Estate Planning and Powers of Attorney

Powers of Attorney for medical and financial decisions are integral to any estate plan. Many clients will have times when they are unable, due to health or other medical reasons, to take care of their financial affairs or make their own medical decisions. In order to qualify the agent to serve, the powers of attorney require an opinion of a physician that the client is unable to make the decisions on their own. Physicians cannot render those opinions without a HIPAA release.

What is a “durable power of attorney”?

Depending upon your age you are more likely to be incapacitated or disabled than to die. All estate planning should include a financial power of attorney naming a trusted friend or family member to act on your behalf so that someone can pay your bills, and take care of your financial affairs if you are incapacitated or unable to manage your property. The individual to whom you assign this financial power is your “agent” or “attorney-in-fact,” and it should be someone you trust a great deal. The word “durable” means that your power of attorney remains valid even if you become incompetent. This is an important point because without a durable power of attorney for financial affairs there will have to be a court proceeding for a guardianship. The court may appoint someone you do not know and / or who has no “personal” interest in you. In addition, this is a costly and time-consuming process. Remember, your durable power of attorney is revocable at any time (as long as you are competent). If you do not revoke it, your durable power of attorney ends at your death.

What is a “medical power of attorney” and a “directive to physicians”?

A Medical Power of Attorney allows you to: (1) appoint a person also known as an “agent” who can make health care decisions for you in the event you are incapable of doing so. Some of these decisions your medical agent can make on your behalf include non-emergency surgery, assisted living and rehabilitation elections. If you take the opportunity to name this person before the Court does it on your behalf, you can give your “agent” some important guidance on health decisions before you are incapable of doing so. While it may seem as though you are placing a significant responsibility on the person you chose as your "agent," not having a health care directive can be much worse. Without your guidance, there may be dissention among your family members as to "who is in charge," and "what treatment you would want."

Can you avoid being the next the Terry Schiavo?

The Directive to Physicians is also known as a Living Will and now the occasionally the “Terry Schiavo” document. We also refer to it as the “Pull the plug” document. This is the document that allows you to decide what you would like to be done in the event that you are diagnosed with a terminal illness or have an irreversible condition and the physician feels there is no hope. Your directive guides your loved ones during these difficult times. Without your guidance and stated preferences in these situations, there may be dissension among your family members and you could be the next Terry Schiavo.

HIPAA

The HIPAA Authorization and Release and inclusion of HIPAA language in the Powers of Attorney is a release of medical information. This medical release will allow the physician to release your medical information and make the medical determination that you are or are not able to make financial or medical decisions on your own behalf.

Declaration of Guardian for Minor Children

This is one of the MOST important documents you can execute if you have minor children. This appointment allows you to decide who will raise your children in the event you and the biological parent are deceased. There have been cases where a child was placed in foster care when feuding family members could not agree to let the child live with one or the other family while the court made a decision in the “best interest” of the child. With proper planning you can separate the loving home and family who will raise your child from the financial component of the funds available to raise your child and also set some guidelines or criteria you would like the guardian to respect while raising your child. Frequently this is the stumbling block to coming to plan your estate. You cannot agree with your spouse who will be responsible for your child. But can you imagine a court choosing a guardian for your children. Or worse - imagine your relatives arguing in court over who gets your children—or having them agree but not on the people you would have chosen.

Here are some ideas to help you make your best choice.

Idea 1: Consider people outside the obvious choices. Make a list of all the people you know who you would trust to take care of your children. You don’t need to limit your list to close family members. Consider the ages of your children as well as the ages of the guardians.

Idea 2: Friends can make excellent guardians. Besides family, consider close friends, families your family is close to, friends you know from church, even teachers or child care providers with whom you and your children have a special relationship.

Idea 3: Don't stress about finances or the size of someone’s house. Don’t eliminate anyone from consideration because you don’t think they have the financial means to take care of your children. You can take care of the finances with what you leave. (That's what term life insurance is about!)

Idea. 4: Focus on who would love your children –through the teenage years. Consider whether each couple or person on your list would truly love your children if appointed their guardian. If they have children of their own, will your children be step-children? Or does the couple have enough love so that they will make your children feel loved no matter what?

Idea 5: Consider values and philosophies. Ask yourself which people share your values and philosophies with respect to things like your:

• religious beliefs
• moral values
• child-rearing philosophies
• educational values
• social values

Idea 6: Personality counts. Remember to consider whether your guardian has the personality traits that would work with your children’s personality.

Are they loving? Are they good role models?
Do they have the patience to take on parenting your children?
How affectionate are they?
If they're fairly young, how mature are they?

Idea 7: Consider practical factors. Their age and possible changes in their lives:

How would raising children fit into their lifestyle?
If they’re older, do they have the necessary health and stamina? Do they really want to be parents of a young child at their stage in life?
Do they have other children? How would your children get along with theirs?
How close do they live to other important people in your children’s lives (grandparents, friends)?
If a couple divorced, or one person died, would you be comfortable with either of them acting as the sole guardian? If not, you need to specify what you would want to happen.

Idea 8: Look for a good – but not a perfect – choice. No one on your list will seem perfect. But if you consider what matters to you most, you will probably be able to make some reasonable choices. Always, trust your instincts, if one couple or person seems to meet all of your criteria, but doesn’t feel right, don’t choose them.

Idea 9: Write down your reasons. If you’ve chosen friends over relatives, or a more distant relative over a closer one, be sure to explain your reasoning in writing.

Idea 10: Talk with everyone involved. If your children are old enough, talk with them to get their input as well. And be sure to consult with the people you'd like to choose, to ensure they're willing to be chosen and would feel comfortable acting as guardians.

Once you’ve made your choice, there are steps you can take to make sure the potential guardians you’ve chosen will have guidance and support they need. Here are a few ideas:

Create a set of guidelines to convey information about your children, your parenting values and your hopes and dreams for your children. (We can assist you in creating a “Guidelines for Guardians” handout.)

Set up a trust that will hold the assets you pass to your children, and instruct the trustee to provide necessary financial assistance to the guardians or specific instructions about special things you’d like the trust funds used for (for example, annual trips for your children to visit close friends and relatives, a particular sport or summer camp, putting in a swimming pool at the guardians’ house)