Estate Planning is More than Planning for Death

Preparing for life

Estate planning is not just about preparing for death; it’s about preparing for events that happen during life, too. Bad and unexpected things, unfortunately, happen. That’s why the “will package” that I offer includes more than just a will; it also includes a Living Will, a Power of Attorney Designation, and a HIPAA Authorization.

Living Will

A Living Will allows you to express your wishes regarding medical care in the event that, say, you are in an accident and the use of life prolonging procedures on you would serve only to artificially prolong the dying process or if the accident puts you in a persistent vegetative state. Without a Living Will, your loved ones might be placed in a position to make incredibly difficult decisions. This can be an agonizing process even when your wishes are known. Imagine how tough it would be if your loved ones have no guidance.

Power of Attorney Designation

There may come a time when you are not able to supervise your affairs and/or make your medical decisions. That’s where the Power of Attorney Designation and Appointment of Health Care Representative comes in. In short, the Power of Attorney Designation gives someone else the power to do things with your property (like sell real estate that you own, carry on banking transactions in your name, etc.), and the Appointment of Health Care Representative gives someone else the power to make medical decisions for you (for example, whether you should undergo a potentially life-saving, but also potentially dangerous, surgery).

I usually draft these documents to take effect immediately, not delay the effect until you become incapacitated. This is for a couple of reasons. First, you might think, “But Joel, I don’t trust Bob to have power over my bank accounts right now.” My response is, “If you can’t trust Bob when you are not incapacitated, why would you trust Bob when you are incapacitated?” The fact of the matter is that whomever you designate as your Attorney in Fact (that is, someone who has a Power of Attorney over you) needs to be someone you trust to a deep degree.

Second, if these documents are drafted in such a way as to not take effect immediately—which I can do for you if you so desire—then there is a greater possibility of headaches when you become incapacitated. The bank might say to your Attorney in Fact, “Please provide us with three opinions from separate doctors regarding Jim’s incapacity.” And your Attorney in Fact would probably have to comply. When the documents are drafted such that they go into effect immediately, all that the Attorney in Fact has to present are the actual documents.

HIPAA Authorization

HIPAA stands for Health Insurance Portability and Accountability Act. The law was passed in 1996, and its main purpose is confidentiality and security of healthcare information. A HIPAA Authorization basically allows someone to have access to your healthcare information. You may think, “Why would I need this when I’ve already appointed a Health Care Representative?” The short answer is, “You may not need a HIPAA Authorization.” But such Authorizations can be useful. You may only want one person being the actual decision-maker (the Health Care Representative), but you might like multiple people being in the “information loop” (which is what the HIPAA Authorization allows). It can also make things easier for your Health Care Representative. Perhaps you make your spouse your Health Care Representative, but you authorize your three children to be in the information loop. This allows your children to, say, pick up an x-ray in South Bend, a prescription in Mishawaka, etc., which makes things a lot easier on your spouse.

What happens without these documents?

If you haven’t designated someone as your Attorney in Fact and/or Health Care Representative, and you happen to become incapacitated, moving forward can be much more difficult. In order to make decisions regarding your property or your person, a loved one may have to seek a guardianship. This involves court proceedings and court oversight. There is a time and a place for guardianships, and I can help should the need ever arise, but it’s usually a whole lot easier to have these documents in place.

Remember, estate planning isn’t just about death; it’s about life, too. I know thinking and planning for these sorts of things is generally not a fun thing to do, but it is the responsible thing to do. Let me help you. Call (574.514.3566) or email (joel@mishawakalaw.com) to set up an appointment today.

–Joel Dendiu

One comment to “Estate Planning is More than Planning for Death”
  1. Pingback: POD Accounts, Joint Accounts, & Taking Care of Your Executor | MISHAWAKA LAW

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