You will need to prepare legal documents to tell others what you want done during a health crisis or after death. Here is an overview of the important legal decisions to consider and how to find help during the process.
Your legal decisions could affect the futures of your loved ones. Work with qualified professionals, such as an attorney who specializes in that area, to prepare these documents.
Important legal decisions:
- Advance health directives.
- Power of attorney for financial decisions.
- Will (also called last will and testament).
- Guardianship for children.
Talk With Loved Ones About Important Legal Matters
- Discuss what is important to you.
- Tell your loved ones what you want done.
- Ask your loved ones how they feel about important matters.
Preparing Advance Health Directives
Advance health directives inform your loved ones and the health care team of your choices for medical care. They provide direction about whether to start or stop certain types of treatment. Each state has its own laws recognizing advance health directives.
Advance health directives act as a contract between you and your health care team. The document must be signed and witnessed. Ask your provider if he or she will honor your instructions. If not, you may want to transfer your case to the care of another health care provider who will. Without health directives, providers generally talk with family members about options. They then use their best judgment to make decisions about medical care.
Here are the two most common types of advance health directives:
Durable Power of Attorney for Health Care: A durable power of attorney for health care is the best way to make certain that you get the type of medical care you want. This type of legal document appoints another adult to speak for you. He or she will act as your agent or proxy. The document allows you to transfer your legal right to make decisions about health care to your agent. This power only applies when you do not have the ability to make decisions for yourself.
Most people choose a loved one or close friend to be their agent. It is important that your agent knows you well enough to make decisions that are in line with your wishes. Your agent's job is to ensure that your wishes are carried out.
Living Will: A living will tells your family and health care provider what you prefer in terms of medical treatment and care. It states what you want or do not want done to extend your life. For example, you might state that you do not want artificial feeding. A living will is not as effective as the durable power of attorney. A living will only states your health care preferences. The health care provider and family might make different decisions during a medical crisis. They can decide based on their own medical or personal values.
Preparing a Will
A will is very important—no matter what your health, wealth or family status. It tells others how to handle financial and other legal matters after you die. Your will tells what valuables or assets are to be given to others. It also names the people you want to receive those assets (the beneficiaries). Your will can be rewritten as often as needed if your wishes or other things change. The laws in your state will determine how your assets are distributed if you do not have a will.
Before you start preparing your will, talk with loved ones and friends who will be affected. Discuss what is important to you. Tell them what you want to be done with your assets. This will help them in the future. It is also helpful to make certain that you know all the facts about the assets of other family members. For example, if you are married, you need to know specific information about the income, benefits, investments and debts of your spouse.
A will must be legally executed to be valid. This means it must meet certain conditions set by your state. It is best to prepare a will before a serious health crisis occurs. If a person is very ill or injured when the will is prepared, others could argue that medications or illness affected the ability to make decisions. This could result in a legal challenge to the will later.
Use an Attorney to Create Your Will
It is often recommended that an attorney be used to create a will. An attorney who specializes in estate planning will know what state laws require. Tax attorneys, accountants and certified financial planners can also help with estate planning.
An attorney is helpful for:
- Guardianship arrangements.
- Gifts for minor children.
- Gifts of certain assets to specific individuals.
- Estates of large value.
- Real estate in a state other than you home state.
- The “forgiving” (or cancellation) of debts others owe you.
- A spouse who may need nursing home care.
- A spouse who is not a citizen of this country.
- A major donation (or gift) within the past three years.
- A plan to not include a living spouse or child under your will.
- Plans for individuals who are disabled or legally unable to care for themselves.
If mistakes are made in preparing the will, there can be delays and expenses charged to the estate. This could mean that the will must go through probate. Probate is the legal process in your state that proves a will is valid. This process takes a long time and could cost the estate a lot of money.
You can legally write your own will. However, you need to know the legal requirements of your state. Create your own will only if family issues, finances and legal matters are not complicated. Some people use forms that are available in a “will kit.” This can be purchased through office supply stores, bookstores or online.
If a family member challenges your will, it could be declared as not valid. If this happens, the state might not follow your intentions. Property could then be distributed according to state probate laws. A will that is prepared by an attorney is more likely to withstand legal challenges.
Consider writing your own will only if you:
- Have limited assets registered in your name.
- Want to leave your assets to only one or two people.
- Have no major tax concerns to consider.
If you write your own will, you may want to consider asking an attorney to review the document. He or she can oversee the execution of the will. The fee for this legal service should be less than if the attorney does all of the work.
Guardianship for Children
No parent wants to think that there could be such a time, but all parents should consider this possibility. Parents can name a legal guardian to care for their minor age child. A legal guardian takes care of the child and manages the estate during times when the parents cannot.
There is peace of mind in knowing that your child will be well cared for if you are ever unable to do so. Preparing for this possibility is very important. Cancer or treatment might require hospital stays, out-of-town medical visits or other time away from your child. A legal guardian makes decisions about physical, educational and health matters.
There are different types of guardianship arrangements. Work with an attorney who specializes in this area. Guardianships must be set up according to the laws of the state in which you and your child live. If you live in more than one state or if the guardian you choose lives in another state, the guardianship must follow the laws of those states as well.
Planning allows you to name a guardian who respects your values and ideals. Make plans for the future care of your child. If you do not, the state court system could make decisions for your child without your input.
All parents should name a legal guardian for their child. The process can be an emotional experience. It can be helpful to talk with loved ones, friends or others who have already done this. A nonprofit cancer organization can also provide support and help you get started.
Power of Attorney for Financial Decisions
A power of attorney can be set up for financial decisions. This legal document gives authority to a person you select (your agent). He or she can then pay bills and make financial decisions if you cannot do so. It is fairly simple and does not cost a lot to set up this legal process.