Plans for retirement should include taking an inventory of estate planning documents including wills, trusts, powers of attorney, pensions and IRAs as well as living wills or health-care designations. The use of a living wills and designation of health-care surrogate should be considered as part of every estate plan.
We are often caught up in tax planning for estates, but we should not forget the importance of planning for incapacity or terminal illness. Although most hospitals and health care facilities will have forms of living wills and health-care designations available to be signed as part of the admissions process, it is better practice to make these designations in advance of being admitted to a hospital and at a time when they can be made with due consideration.
Most states now have specific statues which authorize living wills and the appointment of agents to make health-care decisions. Most living will statutes describe the type of written declaration which one may make to signify the desire that life-prolonging shall not be used, or terminated in the event of a terminal illness from which there is no chance of recovery and where such artificial support systems will only prolong the instant of death.
Health-care-agent statutes give any competent adult the power to designate a health care surrogate to make health-care decisions for him or her and to provide informed consent if he or she is incapable of making health care decisions or providing informed consent. The surrogate must accept the designation in writing. The designation itself must be written and signed before two independent witnesses. Some states will allow one of the witnesses to be a spouse, blood relative or heir who is responsible for paying his health care costs, but if possible, it is better to have two independent witnesses who are likely to be easily contacted and available. There are further technical requirements which each statute describes and which must be observed.
If separate documents are used for the living will and the designation of health care agent, the same person should be designated in both documents.
Since a durable power of attorney should also be part of the plan, it is important that the designation of health-care agent and attorney in fact are consistent if the power of attorney is very broad and includes some medical authorizations. Again, if medical authority is included, it is sensible to avoid giving different persons the same power. If no medical authority is included in the power of attorney, then a different person could reasonably be named as attorney in fact to make business, property and financial decisions.
Attorney Alan S. Novick of Naples and New Bedford, Mass., has been certified as a Florida bar wills, trusts and estates lawyer. Novick is a member of the Massachusetts Bar and the Florida Bar. His Florida practice is limited to probate, estate and tax planning. Contact him at firstname.lastname@example.org. The information provided in these columns is for general information and cannot be relied upon as legal advice. Readers must consult your own attorney for specific legal advice.