You might be doing everything you can do to help your aging parents. Often these decisions fall to one child, while other siblings are out of the loop for reasons of distance or other responsibilities.
In some families you try to work by consensus, and at the same time, respect your parents’ wishes. This can be difficult when decisions need to be made quickly.
Key Question: Who is in Charge?
For example: Dad enters a hospital in need of immediate hip surgery. Unfortunately, he has an allergic reaction to the medications. He is hallucinating and incoherent. The doctors need to change his treatment, but they aren’t sure who to turn to in his family for a final decision.
Dad’s four adult children argue over what they think should happen. Old sibling rivalries surface at a time when Dad needs his family to unify.
How can you plan for medical crises in advance, to prevent a similar scenario?
A Family is not a Democracy
In most families, managing by consensus just doesn’t work. In a crisis, it takes too long to get a consensus. Relatives that need to be present can’t be there or can’t be reached on the phone. Or worse, everyone disagrees while the consensus builder is trying to get unanimous consent.
Whether the issue is health or money, consensus building usually won’t work in a time of crisis.
What are the Tools?
What you need to avoid these situations is written instructions, and choice for leadership. We recommend that you use several tools.
Everyone – and I stress everyone – needs a Durable Financial Power of Attorney. This provides all types of financial authority to allow a chosen family member to make financial decisions for you if you are incapacitated.
The Health Care Power of Attorney and an Advanced Healthcare Directive (Living Will) vary from state to state, but the concept is the same. Someone is charged with making all health care decisions for you, including the decision to terminate artificial life support.
These written instructions are critical for families, and you can help to put them in place through proper estate planning documents.
Five Questions
We ask the following questions to new clients who wish to change their existing Health Care Power of Attorney:
- When was the document last updated?
- Did an estate planning attorney draft it? Any “lawyer-in-a-box” forms which were downloaded from online sources might not be state specific and could be invalid.
- Is the person originally named as Health Care Power of Attorney still the same person you want in charge of medical decisions? Why or why not?
- Is this same person also named as the Durable Financial Power of Attorney? Ultimately, that’s up to you, but we recommend that you consider naming different people for each role, as the duties of these positions are quite different.
- Finally, was the existing Health Care Power of Attorney document integrated into a full estate plan?
Recommendation
A Revocable Trust is an indispensable estate planning tool for incapacity planning. It allows you to think through many of the financial instructions on how you want your financial affairs to be managed if you are ever incapacitated. When you create a revocable trust and name a “successor trustee” in the event of your incapacity, then you avoid having a court appoint someone to manage your assets. This will reduce costs, keep the contents of the trust private, and reduce stress on everyone.
Your estate planning tools should include a Trust, a Last Will and Testament, a Durable Financial Power of Attorney, a Health Care Power of Attorney, an Advanced Healthcare Directive (Living Will), a letter of instruction for your wishes regarding disbursement of personal belongings, and instructions for burial or cremation.
Not having an updated, lawyer-reviewed, and thoroughly integrated estate plan means your wishes could be challenged in court, and your general welfare could be left up to a guardianship judge. If changes to your plan are made while you are ill or elderly, then establishing competency is also an important step to avoiding a court challenge. Talk to your attorney if you need to establish competency.
When a crisis occurs, at least it will be clear who is in charge of what, what decisions were made by you and put into a written plan, and what tools are in place to ensure that you are protected and your wishes are carried out.