Estate Planning: What Do I Really Need?

It became obvious that my grandparents needed my help after they had wandered two hours from their home and had to be brought back by the sheriff. What followed was a devastating diagnosis of dementia—Grandma with Alzheimer’s, and my grandfather with an unspecified dementia type. Dozens of questions swirled around in my mind, but the most prominent one was, “What on earth do I do now?”

The most logical first step was to meet with my grandparents’ lawyer. That turned out to be exactly the right move; he gave me specific information as to how I had been equipped to help my grandparents, releasing to me their original durable power of attorney documents. But then I had a whole new problem: what exactly did those documents actually do?

Well, in time I did learn, but it was on the fly. Following the lawyer’s instructions, and making frequent calls to his office for clarification, I began to understand just what a blessing those documents were.

Today, as a speaker and a workshop leader, I find that many caregivers face a similar situation. They know their loved one wants them to handle things, but they don’t know which documents do what. So let’s examine the basic estate planning documents and highlight their purposes.

Let me clarify, as I always do whenever I speak on this topic, I am not a lawyer, so please do not take my word as legal advice. This article serves merely to provide you information to get you thinking; for a complete description of what legal documents you need for your specific situation, please consult an attorney.

The Advance Directives:

Power of Attorney & Living Will

Legaldictionary.net defines power of attorney (POA) as the granting of authority to one individual to make decisions for, and to act on behalf of, another individual (referred to as “the principal”). This is one type of advance directive (a document you prepare in advance to express your wishes in case of illness or some other incapacitation). With a statutory durable power of attorney, you can appoint a person who will be able to act on your behalf should something happen to you. In my experience with my grandparents, I learned the term “durable” was very significant; it means that the POA is not affected by the incapacitation of the principal; in other words, my authority to act on my grandparents’ behalf was not affected even though Grandma and Grandpa were both diagnosed with dementia.

A second form of advance directive used in estate planning is the living will, a document that allows the principal to specify what their wishes are regarding life-sustaining or life-saving procedures; basically, it outlines what you do (or do not) want done, but it provides no authority for anyone to act on your behalf. It may not seem like that big of a deal, but consider this: it takes the mystery out of what you do or do not want done. It means that in a stressful situation, your loved ones won’t have to try and figure out what you would want them to do because your living will has already told them. Both the POA and the living will are necessary documents, but they differ in their scope and limitations.

Keep Your Documents Updated

My grandparents’ POA documents, drafted and used more than twenty years ago, were very competently put together; they each had a single document which gave me authority over everything that had to do with them. However, as times have changed, so has the way these documents are drafted. Today, a complete estate planning package includes individual documents to address specific areas.

• The Statutory Durable Power of Attorney, a document which covers personal business and financial issues, but nothing medical
• The Directive to Physicians and Family (the living will)
• A separate Medical Power of Attorney which authorizes the person you chose ahead of time (known as your agent) to make healthcare decisions for you if you are incapacitated
• A HIPAA (Health Insurance Portability and Accountability Act) Release Form to ensure your designated agent has access to your medical information from your physician
• A Last Will and Testament

These documents may vary from state to state, so it is best to speak with an attorney to make sure you understand what forms you may need. Often an initial consultation with an attorney is free of charge, so I encourage you to take advantage of that opportunity to learn more about how you can effectively protect yourself and your family.