Advance Directives – An Important Part of Estate Planning
Most attorneys will automatically draw up three other important documents for you when writing your will. But if you write your own will, you may forget these documents, called advance directives. Don’t forget them! Your will only come into play after you die. You need these advance documents while alive. Once you die, these documents are no longer valid, and your will goes into effect. Regardless of who writes these advance directives, be sure they are readily available to your family and/or trusted people to use when needed.
Advance directives are your formal instructions used if you cannot provide instructions, usually because of disability or illness. These are important documents for people of any age, so please ensure you have prepared them, and tell your children and parents to be sure they prepared their own advance directives.
1. Durable Power of Attorney (Also called a “Advance Healthcare Directive or “Durable Financial Power of Attorney” or “Durable General Power of Attorney”)
An AHCD combines the Medical Power of Attorney and Living Will (Nos. 2 and 3 described below) to let you give instructions and also designate someone else to make decisions for you if needed. This document gives another person the power to act on your behalf when you are incapacitated. You can make this document as broad or limited as you want, but it covers at least your financial matters. You select a trusted person (typically a family member) to execute your affairs when you are unable to do so. For example, if you are in the hospital, you might need someone to pay your bills, sell property and sign legal papers on your behalf. Without such a document, your bank or securities firm or the title company will not accept any instructions from your family on your behalf. In fact, the family would need to go to court and receive a ruling to act in your behalf. This can be a very expensive, slow and unnecessary process.
2. Health Care Power of Attorney(Also called a “Medical Power of Attorney” or “Durable Power of Attorney for Health Care Decisions”)
This document gives another person the power to make medical decisions when you are incapacitated. For example, someone may need to decide which procedure would be best in discussions with your doctor or whether a certain operation should be performed. It is not the same as a Living Will (below).
3. Health Care Directive (Living Will)
Unlike the Durable Power of Attorney and the Health Care Power of Attorney (above two), this document does not name a person to speak on your behalf. This document specifies your specific instructions regarding life-sustaining measures. For example, if you are diagnosed with a terminal condition, do you want all life-sustaining measures withheld if you are in the hospital, or just certain measures? Do you still want to be given pain relief?
4. HIPAA Authorization
This document allows your medical records or information to be shared with a third party, such as your spouse.
The Confusion Factor
The terms “Living Will,” “Medical Power of Attorney” and “AHCD” are frequently used interchangeably. However, there are legal distinctions between them.
- Advance directives are your formal instructions that are used if you are unable to provide instructions yourself, usually because of disability or illness.
- These are important documents for people of any age.
- Make sure you have prepared them and they can be located readily by you and those who might be acting on your behalf.
- Tell your children and parents to be sure they have their own advance directives.