Many adults think “estate planning” is for seniors or it is something to think about after you retire or just something you do when you become “old”. The truth though is every adult should think about “estate planning” especially if they are married or have children.  Estate planning doesn’t just mean creating a will or trust, it also involves planning for the unthinkable. An illness or accident that leaves a person incapacitated and unable to make medical decisions for themselves can leave their family or friends stuck unable to make choices they think will be best or not knowing what that person would have wanted.

According to a 2020 Gallup poll only 45% of American adults have a living will and the majority of adults who do are sixty years or older[1]. The last two years have shown that serious illness and death can affect even the youngest among us. Planning for the unthinkable can give you and your family peace of mind. Having both a living will, and Healthcare Power of Attorney will ensure that your wishes are fulfilled and ensure that someone you trust is able to take care of issues you may have not even known you needed to prepare for.

A living will has many names: do not resuscitate (DNR), advanced directive, medical directives, or healthcare proxies. Many people don’t think about them until they are facing a serious illness or surgery and the hospital asks if they have a living will on file or if they would like to make one before going under the for the surgery. Having a living will allows you to make decisions about life saving and life sustaining care that you may encounter. A living will also allows an individual to legally document what level of care they would like to receive if they become incapacitated. A typical living will gives you the chance to state if you do/do not want to withhold or withdraw from treatment that will prolong the process of dying and is not necessary to your comfort or to alleviate pain, incase you get an incurable disease or illness. It will allow you to decide, if you become permanently unconscious, if you want hydration, feeding tubes, a ventilator, etc. A living will can also specify if you want to allow blood transfusions, antibiotics, or pain management. The important thing is that you get to make these decisions before these things happen so that the doctors, your family, and friends don’t have to try and figure out what you would have wanted if you were unable to make these decisions for yourself. While a living will is very important it is often times completed with a Power of Attorney for Healthcare.

A Power of Attorney for Healthcare, or Healthcare POA, may seem redundant or even counterproductive to a living will but the opposite is true. A Healthcare POA allows your designated agent to act on your behalf and make decisions about your medical care when you are no longer able to. The doctors and agent will need to follow your living will but often times the living will does not cover all possible scenarios. If a decision needs to be made about something not mentioned in the living will or beyond life or death decisions a Healthcare POA will allow your appointed person (agent) to make those decisions. A healthcare POA often gives the named person (agent) the ability to have access to medical records and information to the same extent that you would be entitled to, including the right to disclose the contents to others; to authorize your admission to or discharge, even against medical advice, from any hospital, nursing home, residential care, assisted living or similar facility or other healthcare facility; and to contract on your behalf for any health care related service or facility without the agent incurring personal financial liability for such contracts. These are things that are hard for you to plan ahead for so naming a healthcare POA that you trust can make things much easier for you and your family. A healthcare POA will not go into effect unless you are incapacitated. They will also stop if you pass away or recover and like any power of attorney if the name agent is not acting in your best interest a court can revoke the power of attorney.

While it may be impossible to plan for everything you can ensure that major decisions about your healthcare are made according to what you want and if you are no longer able to make decisions for yourself then someone you trust will be able to make those decisions for you. This may not be the most fun topic to discuss but it is one of the most important. Nobody wants to think about the unthinkable, but a few minutes of planning ahead can save you and your family time, money, and unnecessary heartache.

For more information on the topic and to create your own living will and healthcare POA checkout out our statewide website at arlawhelp.org. If you want to speak with an attorney about these matters, you can call our helpline at 501-376-3423.

Resources:

[1] How Many Americans Have a Will? (gallup.com)

AUTHOR: ZACH BAUMGARTEN, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES