You may not need a trust, an elaborate estate plan or even a will. But unless you want a stranger making important decisions for you and your family, there are some things you do need.
Most Americans don’t have wills, but that’s not the crisis many in the estate-planning industry would have you believe. With a few exceptions – which we’ll talk about below – most people’s quality of life won’t be much improved by a will.
That’s because your state already has a basic plan for distributing your stuff when you die. You’re dead, so what do you care? If who got your CD player and your comic book collection wasn’t important enough for you to bother with a will while you were alive, it certainly won’t matter to you after you’re gone.
What your state doesn’t have, though, is an efficient way to take care of you if you’re still breathing but unable to make your own decisions because of incapacitating illness or injury.
So if you get in a car accident and die, your estate will be distributed more or less efficiently. Get in a car accident and end up in a coma, and you could be in a world of hurt.
Your critical decisions made by a stranger?
Who would be authorized to pay your bills or wrangle with insurance companies about your care? Who would decide whether to sue that driver who hit you – or shut off the respirator that’s keeping you going?
The state will eventually find someone to fill these roles, after a potentially costly and time-consuming court hearing. But it might not be the person you would want. So at a time when you’re most vulnerable, life-and-death decisions could be made for you by a stranger – or an estranged, distant or greedy relative.
That’s why you need the following documents:
A durable power of attorney for health care/Patient Designation, which lets you name who will make day-to-day medical decisions, as well as lets you decide now what type of care you do and don’t want to receive if you’re terminally ill and incapacitated.
A durable power of attorney for finances, which designates who will handle money decisions.
Fortunately, you can get these documents – plus a basic will – drawn up by an attorney for about $500, give or take a little in most areas. Our point is, just do it. If you need more convincing, consider the cases of Robert Wendland and Michael Martin. Robert Wendland who was severely injured in a 1993 car crash at age 42, sparking a gut-wrenching court battle between his wife and his mother that ended up before the California Supreme Court. Michael Martin was severely injured in an auto-train accident resulting in a long court battle also between his wife and mother which ended up before the Michigan Supreme Court.
Fight over removing the feeding tubes
Wendland was in a coma for 16 months before recovering what doctors called “minimal consciousness.” He could catch a ball and play with infant toys, but couldn’t speak, eat, walk, recognize his family or comprehend a Saturday morning cartoon. Doctors said his condition was not terminal but would never improve. Wendland’s wife Rose, whom a court had appointed as his conservator, decided he wouldn’t have wanted to live as he was and asked doctors to remove his feeding and hydration tubes. Wendland’s mother, Florence, went to court to keep him alive. Eventually, California’s top court sided with the mother – a few weeks after Robert died of pneumonia after surviving on life support for eight years.
Martin suffered a closed head injury which left him unable to walk or talk, and rendered him dependent on a colostomy and a feeding tube for nutrition. Even though there was testimony (oral) that he didn’t want to be kept alive under life sustaining circumstances, the lower court and higher courts differed as to whether there was enough evidence to permit the withdrawal of life support without a writing. The Supreme Court stated “after painstaking review of the facts of this case, we reverse the Court of Appeals decision because we conclude that there is not clear and convincing proof that Michael made a firm and deliberative decision, while competent, to decline medical treatment in these circumstances.” The Court further stated, “we are mindful that the paramount goal of our decision is to honor, respect, and fulfill the decisions of the patient, regardless of whether the patient is currently competent. The decision to accept or reject life-sustaining treatment has no equal. To err either way has incalculable ramifications. To end the life of a patient who still derives meaning and enjoyment from life or to condemn persons to lives from which they cry out for release is nothing short of barbaric. If we are to err, however, we must err in preserving life.” The accident happened in 1987 and Michael Martin passed away in a Michigan Nursing Home in 2001.
A right to direct your own medical care
Had Wendland and Martin created durable powers of attorney or any other paperwork detailing how and whether life support was to be used and when, the court battle may have been prevented, legal experts said. That’s because the U.S. Supreme Court has ruled that every individual has a right to direct his or her own medical care, even if loved ones disagree with those directions.
Thinking about these issues is not fun, which is probably why most people avoid it. You have to ponder some of the grimmest circumstances imaginable. Do I want to be on a respirator if I’m conscious? If I’m unconscious? Do I want food and water withheld? How about pain medication?
Decisions about health care, money
You also have to figure out whom to name as your so-called “attorney in fact,” or proxy, to help implement these decisions for you. You don’t have to name the same person for both powers of attorney. In fact, many people find that the people they trust to make health-care decisions are different from the ones they want handling their finances.
That said, if you’re married or in a committed partnership, that person is a logical choice to fill both roles. But you’ll still need backups in case he or she is injured or killed in an accident with you. For the health-care directive, you’ll probably want people who are nearby or at least willing to travel to the hospital to be with you, perhaps for an extended time.
The person handling your finances may be able to do so remotely, although you may still prefer to name someone who lives relatively close for convenience sake. In addition to paying your bills and handling insurance claims, the person handling your finances may also need to sell your home or make other complicated moves that require more proximity.
You owe it to yourself and family
No matter how icky you feel about planning for your own demise, you owe it to your kids to spare them the potentially ugly and drawn-out custody battle that could ensue if you don’t make these decisions now.
So go make that appointment with an attorney. A small investment of your time could spare you and your loved ones a lot of grief.
Authored by The Center for Elder Law