Bustos Law Firm

End of life planning is more than a will . . .

In Estate Planning on July 26, 2018 at 8:55 AM

Have you considered how you will exit this life? Most of us don’t want to think about dying, but thinking about it is an important part of living. While everyone should have a will, equally important documents include powers of attorney, both property and medical, and a directive to physicians (living will). Other documents that are helpful include Designation of Guardian in the Event of Later Incapacity or Need of Guardian, Declaration for Mental Health Treatment, and Appointment for Disposition of Remains.

Why are these documents important? If you become incapacitated, either through age, disease, or accident, you may no longer be legally competent to enter into agreements for the handling of property, accounts, filing tax returns, handling bank accounts, and meeting daily living requirements. A durable power of attorney would allow a trusted person to handle these matters on your behalf when you cannot. In the event of mental incapacity or unconsciousness, it might be necessary for your loved ones to seek a guardianship over you and your estate, either temporary or permanent, in order to handle your property, pay bills, etc.

In the event you no longer have mental capacity or you are unconscious, someone needs to be able to make medical decisions on your behalf. Without a medical power of attorney, it might be necessary for your loved ones to seek a guardianship over you, either temporary or permanent, in order to make necessary medical decisions. While someone who is the next of kin may be allowed to assist your doctors with your medical care, in the event your family members have equal status under the law and cannot agree on your care, court intervention may be necessary. Designating a person to act on your behalf could save unnecessary family conflict.

A directive to physicians (aka “living will”) will make your desires known in the event you are facing a terminal condition from which you are expected to die within six months, or if you have an irreversible condition and cannot take care of your or make your own decisions. With the directive to physicians you can make the decision whether to receive life support that could prolong your life, or determine that you do not want to receive life support saving your family the necessity of making that very difficult decision for you, again saving unnecessary family conflict in the event the family cannot agree on the best course of action.

The declaration of guardian in the event of later incapacity or need allows you to decide who you would want to take care of your person and your assets in the event you become mentally unable to see to your everyday living needs whether for your person or your estate. The person you designate to act as guardian of your person may be different from the person you designate to act as guardian of your assets/estate. While this document tells a court who you want to act as your guardian, the court is not required to follow your desires, but must have very strong reasons for not appointing the person or persons you designate in your declaration of guardian. You can also expressly disqualify persons from acting as guardian of your person or your estate. The court must comply with this election. Again, this is another action that can be taken by you during the good times to help prevent extra stress and strain if your health takes a turn for the worse.

A declaration for mental health treatment allows you to make known your desires with regard to any mental health treatment that you may need in the event you are unable to understand the nature and consequences of a proposed treatment at some point in the future. In this context Mental Health Treatment includes electroconvulsive treatment, treatment of mental illness with psychoactive medication, and preferences regarding emergency mental health treatment. A declaration for mental health treatment expires on the third anniversary of the date of execution, or when revoked.

Especially important for persons with no next of kin, an appointment of disposition of remains may be the difference between languishing in the county morgue and having your remains disposed of in the manner you desire. If a person has no next of kin or if no next of kin comes forward, no one has the right to dispose of your remains except for local authorities. An appointment of disposition of remains allows you to appoint one or more persons who have authority to take custody of your remains upon your death. Upon execution of the appointment, that person must promise to pay all charges associated with the disposition of your remains. If you have made no other arrangement for disposition of your remains, it may still be that the person you appoint may not be in a position to follow through with your wishes, but without the appointment, no one can take possession of your remains without seeking an administration of your estate, which may be expensive and time-consuming process.

Persons without next of kin need to be especially mindful of what will happen to their remains and their property after they die. Even though the trappings of life are no longer a concern for you, friends or others you leave behind are left without the ability to act. Be mindful of those you leave behind and make necessary arrangements on your own behalf with regard to disposition of your body and your assets, including automobiles, personal property, bank accounts, etc.

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