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Medical Directives and Living Wills

Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we will become sick and unable to make our own medical decisions. Medical science has created many miracles, among them the technology to keep patients alive longer, sometimes indefinitely. As a result of many well-publicized “right to die” cases, states have made it possible for individuals to give detailed instructions regarding the kind of care they would like to receive should they become terminally ill or are in a permanently unconscious state. These instructions fall under the general category of “health care decisionmaking.” In Mississippi, this takes the form of an advance healthcare directive, or a durable power of attorney for health care.

The Durable Power of Attorney for Health Care

If an individual becomes incapacitated, it is important that someone have the legal authority to communicate that person’s wishes concerning medical treatment. Similar to a financial power of attorney, a durable power of attorney for health care allows an individual to appoint someone else to act as their agent, but for medical, as opposed to financial, decisions.

The health care DPA is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions. By executing a health care DPA, principals ensure that the instructions that they have given their agent will be carried out. A health care DPA is especially important to have if an individual and family members may disagree about treatment.

In general, a health care DPA takes effect only when the principal requires medical treatment and a physician determines that the principal is unable to communicate his or her wishes concerning treatment. If the principal later becomes able to express his or her own wishes, and is competent to do so, he or she will be listened to and the health care DPA will have no effect.

Appointing an Agent

Since the agent will have the authority to make medical decisions in the event the principal is unable to make such decisions for him- or herself, the agent should be a family member or friend that the principal trusts to follow his or her instructions. Before executing a health care proxy, the principal should talk to the person whom he or she wants to name as the agent about the principal’s wishes concerning medical decisions, especially life-sustaining treatment.

Once the health care proxy is drawn up, the agent should keep the original document. The principal should have a copy and the principal’s physician should keep a copy with that individual’s medical records.

Those interested in drawing up a health care proxy document should contact an attorney who is skilled and experienced in elder law matters.

Advance Medical Directives

Accompanying a health care proxy should be a medical directive. Such directives provide the agent with instructions on what type of care the principal would like.

A medical directive can be included in the health care proxy or it can be a separate document. It may contain directions to refuse or remove life support in the event the principal is in a coma or a vegetative state, or it may provide instructions to use all efforts to keep the principal alive, no matter what the circumstances. Medical directives can also be broader statements granting general authority for all medical decisions that are important to the principal. These broader medical directives give the agent guidance in less serious situations.

Living Wills

Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions.

The living will states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to draw up a living will. Like a health care proxy, a living will takes effect only upon a person’s incapacity. Also, a living will is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so.

A living will, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma or a vegetative state.

Beware of Living Trust Scare Tactics

While most people know they should have some sort of estate plan in place, many procrastinate because they don’t want to undertake the process of creating one. Some are concerned about the expense and most worry about choosing an option that will accomplish their wishes as they intended. Sometimes it seems as if no plan is better than falling prey to the wrong plan.

There is so much conflicting information regarding estate planning options, it’s difficult to know whom to trust. Some so-called authorities have scared the public into believing that certain estate planning tools are all bad or all good in order to promote their own cure-all methods.

While most people realize that few things fall into such black and white categories, don’t be fooled by self-appointed experts who espouse such extreme beliefs as:

  • Living Trusts are always bad or always good
  • The sale of Living Trusts is the scam of the decade
  • Living Trusts unnecessarily expose your home, retirement accounts, insurance and other exempt assets to creditors
  • Living Trusts increase rather than decrease taxes and delays
  • Living Trusts are more expensive and time consuming than probate
  • Courts are declaring Living Trusts invalid

A Living Trust, unlike a Will, is open to challenge and creditors’ claims for years. On the other hand, you must also watch out for salespeople who proclaim that a Living Trust is the indisputable solution to every person’s estate planning needs. While a Living Trust can be an effective tool, it may not be right for everyone. Be especially wary of trust mills that aggressively promote cheap trusts that seem too good to be true – they are! How You Can Protect Yourself It is crucial to make sure you are working with a legitimate estate planning firm rather than an impostor trust mill.

The following list can help you tell the difference. Always Be Alert for the Following:

  • Non-attorneys giving legal advice. Only a licensed attorney has the experience and expertise to provide the legal advice necessary to achieve your goals. There are important reasons it is unlawful for non-attorneys to provide legal advice.
  • Going through the entire trust process without ever actually meeting with an attorney licensed in your state. Estate planning laws vary from state to state so it is important to know that you are dealing with a qualified attorney who is well-versed in local laws.
  • Cheap trusts. Remember, you get what you pay for! It can take substantial amounts of time and energy to prepare a proper estate plan that meets all of your needs. That kind of care and investment costs more in the short term but can save you and your family immense heartache, aggravation and expense in the long run.
  • Your own instincts. Gut feelings exist for a reason – don’t ignore them! Trust your instincts and if you have any doubts, don’t be afraid to check with your state’s bar association for past complaints against your attorney.

There are many reasons to create an estate plan, many of which you may not have ever considered. The list below provides a variety of examples of why it is vital to have a proper estate plan in place. The only way to know for sure what is right for you and your family is to discuss your options with a qualified estate planning attorney. Our office can help you determine what your needs are and which tools will best fit those needs.

14 Most Common Reasons to Do Estate Planning

  • Designate who will manage your affairs if you become disabled and when you pass away.
  • Plan for Medicaid and its impact on your estate if you must go into a nursing home.
  • Avoid guardianship/ conservatorship, during your lifetime and probate when you pass away.
  • Protect children from a prior marriage if you pass away first.
  • Protect assets inherited by your heirs from lawsuits, divorces and other claims.
  • Impose discipline upon children (and/or grandchildren) who may not be capable or experienced in managing money.
  • Provide for special needs children and grandchildren.
  • Insure that a specific portion of your estate actually gets to grandchildren, charities, etc.
  • Protect a portion of your estate if you pass away first and your surviving spouse remarries.
  • Address different needs of different children.
  • Prevent or discourage challenges to your estate plan.
  • Reward/encourage heirs who make smart life decisions, and prevent the depletion of your estate by those who do not make smart choices.
  • Assure an education for children/grandchildren, despite what they (or their parents) dream of doing with the inheritance.
  • “Brady-Bunch” family estate planning: assure the stepparent doesn’t spend your children’s inheritance and/or provide for a spouse by sacrificing the intended legacy for children of a prior marriage.

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