End-of-life planning requires certain documents to be signed and in place.
Few people enjoy sitting and pondering their own mortality (death), let alone morbidity (incapacity).
In addition to considering basic existential questions, many people also have practical inquiries about their personal responsibilities.
What will happen to my family?
Will my spouse and children have enough money for daily living?
Although estate planning does not answer all of these questions about death (and none of the questions about life after death), it can help address some concerns only you can address.
To protect everyone you love and everything you have, you first must overcome some discomfort around mortality and engage in end-of-life planning.
So, what legal documents are commonly used in end-of-life planning?
These legal documents may include some or all of the following, depending on your unique circumstances: a last will and testament, living trust, advance directive (i.e., a health care treatment directive and durable power of attorney for health care decisions), general durable power of attorney for financial matters, Do-Not-Resusitate (DNR) orders, HIPAA release forms, and anatomical gift declarations.
What does each of these accomplish?
Last Will and Testament
The last will and testament is the most widely recognized estate planning tool for a reason.
It is the foundational tool for instructing the probate court and your executor regarding your wishes for assets and love ones.
Without one, the state will govern what happens to your minor children and your assets.
What should you include in a last will?
A last will generally includes your property and assets, the beneficiaries who inherit (or are to be disinherited), guardians who rear minor children, and your executor.
What is the role of the executor?
The executor is responsible for presenting your last will to the probate court, paying debts, filing final taxes, and following your instructions in the last will for distributing assets.
Because of the significance of this responsibility, great care should be taken in choosing this individual.
A common recommendation is to review your last will every three to five years or after major life changes like marriage or divorce.
My recommendation, based on more than 30 years as an estate planning attorney?
Review your last will every two years or when major life changes occur, whether that is a self-review or with your estate planning attorney.
If you do not make updates to reflect changes in the law, your new circumstances, or your wishes, your end-of-life planning may be for naught.
Living trusts are typically used for asset management.
The legal arrangement of a living trust involves assets being transferred to trust ownership once the trust is created.
The immediate benefit is for you during your lifetime, especially if you are incapacitated.
In that event, your successor trust automatically steps in to replace you as trustee to provide continuous asset management.
When you die, the assets are then transferred or used to support your beneficiaries.
What are the benefits of a living trust?
Because assets are held by a trust and not by you as an individual, they are not included in your “probate” estate.
The transition of assets to beneficiaries occurs privately and smoothly without the involvement of a court.
Not all end-of-life planning is limited to the actual end-of-life timeframe.
Some planning involves preparing for actions well before approaching death.
This is the purpose of advance directives, with their two component parts: the health care treatment directive and the general durable power of attorney for health care decisions.
Both focus on helping you provide preferences regarding medical care if you cannot communicate such preferences yourself.
Why is making medical decisions in advance helpful?
Incapacity can often be the result of accident, illness, or aging.
Through the health care treatment directive component, you can specify the medical treatments you would like as well as those you do not want.
Because it addresses things like life support and resuscitation, this component is essential for end-of-life planning.
Through the general durable power of attorney for healthcare decisions, you can appoint trusted agents to make healthcare decisions in your stead.
General Durable Power of Attorney (GDPOA)
This document gives legal authority to a trusted attorney in fact (i.e., agent) to manage your finances and assets efficiently.
Should you be unable to pay your own bills or manage your finances yourself, your attorney in fact can take these actions on your behalf.
Note: your health care agent and financial attorney in fact need to be the same person.
Do Not Resuscitate (DNR) orders are critical to end-of-life planning.
These orders specifically address whether you would like to receive cardiopulmonary resuscitation (CPR) should you experience a cardiac or respiratory arrest.
Because a DNR results in a greater likelihood you will die as a result of one of these episodes, it is important to thoroughly understand these implications and discuss them with your family and physicians.
HIPAA Release Forms
Once a person becomes a legal adult (i.e., age 18 in Kansas and Missouri), their parents no longer have the right to access their medical records or speak with their physicians.
A HIPAA release form is necessary for your personal health information to be shared with designated individuals.
This ensures your loved ones and your health care agent will be able to make informed decisions founded on your medical history.
Because confidentiality of health information is essential, these documents are necessary to maintain privacy while providing health care agents with necessary access to information.
Organ Donor Designation
Deciding what happens to your body is also a component of end-of-life planning.
While you may have registered with the Johnson County DMV or your local Department of Motor Vehicles, you can also forgo or limit this option and make your wishes known as part of your advance directive.
With an advance directive, you may have greater control over the types of organs and tissues to be donated.
Our approach is to create a standalone anatomical gift declaration to supplement the advance directive with your specificity.
Discuss the process of organ donation with your experienced estate planning attorney to ensure your choice aligns with both your wishes and your values.
In summary, comprehensive end-of-life planning should all of the issues addressed by each of these commonly used legal documents.
As you consider this information and your own wishes and circumstances, meet with an experienced estate planning attorney to create legal documents in alignment with your end-of-life planning.
This post is for informational purposes only and does not provide legal advice. You should contact an attorney for advice concerning any particular issue or problem. Nothing herein creates an attorney-client relationship between the Law Offices of Kyle E. Krull, P.A., and the reader.