The Legal Situation

The courts have ruled that all mentally competent adults have the right to refuse medical care. If you’re in a condition in which you can’t communicate, and there is clear evidence of your wishes regarding treatment (such as a living will or other advance directive), those intentions must be obeyed. But the details get messy, because state laws vary widely on the subject. As a practical matter, your instructions must be written down, preferably in a formal document, if there is to be a good chance they will be obeyed. Even then, there’s no guarantee.

 There are some planning tools that can help. For financial matters, you can use trusts and durable powers of attorney to help you manage. For health care decisions, you can name a health care power of attorney (sometimes called a health care proxy) to act for you when you cannot act for yourself.

This chapter outlines some of the methods you can plan right now to manage your affairs when you might not be able to make decisions regarding your property, your medical treatment, even your life. The section below covers situations in which you turn financial decision making over to others; the next explains the advance directives you can create now to guide doctors and others in how to follow your wishes when you may not be able to tell them yourself.

Managing Your Property

If you should become disabled, life goes on. Bills (rent, mortgage, utilities) must be paid. Form 1040 must be filed. If you own a business, you may want it to carry on without you. Your property must be managed.

You may expect your spouse to do all this for you, but what if he or she is killed or disabled in the same event that renders you unable to manage your affairs? What if he or she dies before you do? What if he’s simply not capable of handling your affairs? Your estate plan must anticipate such a situation.

Don’t Wait Too Long

In considering “lifetime planning” or “advance directive” documents, remember that they’re only valid if made while you are competent--not when you’ve entered an advanced state of, say, Alzheimer’s disease. Also, state laws about how these documents must be witnessed and created vary greatly.

While you aren’t formally required to use a lawyer to prepare yours, a lawyer experienced in doing advance directives is very helpful. A lawyer can draft a personalized document that reflects your particular wishes and ensures that all legal formalities are followed. A lawyer is especially helpful if potential family conflicts or special legal or medical concerns are present.

Joint Tenancies Might Not Do It

One way to give someone else authority to manage your property is to put it into joint tenancy. This will give your co-owner the power to handle your property should you become disabled. But, of course, if your joint tenant is your spouse, her or she might also become disabled and not up to managing the property, or might die before you, terminating the joint tenancy. In many cases, joint tenancies are a bad idea, or at least insufficient to take care of all possibilities; chapter 5 explains why.