Many families believe estate planning begins and ends with your will because it names your heirs, makes your wishes known, and can name a guardian for your children should they need one. I won’t argue — a will is one of the top three estate planning documents one should have. However, it doesn’t account for situations where you are unable to make decisions for yourself.
Incapacity can happen at any time because of an illness or accident. While you may not die, you may be in a debilitated state for an extended period. Quite often couples rely on each other to make health care decisions or to take care of the household finances should one spouse become incapacitated; however, it is important that you have the proper documentation. While you’re hospitalized, bills must be paid and sometimes decisions need to be made regarding your care. Simply saying, “My spouse knows what I want,” isn’t good enough. The law doesn’t know and neither do the hospitals.
In addition to a will, families also need a Financial Power of Attorney and an Advance Directive for Healthcare in place. These critical documents should be addressed by your estate planning attorney so they are in place before they are needed. Once you are deemed incapacitated by a physician or a court, it is often too late. Powers of Attorney must be executed while you have the capacity to do so. Without these documents, state laws could determine which family member has the power to make medical or financial decisions for you.
A Financial Power of Attorney authorizes someone to act on your behalf financially, should you be unable to do so. Most spouses own assets jointly, like bank accounts or property, so accessing financial resources may not be difficult. However, some states require both spouses to consent in writing before selling jointly owned property. Without a Financial Power of Attorney, your spouse may not be able to sell assets while you’re incapacitated. Furthermore, as you age, this document should be reviewed to ensure the agent you name is capable of handling the responsibility. Imagine the frustration for your family if something were to happen to you and your spouse was also under supervised care for his own physical or cognitive limitations. During your senior years, you may consider naming your child or a non-spouse relative or friend as an agent to handle the finances.
In Georgia, the Advance Directive for Healthcare allows you to designate a person to have the legal right to make health care decisions for you. This comprehensive document also allows you to express your medical wishes, such as your preference regarding organ donation, feeding tubes, artificial hydration, and/or certain life sustaining procedures. Even without this document, your spouse may be able to make medical decisions for you, but remember, once you’re incapacitated, you have no say regarding the decisions made by your spouse. You may have expressed to your family that you do not want feeding tubes, but without an Advance Directive for Healthcare, a distraught spouse could let doctors sustain you for months or years. This document should also be reviewed every few years to ensure your named agent is willing to shoulder the responsibility.
Having these legal documents in place can alleviate the burden for your family of wondering if they made the right call. I recommend having a qualified estate planning attorney draft these documents to ensure your full intent is accurately conveyed.