Documents That Everyone Should Have
Documents That Everyone Should Have
by Edwin G. Fee, Jr., Esq.
Everyone (caregivers included) should have three basic planning documents to provide instructions in the event of incapacity or death: a health care directive for making medical decisions, a durable power of attorney for making financial decisions, and a will to dispose of assets upon death.
A health care directive may include a living will for decisions concerning artificial life support, an appointment of health care agent, and instructions regarding organ donation.
A living will would apply if, for example, you are suffering from a terminal condition and death is imminent, or if you are in a persistent vegetative state. In these circumstances a living will allows you to provide instructions concerning the administration or withdrawal of life-sustaining procedures in general, and nutrition, hydration, and medication in particular.
An appointment of health care agent allows you to designate someone else to make medical decisions for you if you are unable to do so yourself. The health care agent may be given authority to employ health care personnel, to gain access to medical and other personal information, and to consent (or refuse to consent) to medical care.
An organ donor form permits you to designate which organs you wish to donate and to restrict what the organs may be used for, such as transplantation, research, or medical education.
A durable power of attorney permits you to designate someone else (called an attorney-in-fact) to make financial decisions in the event that you cannot make your own decisions. A power of attorney may grant authority that is as broad or as restricted as you wish. Generally, it is better to authorize broad powers so that your attorney-in-fact may deal with any situation that could arise.
Although a power of attorney is especially useful when someone becomes incapacitated, a power of attorney also may be used for convenience purposes. For example, suppose a frail elderly person is still mentally competent to make decisions, but simply doesn’t want to be bothered with paying bills and signing documents. A power of attorney would permit someone else to take care of these tasks instead.
A will allows you to dispose of assets upon death. Wills range from quite simple to incredibly sophisticated, usually depending upon the family situation, the nature of the assets, and the total amount involved. If you don’t have a will, then assets may pass according to state law. Sometimes the distributions under state law may be counterintuitive. For example, in some states, if you are married but have no children, a portion of your assets may pass to your parents rather than to your spouse.
Many states have statutory forms of health care directives and powers of attorney. Often, you may obtain these statutory forms from the website of the state Attorney General or the state bar association. Under the law of many states, there are few requirements for creating a valid will. If you write your wishes on a piece of paper, sign it, and get two witnesses to sign it, that may be enough to create a valid will. Although it is possible to create your own health care directive, power of attorney, and will, you may wish to consult an attorney to make sure that these documents do everything that you need them to do and are properly executed.
Edwin G. Fee, Jr., Esq.
Whiteford, Taylor & Preston L.L.P.
Towson Commons, Suite 300
One West Pennsylvania Avenue
Towson, MD, 21204