One of life’s toughest challenges is to face serious illness, incapacity, or the end of life for a loved one. Here is exactly what you need to know about each of your valuable estate planning documents to help guide you through those times. We create both legal and health documents to ensure that you and your loved ones’ wishes are followed.
First, the legal documents:
Financial Power Of Attorney
Your power of attorney is a legal instrument that empowers another person to act as your agent to manage your property and affairs. It is valid only during your lifetime, for assets held in your name only. That means that joint checking or savings accounts cannot be accessed with a power of attorney and that assets held by a trust are not controlled by it.
Typically, we create a general durable power of attorney for you: general, which gives the agent broad and plenary, or complete, powers and durable, which remains in effect even after incapacity.
A limitation of the financial power of attorney is that it is often rejected by institutions, due to staleness. Some financial institutions require a specific power of attorney form.
Your successor trustee will use the trustee’s affidavit. It is comprised of two parts:
- The affidavit itself, which gives pertinent data about the trust in bullet points without releasing private data such as details about asset distribution. Instead, the affidavit states that supporting pages from the trust can be provided upon request.
- The attachments referenced in the affidavit.
When a trustmaker becomes incapacitated, we execute a new affidavit to certify incapacity and prove the authority of the successor trustee, and attach proof of incapacity. The successor trustee must present this to financial institutions, life insurance companies, and HR departments to gain authority over accounts.
Certificate Of Incapacity
The definition of incapacity depends on the trust document: Article 3 or 4 states how the incapacity of a trustmaker will be determined. A certificate of incapacity is needed from at least one licensed physician as well as the healthcare agent named in the trustmaker’s healthcare power of attorney.
Next, the health documents:
Your HIPAA form is a health document that nominates the agent or agents who may receive medical information on your behalf. Your agents in this case are the people you have named as your healthcare agents, and may also include others who you want to receive medical information on your behalf. The HIPAA form also names which attorney will receive medical information for the limited purpose of determining incapacity.
Healthcare Power Of Attorney
This health document nominates agents who will make medical decisions on your behalf when you are unable to do so. This grants general and broad powers, including the authority to employ or discharge medical professionals and authorize palliative care.
It is critical to choose your healthcare agent carefully and to have a candid, open discussion with that person so that you can be sure that your wishes are followed.
Your living will details your wishes about the extent of “extraordinary” medical care you desire in the case of imminent death from an irreversible condition or a persistent vegetative state. It provides the legal authority for your healthcare agent to refuse or withdraw extraordinary medical care and covers life support, artificial nutrition, and artificial hydration.
Finally, there are two essential health directives:
- Do not resuscitate order or DNR: This applies only in situations where the patient’s heart or breathing has stopped, and it must be completed with your doctor.
- Physicians orders for life-sustaining treatment or POLST: A more detailed and specific DNR for people with an advanced progressive or terminal illness, this is completed with your doctor based on your end-of-life care decisions.
If you have any questions about the legal or health documents needed in an emergency or would like to change or update your documents, please contact us at (703) 448-7575.