If you're like most people, the words "estate planning" bring to mind such concepts as wills, trusts, life insurance policies, and other methods of transferring wealth and assets to your heirs following your death. However, a complete estate plan should also anticipate and address decisions to be made during your life, in the event of your own terminal illness, serious injury, or incapacity. Several estate planning tools deal with such situations. What follows are brief descriptions of the estate planning tools that allow you to declare your wishes regarding major health care and medical decisions, and to appoint a trusted individual to make such decisions for you, in the event you are unable to do so yourself. Because the laws regarding these documents vary from state to state, it is beyond the scope of this article to list the specific requirements for each (see our directory for links to each state's living will forms).
LIVING WILL
In the event of a serious accident or illness, your condition may prevent you from communicating your wishes to physicians or other healthcare providers about whether or not to provide life-prolonging procedures. The choice is yours - you can either direct that no life-prolonging procedures be used, or that any and all available procedures be used to keep you alive for as long as possible, regardless of your prognosis for recovery. By preparing a living will, you can declare your wishes now, while you are able to make and communicate such wishes.
If you should become incapacitated (for example in a coma), and a physician has determined that your condition is irreversible, with no possibility of recovery, then the physicians will follow the instructions in your living will. In the absence of a living will, your family or other loved ones may be required to make this decision for you. If you have failed to make your wishes known, your family might have to guess what your decision would be. This can obviously lead to tremendous stress, anxiety, and possibly even family conflict. Make your wishes known and document them in a living will before it's too late.
When preparing a living will, be sure to follow your state's laws regarding the formalities for such a document to be valid and effective. Many states specify the format to be used for a living will (for example, see the Illinois standard form for living wills). You may wish to consult an attorney for assistance in the preparation of this important document.
DO NOT RESUSCITATE ORDER
It may be necessary to have a Do Not Resuscitate Order ("DNRO") in addition to your living will. Emergency medical services personnel (such as paramedics or emergency room staff) may not be permitted or required to honor a living will, but would generally be required to honor a DNRO. Speak to your physician about obtaining a DNRO.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
You can use a durable power of attorney ("POA") for health care to appoint an attorney-in-fact (agent) to make health care decisions on your behalf, in the event that you are unable to make or communicate such decisions yourself. Whereas a living will addresses life-prolonging treatments, a health care POA also encompasses other medical treatments, as well as decisions regarding nursing home care, surgeries, etc. A health care POA may also come into play in situations in which the reversibility or irreversibility of your condition cannot be determined with certainty (in which case a living will may not be given effect). In the absence of such a document, the law would most likely allow your spouse or other close family member to make such decisions, but these individuals may not be aware of what your own wishes would be. So again, preparing a health care POA will not only ensure that your own wishes are carried out, but can also save your family from the stress and uncertainty of having to guess what your wishes would be. To ensure your agent knows and understands your wishes, you should of course discuss the contents of your health care POA with your agent.
A Health Care Advance Directive is a document that combines your living will and health care power of attorney in one document.
CONCLUSION
A comprehensive estate plan should include not only instructions about your assets to be put into effect after your death, but also one or all of the above health care directives to be followed in the event of your own incapacity, terminal illness, or serious injury.
You may prepare your own health care directives using such services as LegalZoom or Nolo Press (see below). However, you may wish to consult an attorney to answer your specific questions, or for unique or unusually complex circumstances.
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