It is a very good idea to create advance directives in order to plan for the possibility that you may one day be unable to make your own medical decisions. In doing so, there can be confusion about the difference between a living will and a "do-not-resuscitate" order (DNR). While both these documents are advance medical directives, they serve different purposes.
A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you are incapacitated and is not set in stone -- you can always revoke it at a later date if you wish to do so.
When drawing up a living will, you need to consider the various care options and what you would like done. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life- saving or life-prolonging options.
A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state. Everyone can benefit from a living will, while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.
In addition to a living will, you will also need a health care proxy or broader medical directive.
“To many, will planning and estate planning are the same. While the terms may seem interchangeable, they are actually very different processes.”
Will planning and estate planning are very different processes. Both provide family members with instructions on how assets should be distributed after death, but estate planning goes beyond that, to provide instructions on your health, finances and more while you are living, according to an article from Lexology titled “The Differences Between Will Planning & Estate Planning.”
An estate planning lawyer can help you determine exactly what kind of planning you need, help you create the documents that will support your needs and give you and your family guidance in more complex matters.
Will planning is a relatively simple process that involves creating a document known as a last will and testament. It conveys instructions for after you have died. That may include naming a guardian to rear your children or who should take over your business, who should be in charge of your estate, the executor and who will receive your assets.
Everyone needs a will. It avoids family disputes about property, saves money on legal expenses that occur when there is no will and makes many decisions about your estate much easier. It is a kindness to your loved ones, to have a will.
Estate planning is a little different. It is more detailed and involves tax planning and certain protections for you while you are living. A living will is used to convey your wishes about what kind of medical care you want, if you should become unable to speak on your own behalf. The living will includes end-of-life care, the use of extraordinary measures, like a respirator or feeding tube and more. This is also a kindness to your loved ones, since it spares them from having to guess what your wishes might be.
You’ll also want to have a financial Power of Attorney created to instruct a named person regarding how to handle your money, your business and your investments, if you are unable to function. This person can do anything you could do, from transacting business to moving money into accounts, etc.
A living trust can be used to outline your wishes regarding your property and finances. An estate planning attorney will be able to review your assets and determine whether you need a living trust or if there are other trusts that may be more appropriate for your situation.
Beneficiaries are the individuals named on various accounts. They will receive assets directly from the institution that holds the assets, like insurance policies, retirement accounts, investment accounts and the like. It’s very important to understand that when there is a beneficiary named in a document, that beneficiary will get the assets, regardless of what your will says. These should be updated on a regular basis and if possible, you should always have a primary beneficiary and a secondary beneficiary.
An estate planning attorney will review your situation and talk with you about your goals for your family and your assets after your death. They will create a comprehensive plan with the necessary documents.
“It’s one of the most important conversations that none of us want to have.”
The conversation with loved ones about growing older and the chances that we or our spouses are going to need help with the activities of daily living, is something that needs to be talked about before being faced with that situation. It’s difficult at best, says The Des Moines Register in the article “In 2019, resolve to have a difficult conversation,” but very necessary.
The person who is contemplating needing help, may want to start the conversation but the person who may be called on to help may find it too difficult to consider. Who wants to think about their parents getting frail and needing help going to the bathroom? No one.
The person who is starting to feel the impact of aging, may already be aware of some limitations. However, talking with their children or potential caregivers, may change the conversation from “someday” to “soon.” The loss of independence is one of the big milestones, just as gaining independence is a milestone earlier in life. That’s a hard thing to accept for both sides.
Those who have lived through this process of needing to become caregivers, say that it would have been easier, if they would have known what their loved ones wanted. So, would have been knowing what kind of help their loved ones could afford. It’s better to have time to research available resources in advance, rather than operating in crisis mode.
This is what your conversations need to address:
Medications, physical health, emotional well-being and health care providers
Their wishes, if their health declines slowly or rapidly. Do they want to stay at home? Who would they want to help with daily care?
Finances: Can they afford to pay for care at home? Has any Medicaid planning been done? What government programs are they eligible for? Do they have a CPA or financial advisor?
Estate plan: Where is their Last Will and Testament? Is there a Power of Attorney, Living Will or Medical Directive in place? Who is their estate planning attorney?
Documents, including birth certificates, Social Security, insurance cards, safe deposit box keys, computer passwords, etc.
We prefer to think we’ll live a long healthy life and then die peacefully in our sleep, with no advance notice. However, that is not what happens to most Americans. Seven out of 10 people over age 65 will need help from others at some point, and most will need it for at least three years. Therefore, make having this conversation part of your New Year’s resolutions. When the time comes, you and your caregivers will be glad that you did.
“You have reviewed multiple drafts of your Will, Trust, Living Will and Financial Power of Attorney, attended multiple meetings with your attorney, discussed the final distribution of your assets, selected your Executor and Trustee and finally executed your estate planning documents. So, you must be done, right?”
Putting your estate plan in place is a big first step in the process. However, it is only the first step for many people, according to this article “So You Think You’re Done with Your Estate Plan…” from the National Law Review. Here’s an excellent checklist of items that are commonly overlooked and that can undo all your good efforts.
Beneficiary Designations. These assets generally do not pass through the will, so the beneficiary named receives the asset, whether it’s proceeds from a life insurance policy or the entire contents of your investment accounts. These forms must be prepared and filed with the account custodian or the insurance company, so beneficiaries are properly identified. If you have not looked at these designations for more than a few years, it’s time to look at them again to make sure the ones you originally selected are still the ones you wish to receive your assets.
Trust Funding and Form of Ownership of Assets. You can easily wreck your entire plan by failing to fund trusts or retitle assets. If you’ve executed a Revocable Trust with probate avoidance in mind, for instance, and then fail to fund the trust, your beneficiaries will need to probate your assets. Assets owned jointly with rights of survivorship will not pass according to your will. If your estate plan was done with taxes in mind, you could put the entire plan at risk.
Talking with Family and Trusted Professionals. Having a plan no one in the family knows about, can lead to an estate disaster. Speak with family members, so they know you have an estate plan and who they should be in touch with when the time comes.
Accessibility of Estate Plan and Related Information. If your documents are locked up in a safe deposit box or an encrypted file or secure portal, no one will be able to access them. Your estate planning attorney will be able to advise you, as to the best way to ensure that paper and electronic documents are available to family and fiduciaries when needed. The same holds true for burial and health care instructions. Prepare a list with the contact information of your estate planning attorney, basic information about your assets and other information that will be needed by family and fiduciaries.
Keeping Up with Change. Tax laws change and lives change. If you have been divorced, had a serious illness, or any major change to your assets, you’ll need to speak with your estate planning attorney to see if any of those changes need to be incorporated into your estate plan.
“Are you ready for the end of life? Many of us can resolutely answer “no.” I am not implying preparation for life after death, salvation or eternal darkness—I simply mean forethought in the medical care that you wish to receive in a life-threatening illness or injury.”
When most people think of preparing for the end of their lives, it’s accompanied by an image of an elderly person surrounded by loved ones. Not everyone is lucky enough to have what we call a “good death.” Preparing for end of life, as described in an article from The Herald-Mail titled “It’s never too early to prepare for the end of life,” needs to include emergency situations, where decisions about life-saving measures must be made, usually by family members who are often not prepared.
Spare your loved ones from the agony of making decisions, based on what they think you might have wanted by planning in advance for what is, without question, unpleasant to consider. Nevertheless, in today’s era of medical technologies, such scenarios are quite possible. Let’s start with the advance directive.
Advance directives are legal documents that include both a living will and medical power of attorney. The living will allows you to document your specific preferences for medical care at the end of life. These range from aggressive intervention that saves your life, to palliative comfort care that gives medication to alleviate pain and suffering. There is a wide range between the two, so the more specific you can be, the better your loved ones will know what you want.
A medical power of attorney lets you designate a trusted person—spouse, friend or adult child—to make decisions for medical care, if you cannot do so. This is also known as a health care surrogate or proxy.
Here’s what happens when no advance planning has occurred. A critical medical situation arises, and family members are contacted. Without having had a discussion about the person’s wishes, typically an aging parent, siblings don’t know what to do. If they do know what to do, but there is no legal document attesting to their parent’s wishes or if the legal document is not physically present, the medical provider is bound by their own determination of the situation and their professional code of ethics.
That action may not be what you would have wanted. However, your family or trusted friends do not have the right to make decisions, if legal documents are not in place. The solution is relatively simple: plan in advance.
First, give serious thought to what you would want to occur. Make a list of questions to discuss with your primary health care physician.
Second, have a conversation with family members and friends about your wishes, and discuss with them their role in such situations. Are they willing to carry out your wishes and to take on this responsibility?
Third, meet with your estate planning attorney and prepare the necessary documents. While you’re doing that, review your estate plan to ensure that your end-of-life wishes, and overall estate plan are aligned.
“Advance directives come up frequently in conversations about health care decision-making, as people age. Their purpose is to provide written instructions for medical care, in instances where a patient is unable to communicate them herself.
There are two components that make up an advance directive: a durable power of attorney and a treatment preferences section.
The durable power of attorney for health care allows you to appoint someone to make medical decisions, if you lack the capacity to make those decisions for yourself.
The treatment preference, which is sometimes referred to as a living will, lets you specify what kind of treatment you would want in a difficult circumstance. Treatment and care preferences usually focus on what you would want at the end of life or if you were in a permanently unconscious state. There are other preferences that can be expressed, including pain control, blood transfusions, mental health care and spiritual care. Another preference: who should—and should not—be involved in discussions about treatment.
Most people want to express their wishes to avoid aggressive measures being taken to extend their lives, when the end result will be suffering and a delay of their passing. Others chose to avoid the financial burdens that may or may not result in any kind of change in their health or the quality of their life.
Some have these documents prepared to make it clear that they want to spend their final months, weeks or days at home with loved ones with care only to relieve pain or care, so they can be conscious and able to speak with those around them.
Advance directives are a blessing to loved ones since they do not have to make hard choices in a crisis situation. They know what their aging parent or spouses wishes.
It’s important to choose the person you want to be responsible for your care well in advance. Make sure it’s someone you trust, who knows you well and will be able to make hard decisions in a highly emotional time. They’ll also have to be able to communicate with your doctors and family members.
These documents are bound by the laws of your state, so speak with an estate planning attorney who practices law in your state of residence. They’ll be able to prepare these documents on your behalf, along with a will and other estate planning documents.
“There is no doubt that, for the most part, parents are much more involved with their children and their children’s more numerous activities, than parents were when I was growing up.”
If this describes you and your kids, then you need to prepare yourself for the adjustments that happen when the last child leaves the house. It can be emotionally and financially challenging, according to the Daily Messenger in the article “John Ninfo: Some advice for empty nesters”
With one less person in the household, it’s time to re-adjust your budget. Many of your everyday expenses, such as electricity, food and gas, will likely be lower. However, you may have new expenses related to your new life. You may spend more on activities that were put off until the kids grew up or find yourself dining out more often. Go slow when it comes to spending money on pricey vacations or fancy dinners. You want to strike a balance between enjoying your new-found freedom and cash flow, as well as keeping retirement savings in mind.
Assuming your cash flow is easier now, it’s time to commit to paying down outstanding debts, especially credit card debt. Reduce any interest or finance charges that you can. You might even think about paying down your mortgage or paying off a high-interest car loan. If you’ve taken on student loans or a home equity loan, now is the time to try to knock those down. At the same time, try to minimize any new spending or borrowing.
Take another look at how your retirement saving is progressing. Will you have enough at your current rate of spending, or should you ramp up your efforts, if you have room in your budget?
Have you thought about downsizing, or decluttering? Even if you are not planning on moving, your home may be filled with things you don’t need or want anymore. Set some time aside to clear out what you don’t need, donate what you can to a local charity or start planning yard sales. You don’t have to tackle this project all at once. It is possible to donate a few hours each weekend to the task.
When was the last time you updated your will and other estate planning documents? Now is the time to revisit these matters, as well as looking at any long-term care insurance. If you don’t have a long-term policy in place, this is the time to buy it—if you can.
Are you finding yourself with a lot of free time? We don’t often ask ourselves the important questions, like “What matters to me?” and “How do I want to be remembered?” Many people find the answers to those questions in service to others. If you’re not already volunteering with an organization, find the ones that resonate with your values and get involved.
Don’t immediately start on expensive home renovations or decorations. Give yourself time to adjust to a quieter house and think about where you want to invest those resources before spending. A redecorating project is fun but may be making yourself busy and filling time. The project may not actually be affordable.
The empty nest presents many new opportunities for a fresh start. Use them wisely.
“Do not buy into the myth that estate planning is only relevant for wealthy individuals who need tax planning.”
One of an estate planning attorney’s main responsibilities is ensuring that clients understand the importance of addressing these matters before they become an issue, reports the New Jersey Herald in the article “The importance of putting plans in writing.”
The message hits home especially hard, when the friends of estate planning attorneys experience problems that could have been resolved earlier with correct planning. In one example, a woman’s friend began to experience unexpected health problems. Her husband is incapacitated and there are no children to step in and help. The couple’s lack of legal documents has made a difficult situation even worse.
Although discussing concepts like end-of-life care can be challenging, all adults do need to have specific plans in place, even if their estate plan is basic: a last will and testament, a living will and a power of attorney.
It is never to early to put these documents into place. Everyone who is 18 years or older should at least have a designated power of attorney and a medical directive, in case they are unable to manage their own affairs or make healthcare decisions.
Unfortunately, many people still think estate planning is only for wealthy people who want to pay less taxes. Tax planning can help lighten tax liability for some. However, there are far more important reasons to do estate planning.
The main reason for estate planning is to set down expectations and wishes, while you are alive and after you pass. An estate planning attorney will help review the benefits of having a power of attorney and a healthcare directive. They can help, if the situation occurs where your loved ones have to make decisions for you. The amount of time, expense and frustration of going through a guardianship process can be avoided, if these items are in place.
An estate planning attorney can also help you with completing beneficiary forms for non-probate assets, preparing a funeral plan, planning a personal property memorandum and discussing elder care and planning for incapacity.
Making decisions in advance regarding who will care for minor children, if young parents cannot and who will be the person’s executor and handle all the details of their estate, are all necessary.
Many couples choose joint ownership and consider that their estate planning. However, that’s not enough. What happens when the last “surviving” joint owner passes? There are many other issues that need to be dealt with and an estate plan can address them.
“Estate planning is not a topic that anyone really wants to think or talk about. In fact, many people might not even know what it means, so let’s start there.”
Estate planning is important for anyone over the age of 18. It does not matter if you have a small or large bank account, if you are a parent or not, or if you are old or young. A typical estate plan includes a will, durable power of attorney and advance health care directive, says the Pensacola News Journal in the article “Let’s Talk About: Estate Planning.”
What makes up an estate? Your home, cars, investments, bank accounts, retirement accounts and any belongings you own. Your will, which is also known as a “Last Will and Testament”, is a way to create a legally binding document with instructions as to who should get these possessions when you have died. Your will should also include directions about who will care for your children, if they are still minors under the legal age of adulthood.
If you die without a will, your family will have to deal with more than the grief of losing you. They’ll have to go through a legal quagmire to settle your estate. Family members often end up in expensive and emotionally devastating legal battles, when there is no clear will from the deceased.
A durable power of attorney lets you name someone to make important decisions on your behalf, if you are too sick to be able to speak for yourself. This is especially important for elderly people but can also come into play for younger adults.
The advance health care directive allows someone to make decisions about your health. We think about this as concerning older people. However, there are tragic instances where younger people also need to have this document. It also allows family members to access medical records and talk with physicians. Without it, doctors are not legally permitted to discuss care or decisions, even with a young adult’s own parents. It can also allow you to designate the treatment you would authorize (or not authorize) and when.
A living will may be available to focus on end-of-life care. Do you want to be placed on a respirator, if you cannot breathe for yourself? What about being an organ donor?
These are tough questions and the contemplation of one’s own mortality is never pleasant. However, by having these conversations with your family members and by making sure you have an estate plan in place prepared by an experienced estate planning attorney, you can spare your family, loved ones and yourself, a good deal of stress and worry.
Make an appointment to meet with an estate planning attorney. They’ll be able to create the documents you need to protect your family and ensure that your wishes are followed. There could be other planning tools, such as trusts that may be useful in your estate plan.