Senior Associate
Most estate planning begins with a last will and testament, but this is only one of several instruments you will need. Two other essential documents are the living will and durable power of attorney. Both of these documents broadly concern situations in which a person is incapacitated. However, it’s important to understand the differences between these two so you can protect yourself and plan for the future, no matter what happens. The estate planning attorneys of LaFountain & Wollman P.C. explain what you need to know.
The Living Will: Detailing One’s Health Care Wishes
A living will is sometimes called an advance directive. Its purpose is to specify what a person wants regarding their medical treatment. As such, the document will go into detail about whether (and under what circumstances) a person wishes to either refuse or accept medical treatment in the event he or she becomes terminally ill, incapacitated, seriously injured, or otherwise unable to communicate. Despite its name, a living will is not a last will and testament and has nothing to do with dispensing one’s property after death.
The primary purpose of the living will is for an individual to let their family know what sorts of medical treatments they want in cases in which they cannot express those choices themselves. This effectively removes the guesswork and disagreements that might otherwise embroil families during a difficult time in which their loved one is nearing death or in dire condition.
It should be noted that a living will is not binding in Massachusetts as a legally enforceable estate planning document. However, a court can appoint a health care proxy (or an individual can designate such a person for themselves prior to becoming incapacitated) who can use the living will as a guide for making medical decisions for their loved one. A living will is also useful in case there is a dispute between family members and your health care proxy as to what your end of life wishes are.
The Durable Power of Attorney: Taking Care of Financial and Personal Needs
A durable power of attorney is also used in the event the person who executes the document (the principal) becomes incapacitated. However, that is basically where the similarities to the living will end. While the living will is concerned with medical matters, a durable power of attorney typically deals with financial and personal issues such as:
- Paying bills
- Managing bank accounts
- Handling property and investments
- Filing income tax returns
Under a durable power of attorney, the principal names an agent who takes care of the above and other matters should the principal later become incapacitated. It must be executed when the principal is still mentally competent. To be “durable” and therefore effective after incapacity begins, this document must be worded a certain way. The statute that governs these instruments includes the following suggested language:
- “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time”;’ or
- ”This power of attorney shall become effective upon the disability or incapacity of the principal”
If an individual fails to execute a durable power of attorney, a court will need to step in to appoint someone to handle the person’s affairs. This can go as far as establishing a guardian or conservator of the estate. However, this process is time-consuming and expensive, and is far more complicated than simply executing a durable power of attorney long before it is needed. Unlike the living will, a valid durable power of attorney is enforceable in Massachusetts.
Talk To Our Team About Your Estate Planning Needs
You would not want to become incapacitated without having the above two instruments in place. Nor would your family. Living wills and durable powers of attorney simply make it much easier for everyone to handle the most crucial medical, financial, and personal issues that may arise at a time when you cannot decide such matters for yourself. To get started with your comprehensive estate plan, schedule your consultation with LaFountain & Wollman P.C. today.