by Bruce L. Dorner
Life is complicated enough. Everyone wants a simple will. Ah, do I wish everyone could have a simple will and a simple life!
In previous columns I’ve shared my views on how to keep it simple and to make it fit your personal family situation. However, there’s more to basic planning than just a will.
Let’s consider what happens if you are injured and unable to manage your affairs or if you start to get a little feeble, like Great-Grandma. Who can act on your behalf? Who can sign the rent check? Who makes sure the electric bill gets paid? Who makes decisions regarding your medical care?
When wills are prepared in my office, we always talk with our clients about a Durable Power of Attorney, a Health Care Directive, and a Living Will. Let’s briefly examine why you should have each of these documents.
A Durable Power of Attorney is a legal document which authorizes someone to sign your name. It is probably the most powerful tool in the estate planning toolbox. Consider what happens if you are injured in a traffic accident. You’re in the hospital and you’re in rough shape. The doctors report that you’ll have a complete recovery, but you’ll be on heavy medications and bed ridden for several weeks. You were in the process of buying a new car. Your spouse knows you really want that car. So, with Power of Attorney in hand, your spouse visits the car dealer, signs your name, and you have a shiny new vehicle when you recover. The Power of Attorney can be used as many times as needed. The person who holds the authority to sign your name has a fiduciary duty to account for their actions, so there is some protection that they won’t abuse their power and “sell the farm.”
Another important instrument is the Health Care Directive. It is also called a Medical Power of Attorney or Medical Proxy. This document is a creature of legislated law. In New Hampshire it is in the statutes at RSA 173-J:1-16. There is a clearly defined set of rules and scope of authority you may grant to someone to make medical care decisions on your behalf if you are disabled. The statute is just complicated enough that I recommend reviewing the many choices for scope of authority with an attorney, and, after careful consideration of the family structure and potential for differing opinions of the degree of heroic measures to be used to maintain your life in certain circumstances.
The third leg of this journey into estate planning documents takes us to the so-called Living Will. Again, this is a creature of statute. It was originally found at Chapter 137-H of the New Hampshire Revised Statutes Annotated. It has now become a part of RSA 173-J. This legal document is your personal list of instructions as what steps you want taken if there is no hope to keep you alive. The law provides several protective steps, including that death must be imminent and two doctors, one of whom is your attending physician, must certify to the medical certainty before implementing the Living Will. You may also include instructions as to whether you want artificial nutrition and hydration provided to prolong your life. In my experience, it is very comforting to your family if you have made this decision by having a Living Will so they don’t have to debate, “what would Mom or Dad have wanted us to do,” while sitting by the hospital bed.
In short, the next time you visit your attorney, don’t ask for a “simple will.” Ask, “what documents do I need to protect my family.”
This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.