Even efficient people who don’t normally procrastinate may find or invent excuses to avoid what could be the most important task in their life—documenting their last wishes, which necessarily include end-of-life decisions about health care.
It’s no mystery that the task is disconcerting. Who doesn’t want to postpone—or ignore—the circumstance that demands it? Family members are naturally hesitant to broach the subject with aging relatives, not wanting to upset a loved one with an unpleasant reminder. While understandable, such reluctance also suggests a misplaced limitation—the reminder shouldn’t be reserved only for the grandparent generation. People of all ages should have a written expression of their wishes regarding choices about health care, guardianship of minor children, asset management and transfer, and more. Where “one-document-fits-all” might have been appropriate at one time, it no longer seems sufficient.
The following overview briefly describes several of the more common documents in use today. For specifics, individuals should seek input from those with expertise in each field that applies—legal, medical, financial—to be sure all their concerns are addressed. Documents should always be checked by an attorney from the person’s home state.
Last Will and Testament
The most familiar document for conveying last wishes is the Last Will and Testament. When a person dies, his or her estate will be administered by the state’s probate court, whether or not a will is involved. When there is a will, the court will give authority to oversee the will’s provisions to the person appointed in the will (the executor). When there is no will, the court handles such distribution according to state laws and without knowing the decedent’s desires.
A will lets you specify who should receive what after your death, whether you’re listing financial assets or family heirlooms. A will allows you to appoint a trusted person as executor to ensure that your wishes are carried out and your property and possessions are distributed to the named individuals (beneficiaries).
A will covers more than the distribution of money or property. Its importance is often emphasized by the problems that could arise when a person dies without one (referred to as “intestate”) and the court administers the estate. When minor children are involved and both parents die without a will, it is the court who will name the children’s guardian. Arguably, this fact may be the most important reason for younger individuals to write a will. Also, with many families formed by second or even third marriages, the settlement of an estate can get very complicated.
Writing a will requires a statement from the person creating it that he or she is of sound mind and free of outside influences. The will must also be signed by witnesses. If a person later decides to alter any part of the will, the changes can be noted on a separate document (called a codicil and also witnessed) or by making an entirely new will containing all the now-desired provisions. The date on the most recent will establishes its validity.
(also called Advanced Directive or Advanced Medical Directive)
A Living Will has nothing to do with the distribution of property. Its purpose is to define and state your choices regarding life-sustaining treatment or procedures when a doctor has determined that you will not recover from an illness or injury. Such choices might involve blood transfusions, dialysis, or a do-not-resuscitate order, for a few examples. It may also note your preferences regarding organ transplant, burial, or cremation.
As part of this document, you appoint an agent to see that your wishes are carried out if you are unable to speak for yourself, a situation that calls for a detailed discussion beforehand with your potential agent. The Living Will pertains to end-of-life specifics only. It helps to prevent confusion or disagreement among family members at a stressful time, as your desires are clearly specified in writing. A copy of the document should be given to the agent as well as your primary doctor and possibly the hospital where you will most likely be admitted for treatment.
See also Power of Attorney for Health Care.
Power of Attorney
for Health Care
(also called Medical Power of Attorney)
A Power of Attorney for Health Care is not intended to be a replacement for a Living Will, but rather an additional document. It covers all health care decisions, not just those related to end-of-life. You appoint a trusted person to make medical decisions on your behalf if an illness or injury should affect your ability to make your own decisions. This is another situation where the person you choose must be consulted to be sure he or she is willing to take on the responsibility. The Power of Attorney for Health Care can be considered if you will be undergoing surgery soon, or if you simply want to be prepared for all unexpected circumstances. It will take effect only when a doctor states that you are incapacitated. Health care decisions can also be spelled out as part of a General Power of Attorney.
General Power of Attorney
With this document, you appoint someone to act on your behalf in a variety of situations—financial, legal, and/or health related. The powers granted can be temporary, with termination dates specified, or they can be long-term, with terms or conditions also specified.
Because of the wide range of possibilities that could be covered by a General Power of Attorney, the document should most likely be drafted by an attorney so that the paper is written to grant or limit its authority according to your stated needs or wishes.
Not an alternative to a Last Will and Testament, the Living Trust is related to the intent of a will. A trust ensures that certain assets will go to beneficiaries in a timely manner after your death without going through the court system. As part of advanced planning, a trust is a financial arrangement whereby the person creating the trust (the grantor) transfers ownership of specified assets (property or money) into a trust, to be managed by a trustee. Initially, most grantors choose to be the trustee, maintaining control over the assets just as they did before creating the trust. Since they derive the benefits of the trust at this time, they are also considered beneficiaries. A backup or successor trustee is also chosen to manage the trust when the grantor/trustee is no longer able to do so because of disability or death. While the grantor is alive, terms of a trust can be amended or revoked. When the grantor/trustee dies, control is transferred to the successor trustee or the institution holding the assets, to be distributed to the designated beneficiaries.
In the case of a trust that was established for the support of a minor or another dependent, the trust may stay in effect even after the death of the grantor.
Many companies advertise do-it-yourself legal forms, but the convenience of using such forms shouldn’t outweigh the desire for thoroughness and accuracy. Given the importance of communicating end-of-life choices, it seems more reasonable to get advice or assistance from legal, financial, and medical professionals, all of whom are familiar with the state’s regulations. A final check of all documents by a Virginia attorney can give you the confidence that they clearly convey your desires and directives.