End-of-Life Planning Documents You Should Complete Before You Die
by Kristal Borjas March 12, 2021 6 min read
Death is a natural progression of life. Although no one wants to face their mortality, there are important steps that you can take to make your end of life less taxing and worrisome on yourself and your loved ones.
The right end-of-life documents can ensure that your last wishes are followed and serve to take the stress and burden off your loved ones. This article will delve into the legal documents you should put in place.
Advance directives cover a wide range of end-of-life documents or directions. There are a few different types of directives to consider, although the most important are:
A living will is not a traditional will that divides all of your assets. Instead, this is a legal document that outlines your health care decisions if you’re unable to make them yourself. There are two main scenarios when a living will goes into effect:
- You're terminally ill
- You're permanently unconscious (coma)
Let's assume that you’re in a coma and sustained massive head trauma. Your living will outlines what medical treatment you would want to be performed and what you wouldn’t want to be performed.
A living will allows you to have full control over your medical treatment, including when to start and stop your treatment and what forms of treatment you find acceptable. You can deny the use of feeding tubes or life support, or you can choose to limit certain forms of treatment.
For a living will to be put into effect, there must be sufficient evidence to support that a person is officially unable to make their own medical decisions. State laws on the matter will vary due to different definitions of terminal illness, but two medical professionals will have to confirm that you’re no longer able to make your own medical decisions before a living will is executed.
A few of the most important aspects of a living will to consider are:
- Do not resuscitate (DNR) orders
- Organ donation
- Life support machine usage (ventilator, dialysis machine, feeding tube)
- Palliative care
It's your choice on the decisions to make when writing a living will. You have a right to take back a living will at any time or end it as you see fit. If you regain consciousness and the ability to make your own decisions, you can immediately begin making decisions outside of the living will’s scope.
When you create advance directives, it’s important to keep one or more of the following persons in the loop and discuss your wishes with them:
- Health care provider
- Agent or proxy that will be your alternative decision-maker
- Loved ones
It's important to discuss your wishes with these important individuals for two reasons: one, they’ll be in charge of making decisions for you, and two, they'll have peace of mind that they’re making the right decisions.
Note: If you live in between two states, speak to a health care provider and/or have a lawyer overlook your living will to ensure that it is valid in both (or more) states where you reside.
The Health Insurance Portability and Accountability Act (HIPAA) provides you with privacy over your medical history. A HIPPA release allows your loved ones or the person you designate to gain access to your medical information.
Why is this important?
The release can be given to doctors and allow your loved ones to be alerted to your current medical condition. Your loved ones that will need to make decisions on your behalf need access to this information so that they can follow your wishes.
Physician’s Order for Life-Sustaining Treatment (POLST)
POLST documents are vital when you’re nearing your end-of-life because they go into great detail about what types of medical treatments you would like performed and what you don’t want performed. A doctor will need to sign your POLST for it to be valid and legally binding.
Durable Power of Attorney for Healthcare
Also known as a health care proxy form or medical power of attorney, a durable power of attorney for healthcare is a robust document that allows someone else to make medical decisions on your behalf. Let's assume that you were in a car accident and were incapacitated.
The individual that you name in this power of attorney is able to make medical decisions for you when you cannot make them yourself.
Your ability to make your own decisions or not will be verified by a physician. The person that you designate to make these decisions cannot make them unless a doctor agrees that you’re unable to make decisions on your own.
What Happens If a Proxy Doesn’t Know Your Wishes?
In the ideal situation, you’ll go over your wishes in great detail with your proxy. The more this individual knows about your wishes, the better. But in circumstances where there are decisions not discussed, the person will need to make decisions based on their best judgement.
The decisions are usually what the person would think you want to be done.
Once you’re able to make your own decisions, the proxy’s right to make decisions on your behalf are fully revoked.
If you have children, you can also sign guardianship forms that will ensure that your children are cared for by someone you know and trust. You'll want to sit down with the person(s) to ensure that taking care of your children is something that they can handle financially, physically, and emotionally. Also, it’s important to know whether this person would even want to take guardianship of your children.
It's important to leave behind guardianship forms to ensure that the person you want to care for your children will care for them until they’re of legal age. If the children’s mother or father is still alive at the time of your death, in normal circumstances, guardianship would be given to him/her.
Of course, there are exceptions wherein the guardianship may not be given to the surviving parent.
In either case, guardianship forms can help make it clear as to who you wish to be your children’s guardian.
Last Will and Testament
A will is one of the most basic, important documents that you can leave behind. While a will can go into great detail on your last wishes, you should have all of the previous documents in place and not rely solely on a will.
An estate planning attorney can help you draft a will that outlines:
- Executor. The person that is responsible for making sure that your will is executed as per your wishes. The person can be a loved one, close friend or someone else. It's important to also name an alternative person in the event that the desired executor is unable to fulfill his or her duties for any reason.
- Assets. A list of all assets, including savings and bank accounts, family heirlooms, real estate, vehicles, cash – everything that you may want to leave to someone should be listed.
- Heirs. Your heirs should be listed along with which assets they will receive. It's important to assign assets to individuals to help prevent any quarrels.
These are your key items and purpose of your will. If you have a child, naming a guardian for them is also recommended. A will can also assign trusts to heirs, this can be setup with the help of an attorney.
A trust may or may not be required or even recommended, depending on your unique situation.
The right planning, which may also include gifting assets, can help lower the tax burden on your estate, too. If you’re a high net worth individual, advanced tax planning can help keep more money in your estate and less money in the hands of the state or government.
A last will and testament is one of the most important documents you can have drafted because it provides full clarity of what you may or may not want done with your estate. While no one wants their family to fight over assets when they die, it’s not uncommon for someone to question why another family member received an asset that they believed you wanted to leave to them.
DIY vs Working With an Estate Planning Attorney
A lot of people choose to write their last will and testament on their own. You'll save some money by choosing the DIY option, but you’ll also put your wishes at risk in the process. The biggest pro to writing a will, or any of these documents on your own, is that you’ll save money.
But there’s also the risk that you’ll overlook important details or may not fully understand the full extent of what any of the aforementioned documents can offer you and your estate.
It's almost always better to work with a legal professional in the state that you reside to help you draft all of these important documents. A lawyer will ensure that you’re using each document and directive to its fullest extent.
End-of-life planning documents should be drafted long before you’re sick or potentially unable to make your own decisions. These documents can provide you with peace of mind that your estate, and your final wishes, are handled in a manner that you deem appropriate.
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