Advance DirectivesMar 25, 2021
What are your advance directives?
The COVID-19 pandemic is a real-time reminder that all adults need to have their affairs in order, just in case.
Making your wishes known
One of the greatest gifts that we can give to our loved ones is to clarify our health-care wishes in case there comes a time when we cannot make decisions for ourselves. How do you want things handled if you become incapacitated? Who decides what medical measures to take for you if you are unable to make them for yourself?
Making your wishes clear provides a roadmap for your loved ones to follow when the unexpected happens. Your clarity can also help avoid unnecessary family conflict during a difficult time. So how do you do it?
Documents known as advance directives allow you to make certain binding health care decisions in advance, while you have the requisite capacity to make those decisions, and/or appoint an agent to act on your behalf in the future if you are incapable of acting on your own behalf. Ideally, all adults prepare and execute these documents, with proper assistance to ensure the executed documents will be enforceable, and keep them among their important papers.
What specific documents do you need?
Every state has different advance directive laws and related requirements. If you move to a new state, out of an abundance of caution, you should complete legal documents that comply with the laws of that state. In New Hampshire, where I practice law, two principal documents constitute an individual’s advance directive package. RSA Chapter 137-J governs these documents and establishes the requirements and definitions associated with “written directives for medical decision making for adults without [the] capacity to make health care decisions.”
Living Will: This document is where you will indicate your preferences about end-of-life care. Do you wish to receive artificial life support if you are in a vegetative state? Through a living will you can make the express directive that no life-sustaining treatment be given when you have been diagnosed and certified in writing by the required combination of the attending physician, physician assistant, and/or advanced practice registered nurse to be near death or permanently unconscious, without hope of recovery from such condition and when you are unable to actively participate in the decision-making process.
Durable Power of Attorney for Health Care: This document allows you to name the person who will serve as your agent and have authority to make health care decisions and communicate treatment wishes on your behalf, and can also include specific directions or statements of intention that guide the designated agent on exercising the power to act as health care agent.
Do you have an up-to-date will?
Having an up-to-date will is also fundamental to having one’s “affairs in order.” If you wrote your will a while ago, this is an excellent time to review it. Ask yourself:
- Does my will reflect my current assets and my intended disposition for the same?
- My assets will flow to a trust when I die. Does my trust’s purpose still reflect my desires? Does the executor of my will — or do the trustee(s) I’ve named — have the ability to properly carry out their responsibilities and satisfy my wishes and directives?
- Is there sufficient liquidity in my anticipated estate to settle debts, meet tax obligations, and address any other financial obligations associated with my estate?
If you have any legal questions or concerns about your advance directives, want to prepare and execute such documents, or need help making changes to your will or other aspects of your estate plan — during a pandemic or anytime — please do not hesitate to contact us for assistance.
About the Author: Jonathan Eck