Feb. 28, 2018 – When I prepare wills and other advance directives for clients, they often mention how long they have been putting off this task. Even as an attorney, I long procrastinated on preparing these documents for myself. It's nobody's idea of a fun way to spend an afternoon. But one excuse that people often use to avoid this task needs to be addressed because it's based on a faulty assumption.
People often tell me they'd rather just wait to prepare advance directives, like powers of attorney for financial matters and health care decisions, when there's really a need for those documents. They tell me they'll do it if something happens, if they suddenly become very ill or get diagnosed with dementia, for example. They prefer to wait for some triggering event as long as they're still able to handle things on their own.
What are advance directives?
Advance directives are legal documents that state your wishes about your medical care, finances and property in case you become incapacitated or die. Here are the most common types:
Will: States who receives your property at death (your "beneficiaries") and who handles your affairs after you die (your "executor").
Living Will: Describes when you would want certain medical care withheld if you are unable to speak for yourself.
Durable Power of Attorney: States who can handle your financial matters and make related decisions on your behalf if you are unable to do so. This remains in effect only while you are alive.
Health Care Power of Attorney: Allows another person to make medical decisions for you if you are unable to make those decisions yourself.
Here's the problem with that excuse: Such triggering events could be exactly when it becomes too late to sign advance directives. What many people don't realize about advance directives is that they can only be authorized at a time when you have the legal capacity to make decisions and appoint others to handle things for you. Once you lose the mental or physical ability to make and communicate decisions, you also lose the ability to create valid, enforceable powers of attorney. This also applies to a living will, a document that let doctors know under which circumstances you would want life-prolonging measures withheld. Once you no longer have the capacity to make decisions about what you want, including which individuals you would allow to make decisions for you, you cannot legally execute these documents and they will not be valid even if you sign them.
To understand the importance of having advance directives in place before a triggering event, consider what can happen without them. If you become physically or mentally incapacitated and have not authorized anyone else to make decisions for you, doctors will look to your next of kin to make health care decisions. This may be fine for some, but it could be a nightmare if you're separated but not yet divorced, or if you are estranged from your closest relative. As far as finances go, if nobody has authority to write checks for you and pay your bills, you may rack up debt including late charges, interest fees and possibly even lawsuits by creditors. The only remedy available will likely be legal guardianship. This means you must be declared incompetent and it will be too late then to choose who you wish to act as your legal guardian. If you are no longer competent, absolutely anyone can file a petition to become your guardian and it will be up to a clerk of court, who has never met you before, to decide whether to grant any particular individual the power to make major decisions about your life.
Advance directives were invented to avoid those drastic outcomes. Preparing them while you're mentally and physically able to do so gives you maximum options and can help you avoid ending up in the hands of the wrong person and becoming more vulnerable to abuse or exploitation. So if you're aging, but happily still able to make decisions and do things for yourself, use that power now to extend your decisions into the future while you still can.
Jennifer Stuart is an attorney in Raleigh with Legal Aid of North Carolina's Senior Law Project (SLP). She writes monthly articles about legal issues affecting seniors. The SLP provides free civil legal help to North Carolinians who are 60 or older. To contact the SLP, call 1-877-579-7562 (toll-free), Monday through Friday, 9-11 a.m. and 1-3 p.m.