Love, Marriage, and the Documents That Bind
Photo courtesy of BigStock/twoellis
Paperwork doesn’t end with a couple’s wedding certificate. There are other important documents needed, as ballast, if you will, steadying the keel of the ship of marriage. Jerry Burg of Jerry A. Burg Law Offices and Susan King of Moss & Barnett recently reminded us of documents that married couples should put in place to make sure that medical and fiduciary concerns are protected.
What should you consider when crafting a health care directive (HCD)?
First, determine the degree of detail you want to include. A Health Care Directive can be succinct, appointing only an agent to make decisions when you’re incapacitated, or very detailed, stating specific levels of care you want or do not want.
Review your wishes concerning health care, life-saving procedures, and end-of-life care. Who will you trust to implement these wishes, and who might you wish to exclude from receiving medical information or participating in decisions? Do you choose to be an organ/tissue donor? How shall your remains be handled?
What pit-falls may occur when crafting a health care directive for a spouse? How avoid them?
Craft a health care directive with your spouse, not for them. We each have the right to appoint an agent to act in our stead to articulate our health-care wishes.
An HCD’s function is to express your wishes for medical care, and to state who is allowed to speak for you. Spouses need to discuss what they want done and by whom. If one spouse is uncomfortable having the other as agent, that needs to be written into the HCD.
The most common pitfall is the human tendency to avoid thinking or talking about the likelihood of a health crisis. The best safeguard is to state wishes frankly to each other.
What health care directive services does your firm offer?
I share my own HCD with clients as an example of how detailed the document can be. Mine includes what care I don’t want, why I’ve selected the named agent rather than other family members, and a specific assertion that my agent and I have discussed my values and the HCD’s contents. I also draft Power of Attorney documents and Wills, and represent individuals in probate court when needed.
Are there other aspects of HCDs you’d like to mention?
• Make sure your HCD is on file with your primary doctor and that it is in your medical record before any serious surgery/procedure.
• Keep an accessible copy at home in case of emergency.
• Keep contact information updated, with your agent and at all other locations.
• Make sure your agent knows they’ve been appointed.
• Make sure the agent thoroughly understands your wishes and will implement them when called upon, even if they are not how they themselves would decide.
• If your agent is not spouse or family, state that intention in the document.
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What are your suggestions for setting up an estate plan? What conflicts might you anticipate?
Estate planning can be overwhelming, and some individuals may either not execute these documents or execute them hastily, without considering possible conflicts. By not executing these documents—Last Will and Testament, Revocable Trust, Health Care Directive or Power of Attorney—you have no control of your medical and financial decision-making, both during your lifetime and after your death.
If you execute documents without addressing potential areas of conflict—family dynamics, your appointees’ differing religious and political views and lifestyle choices—the documents will serve little purpose.
Appoint people you know will make the medical and financial decisions you want. Express your wishes clearly, and make certain they will honor these wishes before you sign your documents. Potentially uncomfortable, these conversations are necessary. People often assume estate planning involves only the distribution of assets upon your death, unaware that one of the most crucial elements may be making medical and financial decisions during your lifetime, should you become incapacitated. If you have not executed documents, or if there is conflict among your appointees, your family can end up in court, a process not only time-intensive and expensive, but one that takes control from you and puts it into the hands of the court.
Distribution provisions are another potential source of conflict. If you specifically intend to omit an individual or treat individuals unequally, include a statement of intent. This statement provides context for your decisions, adds guidance for your beneficiaries, and deters challenges. Updating your documents regularly also helps forestall challenges. Making certain all intended beneficiaries have been included, none accidentally omitted, and that no documents have been signed in haste due to a medical emergency will insure your wishes are honored. Updating should include notifying your attorney of any changes in order to ensure that your documents always reflect your current wishes.
What services does your firm offer for estate and trust administration?
Moss and Barnett is a full-service law firm, representing a wide spectrum of clients in the probate and trust administration process, able to handle any litigation that might arise. We work with clients throughout the entire process: court appearance, tax return preparation, collaborating with other professional advisors throughout the administration process.
Are there other aspects of estate planning and administration you feel are important?
Estate planning is a fluid process; regular updates allow you to communicate your preferences at any stage of your life to family, friends, and fiduciaries. Establishing a trusting and open relationship with your attorney will make this process as seamless and painless as possible.
Susan A. King, Attorney/Shareholder
Moss & Barnett
150 S. 5th Street, Suite 1200