Estate Planning: (Three-Part Series) “Top 3 Legal Documents Every Adult Should Have” – PART II (Health Care Directive)

1. Power of Attorney
2. Health Care Directive
3. Last Will and Testament

In Minnesota, these are what I refer to as “foundational estate planning documents” – and, everyone should have them.  Why?  If you want a stress-free retirement and aging process, plan ahead!  If you have a family, take care of them if something happens to you and help them care for you with documents that allow them to make decisions for you. These three important documents cover the basic issues of choosing who will speak for you if you become incapacitated and how you would like your assets/belongings distributed upon your death.

NAELA (National Academy of Elder Law Attorneys) just published a press release saying the same thing – it inspired me to write this three-part series.  NAELA talked about 4 documents because some states deal with Health Care Directives differently than we do here in Minnesota, but it’s the same plea – plan ahead and make sure you have these foundational documents for living your life free from the fear that comes from wondering “what would happen if…..”

Document No. 2    Health Care Directive  (HCD)

This is a document similar in many ways to the Power of Attorney (POA) but it deals specifically with your health care decisions.  A HCD allows you to do two things:  1) name at least one agent (someone who will make health care decisions for you if you become incapacitated) and, 2) allows you to write specific instructions about what your wishes are for your health care if you cannot speak for yourself. If you’ve ever been in a position of having to make a health care decision for someone else without knowing what they really wanted for themselves, you know how important a document like this is.

The main difference is that a HCD only “springs into effect” upon the incapacity of the person who made the HCD.  It also “springs out of effect” if the person regains their capacity. (Remember the durable POA is effective upon its execution – it needn’t wait for incapacity to be effective.)

We as individuals have a right to make our own health care decisions. This document is basically an extension of that right. By naming someone who will speak for you if you are unable (either permanently or temporarily), and/or including instructions, your own wishes can be followed.

I tell my clients this is an invaluable document for two main reasons:  1) it allows you to exercise your own choice of agent, and 2) it’s an important opportunity to think through end-of-life scenarios, which we will all face at some point (!) and examine the basic principles and beliefs behind how you value your life and how you live it.

Like the POA, if you don’t choose, the court, or in many cases, the hospital staff will decide who should speak for you. Again, a capable and willing family member may likely be called upon. But, which one? The one you want?  And, what if you don’t have any family members at the ready?  If the court decides for you, it’s called a guardianship. A guardian has authority to make decisions for your person (where you live, what doctor you visit, what health care you receive), as opposed to a conservator, who holds financial authority.

A HCD does not require an attorney in order to be properly executed. There are all sorts of options available online and from a number of different sources, including most large health care providers. I wouldn’t discourage anyone from getting one and executing it, copying it and distributing it to appropriate parties. Whatever will get it done!  But, an attorney is probably going to make it easier for you – offering this document automatically, and knowing more than most about expressing your wishes in well-executed, clear and precise language that can avoid misunderstandings or confusion among medical professionals and family members.

All three of these foundational documents must be drafted and executed (signed by you and notarized and/or witnessed) while you have the capacity to make your own decisions. That means, if you wait until there is a problem, you may lose your opportunity to make them.  As I’ve explained in other entries, although there are court appointed alternatives, they can be impersonal, impractical, costly and unpleasant, to say the least.

Don’t delay.  A phone call to make an appointment with an Elder Law or Estate Planning Attorney can get the ball rolling. You may be surprised how reasonable the cost and how straight-forward the process.

Stay tuned for PART III (Last Will and Testament) published next. PART I (Power of Attorney may be read in the archives of Legallymade.com, official blog site for Decoro Law, PLLC.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.