The Case For Advance Directives
Advance directives have become as common as wills in estate planning. Most estate planning packages today will include both general and healthcare durable powers of attorney and a living will. Are these documents necessary for most adults or merely exploitation of the public’s fear? If one weighs the minimal expense involved in executing these documents against the potential erosion of one’s assets and autonomy that can occur without them, they probably are the cheapest insurance policy on the market.
Why are advance directives so important? Consider the consequences of NOT having a power of attorney in the situation these documents address — your unexpected incapacitation, or inability to make health care or financial decisions for yourself. You or someone interested in your welfare would have to petition the court to have a guardian or conservator appointed to act on your behalf. The court is required by statute to gather evidence and make findings before making such an appointment, which may require the services of a court-appointed “visitor,” attorney, guardian ad litem, and physician. The costs of these services as well as court fees will be charged to you.
Using powers of attorney to protect your assets from these unnecessary costs is an inexpensive and simple solution. These instruments are specifically authorized by statute, and are not expensive to have prepared. A description of each type of advance directive follows:
General Durable Power of Attorney
A General Durable Power of Attorney authorizes someone to act on your behalf in financial matters. It may be made effective immediately, or may be written in such a fashion that it only becomes effective when you become incapacitated. The powers given to your agent may be narrow, such as the authority to act on your behalf at a real estate closing, or broad, including the authority to handle all of your financial affairs. It is important to appoint an agent you trust, and you should consider naming a substitute in case your first choice is unable to serve.
While we would all rather not think about the possibility of needing any of these documents, anyone concerned about asset preservation should seriously consider the protection these instruments can provide should such a tragedy arise. Your lawyer can provide you with standard forms for these documents, or, if you wish, they can be specifically tailored to fit your individual needs, belief systems, religious perspectives, or personal values. All of the advance directives discussed in this article are revocable documents. It is important to maintain control over the location of originals and copies in case you do wish to change your mind and revoke the powers. If you do revoke, destroy the documents or clearly mark them “VOID,” preferably in front of witnesses. Send written notice of the revocation to the agent named in the document and to any financial institution or third party who may have seen the document.
Durable Healthcare Power of Attorney
A Durable Healthcare Power of Attorney authorizes another person (agent) to make healthcare decisions for you (the principal) when you are unable to make or communicate such decisions yourself. Whereas a Living Will deals only with terminal illnesses and life-prolonging procedures, a Durable Healthcare Power of Attorney gives your agent the power to make or communicate healthcare decisions for you in circumstances not limited to life-and-death situations. However, if you have a terminal condition or illness, a Durable Health-care Power of Attorney may serve as a supplement to your Living Will, and allow your agent to reinforce your personal decisions as reflected in the Living Will.
The agent you designate may be given broad discretion, or your Durable Healthcare Power of Attorney can serve as a medical directive, in which you state your specific wishes regarding various types of medical treatment and request your agent to see that your wishes are carried out.
A Living Will, also called a “Declaration as to Medical and Surgical Treatment,” covers the limited situation where you have been in a coma for seven days and are thus unable to make or communicate decisions regarding your medical care and you are terminally ill. The Living Will allows you to maintain your personal autonomy and dignity in this tragic situation, by providing your advance directions to withhold or withdraw artificial life-sustaining procedures. Under current Colorado law, a Living Will only becomes effective when two physicians certify that a patient is terminally ill, and for a period of at least seven days, that patient has been unconscious, comatose, or otherwise unable to make or communicate decisions regarding care. When these preconditions are met, the patient has the right, through a previously executed Living Will, to direct that all life-sustaining procedures, including artificial nourishment, be withdrawn.
For questions about this article please contact Michael Smeenk.