Getting Your Affairs in Order: Essential Legal Documents
by ACTEC Fellow Bernard A. Krooks
What legal documents should we have in place to prepare for an emergency, such as the Coronavirus pandemic? Learn more about a Durable Power of Attorney (aka Financial Power of Attorney) and Advanced Healthcare Directives – Healthcare Proxy, Living Will – from ACTEC Fellow Bernard A. Krooks, an Elder Law expert.
Hi everyone, I’m Bernie Krooks from New York, and I’m a Fellow of the American College of Trust and Estate Counsel. I’d like to talk to you today about “Getting your Affairs in Order: Essential Legal Documents,” what you need to have. With the recent pandemic and the Coronavirus, many of us have wondered what, if anything, could we have done in order to be better prepared? While we cannot control the next catastrophe or the next thing that might happen in our lives, we certainly can be better prepared to make sure that our loved ones are in a better position to take care of us, our finances, and our medical decisions if something were to happen to us.
Let’s start today by talking about what I think is the most essential legal document you can have, that’s called a Durable Power of Attorney. It’s durable because once you sign it, it survives your incapacity. So even though you become sick later and cannot make your own financial decisions, the people you appoint under the Power of Attorney will be able to step into your shoes and make those decisions for you. For example, if the stock market goes down and it becomes appropriate to buy or sell stocks, the person who you appoint as your Financial Power of Attorney would be able to make those decisions for you. If bills become due and you’re incapacitated, whether it’s from another pandemic or whether it’s just a personal situation, you had a stroke, or you became incapacitated in some other way, the person who you appoint as your Power of Attorney would be able to pay your bills and make sure all of your financial affairs continue to be in order so that there were no eviction notices from landlords, there was no shutting off of your electric, and there was no mismanagement of your finances.
Very important that when you do the Power of Attorney that you go to a competent estate planning professional to make sure that it survives your incapacity. The documents we’re talking about today are not documents that take effect when you die, like a Will. Many Americans, in fact over half of Americans, have a Will, but the Will only controls what happens to your assets when you pass away. The Durable Power of Attorney will control what happens to your affairs while you’re still alive and unable to manage them yourself. Now, you can appoint anybody who you want as the Power of Attorney- it can be a spouse; it can be adult children; it can be friends, acquaintances, anybody that you want as long as they’re an adult and willing and ready and able to serve. If you don’t have a proper Durable Power of Attorney in place and you do get sick or become incapacitated, it’s very possible that your family will have to go to court to pursue legal guardianship for you. And, in each state the laws are different, but it’s a very time-consuming and expensive process, it’s an invasion of privacy, and you may not even get the relief that you want. So, why not take the time to sign the Power of Attorney to make sure that the people you choose are going to be the people who are going to be in charge of your finances in case something happens to you?
Now, another document that’s also probably just as important is who’s going to make medical decisions for you in the event you’re incapacitated. These are called Advanced Healthcare Directives. The Power of Attorney relates to who’s going to make financial decisions for you, and the Advanced Healthcare Directives allows you to appoint somebody else to make medical decisions for you in the event you can no longer make them yourself. We’ve seen a lot of this recently with a lot of people in America becoming sick and being unable to communicate with their physicians and other healthcare providers. And families are at a loss as to what to do because they’ve got no guidance from parents or others before this happened. So, by having an Advanced Healthcare Directive – a Healthcare Proxy, a Living Will – which is a written expression of your wishes and desires in the event that you become incapacitated, in a vegetative state, or otherwise unable to communicate your wishes to a healthcare provider, others will be in a position to communicate these wishes for you.
Now, you may say, “how would they know what your wishes are?” and that would be a very good question. So, along with signing these documents, appointing somebody else to communicate to the healthcare providers what your wishes are, you should also have conversations with these people prior to becoming incapacitated so that they know what you would want. Many of us, if we were hooked up to ventilators or feeding machines or other kinds of tubes, wouldn’t want to be kept alive because we would feel there’s no quality of life, but when that happens to you, you’re in no position to communicate that to the physician. So, think about it now. Would you want to be kept alive like that? Would you want to be a burden to your family? Look, the reality is some people say, “yes, I want to be kept alive as long as modern medicine can keep me alive,” and that’s your personal decision. You have the right to make that, but you need to express it in the Advanced Healthcare Directives. You need to communicate it to your family before something happens to you because once something happens to you, you may no longer be in a position to communicate these wishes. Then, your family is at a loss as to what to do, and you may not get the type of care that you would have hoped for.
So, while we have no control going forward of whether or not there’s going to be a pandemic, whether or not there’s going to be a catastrophe in our lives, we do have control of how we prepare for this. If we are prepared, then we have a much greater chance for our wishes to be carried out. So, I like to say, “let’s hope for the best, but plan for the worst.” This has been Bernie Krooks, a Fellow of the American College of Trust and Estate Counsel, talking with you about getting your affairs in order and essential legal documents. Thank you.