If you were too injured or ill to make your own decisions, who would do it? A stranger or a greedy relative picked by the state? Don’t wait; make your choices known.
Writing about incapacity is one thing. Experiencing it, even secondhand, is quite another.
My father suffered a devastating stroke while visiting his sister in Florida. During the final four months of his life, this once bright, capable man couldn’t decide anything more complicated than what color shirt to wear on a given day. Every other decision regarding his life — what he ate, how his bills were paid and how hard his caregivers should fight to keep him alive — had to be made by others.
Most Americans don’t have wills, but that’s not the crisis that many in the estate-planning industry would have you believe. With a few exceptions, which we’ll talk about below, most people’s quality of life won’t be much improved by a will.
That’s because your state already has a basic plan for distributing your stuff when you die. You’re dead, so what do you care? If who got your compact disc player or your comic book collection wasn’t important enough for you to bother with a will while you were alive, it certainly won’t matter to you after you’re gone.
Audit-proof your estate plan
What your state doesn’t have, though, is an efficient way to take care of you if you’re still breathing but unable to make your own decisions because of incapacitating illness or injury.
So if you get in a car accident and die, your estate will be distributed more or less efficiently. Get in a car accident and end up in a coma, and you could be in a world of hurt.
Your critical decisions made by a stranger?
Who would pay your bills or wrangle with insurance companies about your care? Who would decide whether to sue that driver who hit you — or to shut off the respirator that’s keeping you going?
The state will eventually find someone to fill these roles, after a potentially costly and time-consuming court hearing. But it might not be the person you would want. So at a time when you’re most vulnerable, life-and-death decisions could be made for you by a stranger — or an estranged, distant or greedy relative.
That’s why you need the following documents:
- A durable power of attorney for health care, which lets you identify who will make medical decisions for you. (This is also known as an advance directive or health care proxy.)
- A durable power of attorney for finances, which designates who’ll handle money decisions.
- A living will, which tells doctors exactly what kind of care you do and don’t want to receive if you’re terminally ill and incapacitated. (Some states, including Kentucky, Minnesota, Oklahoma, Oregon, South Carolina, Virginia and Wyoming, combine the living will and the durable power of attorney for health care in the same form.)
Fortunately, you can get these documents, plus a basic will, drawn up by an attorney for $300 to $500 in most areas. You can also buy software, such as Quicken WillMaker, for about $40 if you want to do the work yourself.
Fight over removing the feeding tubes
The point is, just do it. Strokes and accidents don’t happen just to other people.
If you need more convincing, consider the case of Robert Wendland, who was severely injured in a 1993 car crash at age 42, sparking a gut-wrenching court battle between his wife and his mother that ended up before the California Supreme Court.
Wendland was in a coma for 16 months before recovering what doctors called “minimal consciousness.” He could catch a ball and play with infant toys but couldn’t speak, eat, walk, recognize his family or comprehend a Saturday morning cartoon. Doctors said his condition was not terminal but would never improve.
Wendland’s wife, Rose, whom a court had appointed as his conservator, decided he wouldn’t have wanted to live as he was and asked doctors to remove his feeding and hydration tubes. Wendland’s mother, Florence, went to court to keep him alive. Eventually, California’s top court sided with the mother — a few weeks after Wendland died of pneumonia, after surviving on life support for eight years.
Although courts have allowed family members to disconnect life support from unconscious, terminally ill patients who didn’t express their wishes clearly, the California justices were reluctant to set such a precedent for “minimally conscious” patients.
A right to direct your own medical care
Had Wendland created durable powers of attorney or any other paperwork detailing how and whether he wanted life support to be used, the court battle may have been prevented, legal experts said. That’s because the U.S. Supreme Court has ruled that every individual has a right to direct his or her own medical care, even if loved ones disagree with those directions.
And let me tell you: Not having clear instructions, or having to fight with other family members over what you think a loved one would want, is pure anguish.
Of course, thinking about these issues is not fun, which is probably why most people avoid it. You have to ponder some of the grimmest circumstances imaginable. Do I want to be on a respirator if I’m conscious? If I’m unconscious? Do I want food and water withheld? How about pain medication?
There are so many issues to ponder that I highly recommend ordering copies of Your Way, a guide created by nonprofit group HELP, to aid you in deciding what you want and don’t want if you’re incapacitated.
Decisions about health care and money
You also have to figure out whom to name as your “attorney in fact,” or proxy, to help implement these decisions for you. Keep in mind:
- Two heads may be better than one. You don’t have to name the same person for both powers of attorney. In fact, many people find that the people they trust to make health care decisions are different from the ones they want handling their finances.
- Spouses are good, but have a backup. If you’re married or in a committed partnership, that person is a logical choice to fill both roles. But you’ll still need backups in case he or she is injured or killed in an accident with you, or is unable or unwilling to serve.
- Keep them close. For the health care directive, you’ll probably want people who are nearby or at least willing to travel to the hospital to be with you, perhaps for an extended time. The person handling your finances may be able to do so remotely, although you may still prefer to name someone who lives relatively close for convenience. In addition to paying your bills and handling insurance claims, the person handling your finances may also need to sell your home or make other complicated moves that require more proximity.
- Make sure they’re tough. With your health care proxy, especially, you need someone who’s forceful enough and committed enough to your stated wishes to advocate for you, regardless of what others (including family and medical professionals) might think.
You can change these documents at any time, as long as you’re still competent. You probably should review them about once a year to make sure you’re still comfortable with your decisions.
My father gave his wife his power of attorney for both finances and health care in his estate documents, but unfortunately, no backup people were identified. Frail and elderly, his wife was overwhelmed by the situation and the need to take over functions, from balancing the checkbook to making travel arrangements, that had always been his. After two months, her own ill health caused her to return to her native Australia.
Had my dad lasted much longer, we might have had to go through an expensive court process to identify a new guardian to make decisions for him. As it was, his wife finally made the choice to put him on palliative care, which managed his pain without continuing medical intervention to try to keep him alive. He died several days later.
My dad was quite fortunate in one sense: He had plenty of people who loved him. I’ve heard from other older folks who couldn’t think of anyone they trusted enough to give their power of attorney. If that’s the case for you or any older person you know, a family attorney or certified public accountant might serve, or a professional trustee might be an option. All major banks and trust companies have these professionals.
Once you make these arrangements for yourself, start bugging your parents to get their documents in order. If you’re not sure how to start that conversation, you can tell them about your own efforts to deal with incapacity or relate a horror story from a friend’s experience (ask around; you’ll find some). If nothing else, just e-mail them this column with a “let’s talk about this” note. (Look in the “article tools” box on the right-hand side of this page.)
Parents of minor children: This one’s for you
Now, back to the issue of wills. I was being a bit facetious above, since many people want more control over who gets their stuff than state law dictates. If you’re wealthy, estate-planning documents also can help you reduce potential taxes, which can give you peace of mind while you’re alive.
That said, there is one group of people who should absolutely, no question, have wills, and that’s parents of minor children. Even if you can’t agree on who gets the crystal, you need to agree on who would take care of your children in the event of your death. No matter how icky you feel about planning for your own demise, you owe it to your kids to spare them the potentially ugly and drawn-out custody battle that could ensue if you don’t make these decisions now. For more, read “Who will take care of your kids if you die?”
So go make that appointment with an attorney or buy the software — right now. A small investment of your time could spare you and your loved ones a lot of grief.