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Powers Of Attorney and Living Will

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About the author:

Jim grew up in Philadelphia. After graduating from Penn State with a B.A. in history, Jim went to Villanova University School of Law where he graduated with a J.D. After graduation, Jim first went to work for the City of Philadelphia and then became employed by the Commodity Futures Trading Commission. In private practice, Jim's areas of concentration have been securities, commodity futures, real estate, tax, wills and trusts.

In the last issue, I wrote about two important Estate Planning Documents ... a Will and a Living Trust. In this issue, I will discuss some other valuable and needed documents each of you should have. They are a Living Will, a Health Care Power of Attorney (or Advance Medical Directive) and a Property Power of Attorney.

First, it should be noted that these documents, while often prepared as part of your "estate plan" are actually documents which become operative during your life and cease to be operative upon your death. So, while they can be (and often are) executed at times different from when you execute your Will or Living Trust, my experience has generally been that when a client comes in for a "Will Package", it often means some testamentary document (Will or Trust) and also both Powers of Attorney and a Living Will.

In summary, these are documents which direct others to do things for you when you cannot do them for yourself. Again, none of them survive your death except for one issue which I will discuss in the description of the Medical Power of Attorney. Thus, upon your death, your appointed agent to make Health Care decisions for you can no longer make health care decisions for you (perhaps that is obvious anyway) and your Power of Attorney for Property also ends upon your death and the executor of your Will or Trust takes over.

So, let's chat about each of them.

1. Living Will

Broadly stated, a Living Will is a document you use to state your medical wishes in the event you are either incapacitated or otherwise unable to give informed consent as to the types of medical treatment you wish.

Some examples which may be included in a Living Will are: if you are terminal, do you want IV food and/or hydration given to you; do you want pain medication; do you want to be on a ventilator? These and many other questions may be asked of you by your attorney. State laws vary in their answer to many of these questions so it is best to consult an attorney in the state where you live to determine how your state deals with these issues. For example, in Illinois, where I reside, there is a split among the courts as to whether and under what circumstances it is possible to withhold hydration from a person, even when they request it. Another example is: what are your wishes as to when you want to be resuscitated? Do your wishes change (as to what medical care you receive) if you have an incurable disease such as cancer and have been deemed terminal? Or, assume you have been in a car accident and the medical staff advises that you have no brain function, do you want to be on a ventilator?

Factors to consider are your family's financial situation since medical expenses can become quite costly and may not be totally covered by insurance. Other factors could be the emotional stress on your family by keeping you on a ventilator. Another consideration are your own wishes of what you want in the event your medical staff states "there is little hope" or words to that effect.

Realistically, a living will cannot cover each and every possible contingency. Therefore, it is probably best to use some concise, broad language which would cover several situations. As with other documents of this kind, it is best to think about them, have them prepared and then executed when you are of sound mind and understand it.
An often asked question is what is the difference between a Living Will and a Last Will and Testament. As stated above, a living will is the document which expresses your health care wishes when you are unable to do it - a Last Will and Testament (which I discussed in the last issue) states how you want your assets divided and who is going to do all of it.

Because the laws of each state vary as to how these issues are decided, it is best to speak with an attorney in your state who can help you prepare the document and help you state your wishes.

2. Medical Power of Attorney

Much like a Living Will, a Medical Power of Attorney is a document which describes the type of health care you wish and appoints someone to make those decisions. Oftentimes, the form allows for an alternate if your first choice is not available or is unable to serve. Many states have codified this document so you or your attorney can complete it by stating what type of care you want, any additional duties you wish to give your agent, any limitations, the name and address of the agent as well as the name and address of the contingent agent. Some states also ask that you initial one of 2 boxes and state if you either (a) want your agent to have total authority to make decisions beginning on the date of execution of the document regardless of your current physical health, or (b) state that you do not want your agent to make decisions for you unless you are unable to make them for yourself which will be determined by your physician.

Other states do not have a codified state form bur rather rely on a General Power of Attorney. Some of those states say they are durable, basically meaning the document becomes active when you are unable to make your own decisions.

Again, I strongly recommend this document be prepared by your attorney so your wishes are stated as completely as possible. I always recommend that copies of the Medical Power of Attorney be provided to your physician, to be included in your chart as well as to any hospital where you have been admitted. I also strongly recommend that if you make any changes to this document that you notify your physician immediately and provide him or her with a copy of the updated document.

3. Property Power of Attorney

Like a Medical Power of Attorney, the purpose of this Power of Attorney is to give the person you designate (your agent) broad powers to handle your property. The extent of that authority and the financial matters it covers, can either be limited by you or expanded by you. So, for example, you can allow your agent the power to sign checks for you, buy or sell real or personal property or many of the other categories listed in the document. Unless you limit the duration, the Power will be in force for the duration of your lifetime, including after you are disabled.

This is another document to discuss carefully with your attorney and make sure he or she prepares it in accordance with your wishes.
If your state does not have a specific form then, like the Medical Power of Attorney, a Durable Power of Attorney is normally acceptable.

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