, we name a guardian for our kids if they’re young, we name an executor. On the other very different hand, a “living will” is a healthcare document stating whether we want artificial life support if (1) we are terminally ill and death is imminent, or (2) if we are in a permanently unconscious state (i.e., brain dead). This is popularly known as “pulling the plug.”
Contact me at firstname.lastname@example.org to discuss estate planning.
No one wants to think about being gravely injured in an accident, or having a terminal illness. If you have definitive thoughts about being kept alive–or not–on artificial life support, then you should plan for what you want done or not done should you become in a “terminal condition” or “permanently unconscious state” using a living will and a healthcare power of attorney.
Karen Ann Quinlan and Terri Schiavo were both women who fell into comas after differing medical events. Both were put on artificial life support and received nutrition (feeding tube) and hydration. Despite efforts from family members to remove artificial life support, both women lived for 10 years in a persistent vegetative state. As with many people, neither woman put any end-of-life wishes in writing.
The stories of Quinlan and Schiavo scare people who fear living for years in a coma, kept alive by machines. To make it known that you would not want to be kept alive artificially, you need to prepare a living will, which memorializes your end-of-life decisions in writing. A healthcare power of attorney accompanies a living will, and provides for you to name an agent for making healthcare decisions for you. This “agent” can make medical decisions if you are unable to make them yourself, but cannot override your end-of-life wishes in your living will.
A living will document makes your end-of-life healthcare wishes known. A healthcare power of attorney names an agent (you choose) to enforce your living will and make healthcare decisions for you if you are unable to do so. These documents should be a part of your estate plan, and should be freely to distributed to the people you name, doctors, and hospitals.