Do my estate planning documents cover medical decisions?

There are three components to your medical directives and medical decisions. These three components are:

  • a living will
  • a health care power of attorney
  • a mental health care power of attorney

You may also get the individual medical directives separately.

What is a Living Will – Medical Decisions

A living will sets forth your end of life decisions. This document works if you are in a terminal condition, a persistent vegetative state or an irreversible coma and unable to communicate your medical decisions.

The living will states what choices you would have made for yourself if you were able to communicate. The decisions contained in a living will are often referred to as “end of life care” decisions or a “pull the plug” directive.

In the living will, you can elect to receive only treatment that will make you comfortable. For example, pain medication, but will not extend your life and allow you to naturally expire.

This election prevents the use of ventilators and other machines that keep you alive if there is not a reasonable medical expectation of recovery.

You may also elect to have your life prolonged to the greatest extent possible.

These are your medical decisions to make in your living will. Your health care representative, family, doctors and any others who might be in a position to make medical care decisions for you are bound to follow your choice.

Healthcare or Medical Power of Attorney

A health care or medical power of attorney form appoints a representative to make medical decisions for you if you are unable to communicate your own decisions.

If you are in a car accident and unconscious upon arrival at the hospital, your health care representative may authorize or refuse surgery or other medical treatment on your behalf.

But, your health care representative is bound by the choices you made in your living will if you are in a terminal condition, irreversible coma, or persistent vegetative state and there is no reasonable medical expectation of recovery.

A health care power of attorney may also express your choices on funeral and burial disposition, organ donation, autopsy, and nomination of a guardian if one is required.

Arizona requires an express authorization for a health care representative to make certain mental health or behavioral decisions.

If you become incapable of making your own mental health care decision due to mental or physical illness, injury, disability, or incapacity, you may state your mental health care wishes in a mental health power of attorney and appoint a mental health care representative to make decisions in your best interest that are not otherwise clear.

These decisions involve admission to a structured treatment setting with 24 hours-a-day supervision and an intensive treatment program licensed by the Department of Health Services, commonly referred to as a “level one” or “locked” behavioral health facility.

For people with severe medical conditions that are nearing the end of their life, a Prehospital Medical Care Directive or Do Not Resuscitate Directive may be appropriate.

This directive informs emergency medical technicians (EMTs) or hospital emergency personnel that you should not be resuscitated by the use of equipment, drugs, or devices to restart your heart or breathing.

There are strict requirements to make a valid Do Not Resuscitate Directive and it must be signed by a doctor or other health care provider.

These health care directives cover very important medical decisions and choices. Choices that will be made if you are unable to communicate.

At Bailey Law Firm, we will provide you with a Health Care Options form that contains information about these decisions and allows you time to contemplate your choices.

We will also go over each of your choices with you when we meet so that you fully understand your options and we will answer every question you have.

Bailey Law Firm offers caring and compassionate legal services to our clients and it could not be more evident in guiding and assisting you with your medical power of attorney forms.

I have an old trust prepared in another state. Is it still valid?

In short, yes. If a will or a trust was validly created pursuant to the laws of the state where it was executed in effect at the time of its creation, it is still valid. However, our lives our constantly in flux and your family situation or your wishes then may be different now than they were when you first created your will or trust.

Additionally, the law may have changed since you created your old will or trust potentially providing you with more advantageous possibilities. You should review your estate plan regularly.

We recommend reviewing your estate plan at least every five years or upon the occurrence of a major life event within your family such as

  • marriages
  • divorces
  • births
  • deaths
  • changing residences
  • or moving to another state

We will review your family situation and wishes with you to confirm that your estate plan still meets your goals.

If a change is needed, a codicil to a will or amendment to a trust may be sufficient. If major changes are required, we will provide you with the option of preparing a new will or restated trust. The important thing is to bring your estate plan in compliance with your goals and wishes.

Why can’t I prepare my own will?

Estate planning is an investment that involves more than just “fill-in-the-blank” document preparation.

Knowledge and experience are used to design a comprehensive, customized plan that will execute efficiently and as you intended on your passing. There are many potential pitfalls and traps for the unwary in estate planning.

Your estate planning documents need to be coordinated with the beneficiary designations on your financial and retirement accounts, a qualified personal representative or trustee needs to be appointed, and a workable plan must be installed.

Unfortunately, many contested probate actions are the result of estate planning documents that were not properly prepared costing the beneficiaries much more in attorney fees (and time!) in the probate action than an initial investment in a professionally-prepared estate plan.

Let me give you an anecdote. Warren Burger was the Chief Justice of the United States Supreme Court from 1969 to 1986, arguably the top legal position in the country.

Chief Justice Burger drafted his own will.

Despite his keen legal mind, Chief Justice Burger made some mistakes in his will that cost his family many thousands of dollars correcting the mistakes in probate court.

You can see how easy it is to get tripped up by a pitfall in drafting your own estate plan if the Chief Justice of the United States Supreme Court made errors in drafting his own will.

What exactly is probate and why should I avoid it?

In short, “probate” is a court action where a decedent’s final affairs are completed and his estate is distributed.

But, probate actually consists of two actions taken by the court:

  • appointing a personal representative, sometimes referred to as an executor, to administer the estate
  • determination of the validity of a will left by a decedent.

Additionally, the probate court may determine the heirs of an estate or devisees of a will. The probate court will also determine if a bond is necessary and the amount of the bond.

There are a few different types of probate actions. Informal probate is the most streamlined. The probate clerk will review the application for appointment of personal representative and/or admission of a will to probate and initiate the probate proceedings if the application appears sufficient on its face.

Informal probate is not available in some situations. Such as

  • when certain people apply to be personal representative
  • there are multiple people with equal priority for appointment as personal representative that will not waive their right to appointment
  • or when there are multiple un-revoked wills.

A formal proceeding involves an initial hearing before a judge or commissioner to consider matters that are not permissible in informal proceedings or when the probate clerk rejects the informal application on its face.

If objections are made to the relief requested at the initial hearing, then a discovery schedule will be entered and an evidentiary hearing scheduled to resolve the contested matters.

An informal hearing will become a formal proceeding if objections are made by an interested party to the appointment of the personal representative or validity of the will.

In most cases, the administration of the estate by the appointed personal representative will proceed just like one initiated by informal proceedings once the issues involving the appointment of a personal representative or validity of a will are resolved with little court intervention unless there are further objections filed.

A supervised administration is one in which the court has a more “hands on” role in administration of the estate and supervises the actions of the personal representative. Supervised administration is permitted if the will directs it, the court finds that supervised administration is necessary for the protection of persons interested in the estate, or the court finds that supervised administration is “necessary under the circumstances.”

Once appointed, the personal representative has many duties to perform.

Before appointment, the personal representative must take two online training modules that go over the duties and obligations of the personal representative.

Then, the personal representative must

  • notify interested persons of his or her appointment and/or admission of the will to probate
  • determine if any statutory allowances are applicable, provide actual notice to know creditors of the decedent
  • publish notification to unknown creditors in a local publication
  • prepare an inventory and appraisement of the estate assets
  • file the decedent’s final personal income tax return and any estate tax return if necessary
  • determine the validity of claims received by creditors and dispute claims that may be invalid
  • pay valid debts and expenses
  • respond to inquiries from people interested in the estate
  • distribute the remaining assets to those entitled to them
  • and, finally, close the estate either formally or informally.

Probate is a lot of work! You can see why we recommend setting up an estate plan that will avoid probate proceedings.

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