By Tony Kendzior, CLU, ChFC \ April 27, 2022
Some of us are naturally organized and some of us not so much. From that I conclude that regardless of your ability to keep yourself organized, it’s very important that as we age, we have certain documents and a place to keep them. Be aware that yes, we’re living in a digital world, but our system of laws usually demands actual paper documents to work with.
Here’s my frame of reference for all of this. My parents are long gone, starting with my father some 40 years ago. When he passed, my mother already had early symptoms of Alzheimer’s and to a large extent had no clue where critical documents were kept, much less what they were.
Fortunately, I was then a practicing financial planner, and someone had persuaded me to have them give a Durable Power of Attorney, signed by each of them. It named me, their only child, and gave me the authority to ask questions, to get relevant answers, and to make decisions on their behalf.
Too many people die unexpectedly, so whether you’re in your 30’s or 80’s, or somewhere in between, the list of documents below should be on your radar. Also remember that to be effective, some of them demand the signature of witnesses to your signature under state law.
Part One here identifies what I consider the most important documents. Having them on file somewhere gives yourself comfort, and comfort to those who care about you. That’s because others may need the ability to make decisions if you’re no longer able to. It might be because you’ve become very ill, or goofy or have already moved on to another world. Part Two will appear next week.
When you do a google search for helpful documents, you’ll find hundreds of ideas, from legal to healthcare, and for every other reason imaginable. Next week in Part Two you’ll find additional ideas which will hopefully fill in whatever blanks apply to you. You’ll need to either create or update them to help those who care about you so they can assist before the you-know-what hits the fan.
Here’s the list with a short description of each. Some are more obvious than others. Please don’t simply ignore any of them. It’s very important to talk it over with those likely to be affected by your future inability to act on your own behalf.
A Power of Attorney (POA)
There are four basic types of powers of attorney: Limited, General, Durable and Springing. For our purposes I want you to focus on Durable POAs since it allows those given the power the ability to act on your behalf if and when you’re unable to act for yourself. There may be more here than you need but is included to help you decide what’s in your best interest.
Here’s a little more about each of them.
Limited POA. A limited POA gives someone else the power to act in your stead for a very limited purpose. It usually ends at a time specified in the document.
General POA. A general POA is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself. But a general power of attorney ends on your death or incapacitation unless you rescind it before then.
Durable POA. A durable POA can be general or limited in scope, but it remains in effect after you become incapacitated. Without a durable power of attorney, if you become incapacitated, no one can represent you unless a court appoints a conservator or guardian. A durable power of attorney will remain in effect until your death unless you rescind it, assuming you’re not incapacitated.
Springing POA. Like a durable POA, a springing power of attorney can allow your attorney-in-fact to act for you if you become incapacitated, but it does not become effective until you are incapacitated. If you are using a springing power of attorney, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
Regardless of what type of power of attorney you use, it is important to think carefully about who will have power of attorney. Your attorney-in-fact will have a lot of control over your healthcare and finances, and it is crucial that you trust him or her completely. The next one is more specific and depending on your circumstances may be helpful in addition to a Financial POA. Just remember I’m not an attorney so you should consult with one before making a lasting decision.
Financial Power of Attorney
In the State of Florida where I live, a General POA allows a designated agent to handle the financial matters of someone else, known as a principal, should the principal become incapacitated. The person or agent selected should be a trusted individual who will act for the principal while they are alive and able to think competently. It becomes void upon incapacitation. This is when it might be prudent, assuming the agent is a trusted family member, to instead use a Durable POA.
Durable Health Care Power of Attorney
No one plans to become sick, but people of all ages can become too ill to make their own medical and health care decisions. The health care POA allows you to choose whom you’d like to have as your representative if you are unable to communicate or make your own medical decisions. Clearly, you need this person to be a responsible one, someone who will honor your wishes as best as circumstances allow.
Don’t confuse this document with a living will. The living will is applicable only when a person is determined to be permanently unconscious, terminally ill, or seriously incapacitated by another similar reason as provided for by laws in your state. If you are temporarily unconscious or otherwise temporarily unable to communicate, then the person you designate in your living will cannot make health care decisions for you. For that, you need a health care or medical power of attorney.
A living will is an advance directive that allows people to share their wishes for medical care when entering the end stage of their lives. This allows doctors and hospitals to know how to proceed after someone can no longer communicate his or her wishes. This document also helps family members to be clear about what, exactly, a loved one’s end-of-life wishes are. Without this document, doctors and family members are left in the precarious position of needing to guess preferences. When people disagree, the situation can get contentious, even to the point of becoming a matter for courts to decide.
Many people desire to have palliative care, which means that if they are in pain, doctors can take measures to reduce and manage symptoms and suffering. A bigger question when creating a living will, typically, is whether or not you want extraordinary measures taken. For example, if doctors determine you need CPR to be resuscitated, do you want that procedure to be performed?
Do Not Resuscitate Order (DNRO)
This is probably thought of as an extension of a Durable Health Care Power of Attorney and/or Living Will. However, here in Florida there is a specific statute that deals with this issue. Furthermore, the actual form as proscribed must be printed on yellow paper. Go to this link to find it: https://tinyurl.com/2p985zbj
Last Will and Testament
Be sure to draft a will that specifies who should inherit your possessions, including your money, your home/other properties, furniture, jewelry and other possessions or assets. People who inherit are considered your beneficiaries, and you need to be very specific about what goes to whom. You will also need to carefully consider your choice of executor, the person you want and need to carry out the specifics of your will.
You can choose to hire an attorney or a bank to perform these duties for a fee. If you are instead selecting a family member or friend, be clear about whether or not he or she will be compensated and, if so, how. Your will needs to be witnessed, typically by two people, neither of whom have an interest in your assets. Keep your will in a place that’s safe, but easily accessible by those who will need to have the document quickly after your death. Just know that if you have a significant number of assets, it’s possible that with just a living will, it might cause your family to spend lots of money in a probate proceeding.
As few as 44 percent of Americans have a will, and just 68 percent of seniors older than 65 have a will, a Gallup poll found. Whether it’s because of a lack of time, lack of money, or the belief that things will sort themselves out, a huge number of older Americans have not taken any legal planning steps that are needed. In fact, many haven’t even completed the first step: gather important legal documents.
Organizing estate planning, medical, and financial legal documents is an easy way to ensure that you or your loved one’s wishes are honored, and that surviving family members won’t be left with large legal bills and disputes to untangle.
Please know the writer, Tony Kendzior, is NOT AN ATTORNEY. You should always consult with someone who is before you make any irrevocable decisions that have legal implications.