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Being Proactive about End-of-Life Issues

Jun 01, 2015 01:53PM ● Published by Cate Reynolds

By Lisa A. Lewis

If the thought of putting your legal affairs in order fills you with dread, you’re not alone. Obviously, no one likes to think about death, and preparing legal documents, such as a will or a living will, forces you to contemplate your mortality, which may fill you with apprehension. However, this type of planning shouldn’t be viewed as morbid thinking. On the contrary, it’s actually practical and can even be empowering.

Planning for end-of-life legal concerns is a fairly straightforward process that involves preparing a will, which deals with financial matters, and an advance directive, which deals with health care issues during incapacity caused by injury or illness. Completing these documents allows you to make your own decisions. You can also express your wishes to your family, which helps eliminate confusion. Most important, taking control of end-of-life issues gives you peace of mind because you know your wishes will be honored.

Preparing a Will

Obviously, you know that a will allows you to determine how you want to distribute your assets after your death. What you may not know, however, is why a will is such an important document. The law of estates and trusts is built on the foundation of freedom of disposition, which means you can decide how you want to distribute your property and to whom. But according to state law, if you don’t have a will or trust, a default system takes effect, and the decision is determined by the state statute.

“Having a will is very important,” says Fred R. Franke, estates and trusts lawyer at the Law Office of Frederick R. Franke, LLC in Annapolis. “You need to take responsibility for your assets and decide where they go. Exercise your right. Don’t let state law decide.”

And this applies to everyone—from elderly couples with grown children to young couples just starting their families. If you have young children, you may not think you need a will—or that there is time to prepare one later—but you need to make plans now. A will allows you to choose the guardian of your children and decide how the assets are handled for your children’s benefit until they are old enough to make their own financial decisions.

The bottom line: It doesn’t matter how old you are or what your life circumstances are. Plan ahead, and prepare a will, so you can decide what you want. Give your family members an inheritance, donate money to your alma mater or your favorite charity, or set aside money for your pet. After all, pets are members of your family, too, and they need to be provided for after your death.

According to Frank R. Campbell, an attorney at Holden & Campbell in Annapolis who practices estate planning and estate administration, you can plan for your pet in your will by designating a person to take custody of your beloved animal companion. You may also want to give him or her a cash gift that can be used to care for your pet. Another option is a pet trust. Under Maryland law, you can create a trust that allows money to be set aside for your pet’s care. As you can see, there are several factors to consider when preparing your will, so deliberate carefully.

Your lawyer can help you prepare your will based on your particular life circumstances. He or she can offer advice, address your questions or concerns, help you plan the will’s structure, and offer an objective perspective. To validate your will, you must sign it in the presence of two witnesses. Like any legal document, you should review your will periodically.

“What usually dictates when you should revisit your estate plan are changes in your personal life, such as how and what your children are doing, whether there are new grandchildren, or whether you sold your business or plan to sell your business,” says Franke. “These types of changes are indications that you should review your planning.”

Preparing an Advance Directive

Life is unpredictable, and tragedy can strike at any time. Under a Maryland law called the Health Care Decisions Act, you can prepare an advance directive, which allows you to specify your preferences regarding health care if you’re no longer able to make your own decisions due to incapacity. For your convenience, the Maryland Office of the Attorney General provides forms online at www.oag.state.md.us/Healthpol/adirective.pdf  However, you aren’t required to use these specific forms, and you may even change them or use different forms if you wish. Although you can complete an advance directive without the assistance of a lawyer, you may want to consult your lawyer if you have any questions or concerns.

A valuable document for adults of any age, an advance directive includes two sub-documents: a durable power of attorney for health care and a living will. A durable power of attorney for health care allows you to designate a health care agent to make decisions for you. You can decide how much authority your agent has and may select a family member or someone else. Choose someone who knows you well, and talk to him or her about what type of medical treatment you would want if you were unable to speak for yourself. Make sure that he or she understands your wishes and is willing to accept the responsibility of making decisions on your behalf. Since this is a very personal decision, choose the person you feel is best qualified—even if your family may not agree with you.

“Selecting a health care agent is very important,” says Campbell. “Without a health care agent, a family member may need to be appointed by a court to serve as your guardian. This process can be costly and stressful and may not result in the designation of the agent you would have selected. By designating a health care agent, you’re avoiding the court process, selecting the agent you believe will serve you best, avoiding potential discord among your family, and creating an orderly decision-making process for your health care.”

Unlike a will, which indicates your decisions regarding financial matters, a living will specifies your decisions about medical treatment, including your preferences about life-sustaining procedures, such as the use of a breathing machine or a feeding tube. Although you don’t have to prepare both a durable power of attorney for health care and a living will, it’s in your best interest to do so because it makes your wishes as clear as possible. This not only helps your doctors, but it also creates a guideline that further helps your health care agent make decisions on your behalf.

To validate your advance directive, you must sign it in the presence of two witnesses. (If you named a health care agent, he or she may not be a witness.) Since your family circumstances or medical issues may change, you should re-evaluate the document periodically. Campbell recommends reviewing it every three years.

“The forms online are a good place to start, and they’re easy to use,” says Campbell. “Before preparing an advance directive, have an open conversation with your family. This conversation is very important. Don’t make them guess what you want. Make your wishes clear, and give copies of the signed document to your family members.”

In addition to an advance directive, another document that you should complete with your doctor is a Medical Orders for Life-Sustaining Treatment (MOLST) form. This document can be used in conjunction with an advance directive—further ensuring that your wishes are honored—and includes more specific orders regarding life-sustaining treatments as well as a Do Not Resuscitate (DNR) order. Talk to your doctor about the appropriate time to complete this form.

For more information about advance directives, contact Paul Ballard, assistant attorney general and counsel for health decisions policy, at 410-767-6918.

“We find that our clients almost universally think that the health care decision-making process is equally as important as estate planning,” says Franke. “They want to communicate their wishes clearly and take responsibility for end-of-life issues. This is why advance directives and wills are so important: They give people a voice and an opportunity to be heard.”
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