Suppose, due to illness or injury, you are unable to make decisions about your medical care, finances, or legal affairs. Who makes those decisions for you? You may be thinking, “I’m married. My spouse would handle that,” or, “my children could decide for me.” Unfortunately, without making clear designations, those closest to you may not have legal authority to carry out your wishes. Every adult should therefore have a set of written “advance directives.” Without them, a guardianship proceeding must be initiated, and a judge will decide who makes decisions for you. Guardianships are very costly, stressful for your loved ones, and often humiliating for you.
There are three basic advance directives we recommend to all of our clients. Each of these documents may be customized to meet your particular circumstances, and we often draft custom language to meet client-specific preferences. While few of us like to think about the possibility of illness or infirmity, it is far better to plan ahead than to face incapacity without having these documents in place.
HEALTHCARE SURROGATE Designation
State law specifies who is authorized to make medical decisions for an incapacitated person (usually a spouse, then adult children, then parents, then siblings). But suppose any of those individuals are not available when needed? Or suppose the person designated by statute is not who you would want making decisions for you? After all, even close family members and spouses can hold very different opinions about medical care and end-of-life decisions. A written designation ensures that you choose who is in charge of your healthcare decisions.
DURABLE POWER OF ATTORNEY (DPOA)
Unlike with healthcare decision-making, state law grants no authority to your spouse or family to access your bank account, investments, safe-deposit box, or other financial assets. Without a DPOA, a guardianship proceeding must be initiated in court and a judge will then determine who manages your finances. DPOAs are also critical documents when engaging in asset-protection and Medicaid planning for an incapacitated person.
A living will expresses your desires about end-of-life decisions should you be terminally ill, such as the use of feeding tubes and the issuance of a do not-resuscitate order. While most people do not wish that extraordinary measures be taken to keep them alive under such circumstances, a living will can also be used to direct that affirmative measures be taken to prolong your life.
Other advance directives
There are other advance directives that may be appropriate in specialized circumstances, such as burial/funeral designations, HIPAA authorizations, and others.
To learn more about advance directives please schedule an initial consultation by calling our office at (954) 227-7320 or using our online contact form (we will follow up with you within one business day).