© 2020 by Michael A. Babiarz
What is the most popular estate plan in America? Answer: nothing! The most recent statistic that I came across from several sources and which is basically unchanged over the thirty plus years I spent in private practice as an attorney and thereafter, is that seventy percent of all Americans do not even have a simple will.
The reason for this is a basic, primal human emotion: fear. To craft an effective estate plan, one needs to contemplate unpleasant possibilities. Fear of death and of incapacity – concerns that must be addressed in estate planning – rank high on the list of things we all dread.
Ironically enough, fear of public speaking usually tops most lists of things that frighten us. This leads to an old joke: at a funeral, most of us would rather be the “guest of honor” than the giver of a eulogy.
This fear also presents in almost a superstitious way. We believe that if we wash the car it’s going to rain. So maybe if we sign the will then something awful must happen? I represented well over twenty-five hundred clients in my years as an estate planner. None that I can recall dropped dead immediately after signing their documents and leaving my office.
One of the issues that MUST be included in any estate plan is a means by which medical decisions can be made on your behalf if you are ever rendered incapable of communicating your wishes. This incapacity can be temporary – a car accident that leaves you unconscious for a period of time – or permanent, where the ravages of dementia may one day leave you incompetent.
In most states, legislatures have passed laws permitting you to create and execute a document appointing another to make medical decisions for you. This document may be called a healthcare power of attorney, medical power of attorney, or healthcare surrogate form, but the result is essentially the same. You name someone, typically a close family member such as a spouse or child, with backups in case your first choice isn’t willing or able to act, to make medical decisions and interact with your attending physician and his or her team in the event that you are no longer able to communicate on your own behalf.
This document is relatively simple and straightforward. It typically also includes provisions for whether or not you want life-sustaining care continued if you are terminally or hopelessly ill, language to allow your healthcare agent to access your medical records, and even specific instructions concerning disposition of your remains – e.g. burial, cremation, etc.
In most states, the legislatures have provided a suggested form that you can use. Although most laws allow you to deviate from the statutory format, experts encourage you to utilize your state’s form and modify it as needed. That way, when the document is presented to a hospital, doctor, or other medical provider, those who are caring for you will feel comfortable with the document as it will be one they easily recognize. The last thing your family wants if you need medical care is for the hospital staff person to send your healthcare power of attorney to corporate counsel for review before your wishes can be implemented.
Although the fear of this situation is a realistic one, remember that creation of this document eases your family’s mayhem in the event you are ever in a situation where medical care is required and you can’t consent. The document benefits you, but it also benefits your family by relieving their burden.
A final cheerful statistic with which I leave you: there is an eighty percent chance that you will be incompetent, either temporary or permanent, at some point in your lifetime. One simple step – creating a healthcare power of attorney – can be an important tool in your estate planning arsenal. Conquer the fear of creating a plan and you may actually ease your mind and the minds of your family.