Dealing
with Disability: Must-Have Documents Prevent Chaos
by
Darlynn C. Morgan, Esq.
The good news is that we are living longer! The bad news is that, in any given year, we are much more likely to become incapacitated than to die. This reality makes planning for an incapacity a critical component of a good, comprehensive estate plan.
No Estate Plan
If you die without a formal estate plan
in place, California has a statutory scheme of who gets your estate and
how your assets are distributed. But
your assets may not go to whom you want, and your estate may end up paying
excessive fees and taxes.
Even worse, there are no laws in California that will provide an efficient way to take care of you if you are still breathing but unable to make your own decisions because of an incapacity.
Critical decisions made by a stranger?
If
you became incapacitated, who would be authorized to pay your bills
or wrangle with
insurance companies about your care?
Who would decide
whether to sue that driver who hit you—or shut off the respirator
that’s keeping you going? Your will becomes effective only
after you die. A living trust can help, but only if it contains comprehensive
disability provisions. When people bring me their trusts to review, many
of them do not contain much more than one sentence or a paragraph on
what happens in the event of a disability. This is woefully inadequate!
The state will eventually find someone to make these decisions, after a costly and time-consuming court hearing. But it might not be the person you would want. So at a time when you are most vulnerable, life-and-death decisions could be made for you by a stranger -- or a distant or greedy relative.
The Advance Directive for Health Care
California’s two-part “Advance Directive” includes
a Health Care Power of Attorney and a Directive to Physicians (Living
Will) in one document. The first section allows you to name loved ones
to serve as your health care representatives in case you become unable
to direct your own health care. You can give your representatives certain
powers to make life support decisions.
The second section allows you to leave specific health care and end-of-life instructions. You can elect to require your representatives and healthcare providers to follow these instructions, thus relieving them of the burden of making life support decisions.
The Advance Directive provides enough space for an opportunity to list detailed instructions for your care. Here you might write in that you authorize temporary life support until your family can gather to say good-bye, or that you wish certain religious traditions to be observed. Most people want to make sure they will die as painlessly as possible without tubes and respirators.
The Advance Directive is an essential part of your estate planning toolbox. It is critical that you have one, whether you have a formal estate plan or not.
Darlynn Morgan provides comprehensive estate planning services to individuals, families and business owners. She can be reached at 949 260.1400 or email Darlynn@MorganLawGroup.com.