“That will never happen to me.”

by

Nicholas E. Mayo

As we watch the local news or read the newspaper, we learn about families destroyed by tragedy. We sympathize with these families but think, “That will never happen to me.” This seems especially true for young people, like myself, who are just beginning their careers, starting new families and generally believe they are invincible.

On the advice of others, we usually acknowledge our mortality to some extent by purchasing life and disability insurance and engaging financial planners to assist in providing for our families in the event of the “worst-case scenario.” However, insurance and financial planning are only two pieces of the puzzle. The completion of a Will, a Durable Power of Attorney, a Medical Power of Attorney and a Living Will provide you with the other pieces necessary to plan for the future and the possibility of the “worst-case scenario.”

When people die without a Will, referred to as dying “intestate,” the disposition of their assets is left entirely up to the laws of the state in which they reside. These state laws provide for the passage of property but probably will not align with your wishes and may not provide the level of security that you want to give your family. A Will may also be used to make general gifts of property, appoint a legal guardian for your children, make specific gifts to individuals or charities, create trusts to help your children manage the funds they receive or even to create special needs trusts that allow disabled children to continue receiving aid from other sources like Medicare. Most importantly, a Will can minimize disputes over contested property and provide you with the peace of mind that comes from knowing your wishes will be followed after your death. 

While a Will documents the decisions you have made for events after your death, a Power of Attorney allows you to appoint another person to make decisions on your behalf while you are still alive. Two general types of Power of Attorney are the Durable Power of Attorney and the Medical Power of Attorney. A Durable Power of Attorney allows you to appoint another person to make financial decisions on your behalf. The term “durable” derives from the fact that the power of attorney declaration is still valid even if you are judged incompetent or become incapacitated. On the other hand, you can also create a “springing” Durable Power of Attorney that only becomes valid when you are judged incompetent or become incapacitated.

A Medical Power of Attorney is a little different as it allows you to appoint another individual to make health care decisions on your behalf. The most common use of the Medical Power of Attorney is appointing a representative to make decisions about life-sustaining treatment if you become unable to do so. The Medical Power of Attorney also gives your representative the authority to make other decisions, like giving or withholding consent to treatment, if you become incapacitated.

A Living Will allows you to make decisions regarding life-sustaining treatment today and put those decisions in writing. As long as the hospital and your doctor are  aware of the existence of the Living Will, they are bound to abide by your wishes. Frequently, a combination Living Will/Medical Power of Attorney is used to allow you to document your wishes regarding life-sustaining treatment, while also appointing a representative to enforce those decisions and make any other necessary health care decisions.

We understand that confronting the issues raised by these documents can be difficult and that it is easy to put the decisions off to another day. However, one of the greatest gifts you can leave your family in the event of a terrible tragedy is a simple, straight-forward declaration of your wishes. The best way to make that declaration is through the creation of the documents listed above.

While you can technically create any of the above documents without consulting an attorney, they are important legal documents. Therefore, we recommend that you consult an attorney to assure the documents accurately reflect your wishes and are legally enforceable.