Planning for the Unexpected: How Legal Directives Protect Your Wishes

When most people are asked about their “estate plan,” they think about who they want to receive their assets upon their death. Some people think of a Will or Trust. Very few people consider planning for incapacity or disability during their lifetime. However, a comprehensive estate plan should provide for decision-makers in the event you are unable to make financial or medical decisions for yourself. This article will review the benefits of a Power of Attorney and an Advance Medical Directive so you can make informed decisions about your care in your estate plan.

Power of Attorney

The power of attorney is a legal document that allows an individual, known as the principal, to appoint another person, called the agent, to make decisions and act on the principal’s behalf for a wide range of financial and legal matters. An agent under a power of attorney may do many things for the benefit of the principal, including paying bills, managing investments, responding to legal matters, and negotiating contracts.

Because the power of attorney grants such powerful authority over the principal’s assets, it carries risks of potential abuse. Fortunately, there are multiple ways to mitigate these risks. First and foremost, you should only pick an agent that you fully trust to work for your benefit. You can also name multiple agents to work together so there is shared oversight. Another option is to work with your attorney to remove certain powers from your document if you have particular concerns over a specific power being misused. Finally, you can choose to make your power of attorney immediately effective for use by your agent as soon as you sign it, or you can have it set up to only grant powers when your doctors have declared you to be incapacitated or incompetent.

Advance Medical Directive

The advance medical directive, sometimes called a healthcare power of attorney or medical directive for short, is a legal document that states the principal’s preferences for medical care if they become unable to communicate their decisions. The medical directive in Virginia typically fulfills two major objectives: (1) naming an agent to make decisions on the principal’s behalf when they are incapacitated; and (2) declaring end-of-life care decisions in a living will.

The first objective is similar to the power of attorney, where you may name someone else to make your medical decisions. Unlike the power of attorney, this agent only has decision-making authority if the principal’s doctors declare them incapacitated.

The second objective is to provide guidance to physicians and family members about what medical treatment they should receive, and is commonly referred to as a living will. While the living will has existed in the United States since the late 1960s, it rose to prominence during the Terri Schiavo case, which took place from 1998 to 2005. In this case, Terri Schiavo suffered a heart attack and fell into a coma in 1990, from which doctor’s said she was unlikely to ever recover. After eight years, her husband petitioned the courts in 1998 to remove her feeding tube, but was opposed by her parents. The ensuing legal battle spanned seven years and was sensationalized by the media, as the courts contemplated arguments about what her wishes would have been for end-of-life care had she created a living will.

Estate planners stress the importance of these documents because if you are suddenly incapacitated by illness or injury, a loved one may need to acquire court permission to do something as simple as paying mortgage or rent payments on your behalf if you have not made prior arrangements. Putting these documents in place before you need them is essential to ensuring that an individual’s financial and healthcare wishes are respected and executed, particularly during times when they may be unable to make decisions for themselves due to illness or incapacity.