By RYAN C. DAVIS
What documents should I have in place before I die? There are four primary end-of-life documents the average person should have in place. The first and most recognized is a Last Will and Testament. Upon your death, this document will dictate who you want to settle your affairs after you die. That individual, known as the Personal Representative, will then follow the directions you've provided in your will for how your property and belongings should be distributed. Your will can also include a testamentary trust provision, which would dictate how any inheritance given to minor children upon your death should be managed on their behalf. Finally, a will can also contain guardianship language for minor children. While guardianship language in a will is not binding on the court, such language is usually followed if done correctly.
The next end-of-life document everyone should have in place is a Durable Power of Attorney. Powers of attorney allow the person listed as POA to make many different types of decisions on an individual's behalf, such as financial and real estate decisions. Typically, a general power of attorney no longer has effect upon an individual's incapacity, whether physical or mental. However, a durable power of attorney extends beyond that incapacity and remains in place until that individual's death. There are two primary types of durable POAs. The more traditional durable power of attorney is a "Springing Durable Power of Attorney." This means that this type of POA does not take affect until the individual has become incapacitated. The other type of durable POA is a "Durable Power of Attorney Effective Immediately." This means that the POA takes effect at the moment it was signed, and remains in effect through the incapacity and until the individual's death. There are advantages and disadvantages to both, so discuss your particular situation with your attorney.
The third document everyone should have prepared is an Advance Care Plan. This is also known as a "Living Will." Sometimes referred to as "pull-the-plug language," an Advance Care Plan will determine what decisions your healthcare providers will make about your medical care in the end stages of your life. There are a variety of scenarios this document contemplates, such as whether or not you want to receive life support or the assistance of a ventilator if you are unable to breath on your own. Every individual's decisions are unique and their choices often surprise their loved ones. One of the most loving things an individual can do for their loved ones is to not force them to make these decisions on their own. It's a relatively simple document, but one that carries significant weight.
The final document we recommend everyone have in place is the Appointment of a Healthcare Agent. While the Advance Care Plan above does incorporate the appointment of a healthcare agent, this document stands alone and allows another individual that you've named to make healthcare decisions on your behalf, in the event you're unable to do so on your own.
While none of these documents are particularly fun to think about, it's crucial that you get them in place before you need them. All too often, loved ones who have every intention of taking care of these needs pass away before ever doing so. In many cases, what they leave behind becomes a point of contention between family members who disagree about what should be done, rather than focusing on fond memories. In short, the time to take care of your end-of-life planning is now!
For more information about how to create a valid will, check out our additional Education Center post here.
