When I give presentations, I always ask the audience what they think is the most important estate planning document to have, and almost everyone replies with a “will.”
It’s a trick question. More important than making sure that family, friends, and charities inherit your possessions is making sure that you are taken care of while living.
There are two critical documents that all adults should have, no matter your age or health status: the durable power of attorney and the health care proxy.
The durable power of attorney allows a person whom you name to handle your personal and financial affairs. Likewise, a health care proxy permits someone you’ve named to make medical decisions for you if you can’t make or communicate your own.
This week’s column will focus on the health care proxy, next time we’ll talk about the durable power of attorney.
Why would you want a health care proxy? Imagine that you’ve had surgery and are still in an anesthetic fog, or you’ve been in a car accident and are in shock, or dementia has rendered you incompetent – you’ve named someone you trust to make medical decisions for you. And don’t worry, as long as you are able to make and communicate your own decisions, your health care agent has no authority.
What happens if you don’t have a health care proxy? Things can get ugly. If you are in a hospital, assisted living, or nursing home and you have not authorized someone to speak on your behalf, in all likelihood your family will be forced to go to court to initiate a “guardianship proceeding.” This is a court proceeding that involves money (thousands of dollars), time (months), lawyers, and a lot of family emotion that could have all been avoided by simply signing a health care proxy. And by the way, the cost of pursuing the guardianship comes out of your bank account.
Whom should you name to act on your behalf? Ask yourself, who will challenge your medical team and ask for further explanations? Who will go online and research your illness? Who will honor your wishes for the type of care you would like to receive? Is this person your spouse, child, sibling, best friend? Choose someone who will do the best job – and someone of whom you are willing to ask to take on this responsibility.
Surprisingly, your spouse does not have automatic legal authority over your affairs. If you want your spouse to be able to manage your health care when you can’t, you need to actually name him or her in a health care proxy.
While we are on the subject of health care, let’s discuss living wills. A living will is not an enforceable document in Massachusetts, and I don’t think a person can thoroughly spell out their end-of-life wishes in a one-page form. Instead, I have clients fill out a twelve-page workbook called Your Way, which very thoughtfully walks the reader through choices of end-of-life care in different scenarios. While it is a difficult exercise, by completing this workbook, my clients give their families the gift of knowing exactly what to do in a crisis situation.
For a small investment (usually less than $100, depending on your attorney’s policies), you can give trusted individuals the power to help you take of yourself, and you can avoid having potentially thousands of dollars spent on a court proceeding. By spending about one hour of your time, you can walk away from your attorney’s office knowing you have taken care of yourself and made things much easier for your family.