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May 24, 2005 > Advance Estate & Health Care Planning

Advance Estate & Health Care Planning

Legal Eyes

Q: I am 45 years old, married with 2 children. My mother, age 77, lives nearby. I have 5 siblings, none in California. Should my mother have "estate planning?" What about decisions on future medical care?

A: A written Advance Health Care Directive is essential. As to an estate plan, both you and your mother should have Wills and/or Trusts to benefit your family.
Advance Health Care Directive
Everyone should have a written Advance Health Care Directive, including a Power of Attorney for Health Care Decisions. The laws are Probate Code Sections 4600 - 4805.

The Power of Attorney allows you to appoint an agent to make health care decisions for you. This is essential if you become mentally incompetent.
If you fail to appoint an agent in advance, your wishes may not be followed. The court may appoint a guardian, who may not be the one you would select.
The Advance Health Care Directive, including a Power of Attorney, is a formal legal document. Two competent, independent witnesses or a notary is required.
Certain persons are disqualified as witnesses. These include the person named as your agent, your heirs, your health care providers, and their employees.
An adult daughter, son, sibling or other close relative is usually whom you would select as your agent. You should include alternates to act if the first person selected becomes unavailable.

From experience as the "health care" agent for my mother (I have 6 siblings), I can attest that this agency is a heavy responsibility. It is a harrowing experience for a son, daughter, or parent to make life-sustaining, gut-wrenching decisions of this kind.

But with that responsibility comes the honor of trust. Eventually we must make hard decisions. Regardless of advice and counsel from others, the final decision is the lonely obligation of the appointed agent.

The giver of the agency may lighten the burden by carefully crafting in advance the guidelines for the critical moments. The written directives can be personalized to individual concerns.

The Advance Directive sets in writing one’s personal wishes with respect to life-support. Many people do not want artificial life support if they are irreversibly comatose or if heroic treatments or procedures are needed to keep them alive. On the other hand, one may direct that life be prolonged as long as possible by generally accepted health care standards.
You may limit the power of your agent in written directives. Some persons of advanced age, for example, do not want CPR. The agent will not have the power to override that directive.

The directive may include preferences regarding organ donations, health care facilities, and disposition of the body. However, burial or cremation arrangements may be covered in another document, e.g., a Will or Living Trust.

Wills and Living Trust
Wills and Living Trusts will be covered in another column. They are essential for the proper distribution of your assets, for savings in costs and taxes, and for selection of guardians and trustees for minor children.
The failure to plan your estate is akin to driving without a license. It can cost you. Be wary of advertised "Living Trust" mills at "discounts." They may not meet personal needs, they may use financial information for other "sales" purposes, and they may be practicing law without a license.

The Lesson: Protect and benefit yourself and your loved ones.

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