Estate planning primer, Pt. 5: Advance directives
By Julius Giarmarco
Giarmarco, Mullins & Horton, P.C.
This is part five of a five-part series on estate planning. Part one dealt with minimizing death taxes; in part two, we discussed how to avoid the costs, delays and publicity associated with probate in the event of your death or incapacity; in part three, we looked at techniques to set forth your dispositive wishes (i.e., who gets what, when and how); and in part four, we examined how to coordinate the myriad technical rules relating to IRAs and other retirement plans with your overall estate plan. And in this part five, we’ll discuss advance directives regarding your medical decisions upon incapacity, including end-of-life decisions.
Advance directives, also known as living wills, patient advocate designations and health care powers of attorney, are instructions specifying what actions should be taken for your health care in the event you are no longer able to make those decisions due to illness or incapacity. Advance directives are state specific. All 50 states and the District of Columbia have their own laws regarding them. You must look to your state's law as to how to properly set forth your wishes concerning health care and end-of-life decisions, and how to validly designate a patient advocate to carry out your wishes.
Generally, no difference exists between withholding life-saving treatment and withdrawing life-support treatment (for persons put on life support). With an advance directive, you can express the extent to which you want life support when you are no longer able to decide for yourself. But preparing an advance directive involves more than simply filling out a form. You should discuss and share your wishes with your family, loved ones and perhaps even your clergy. The written document is a good way to memorialize your thoughts and choices, but it is no substitute for time spent discussing those choices with your family and loved ones. It's particularly important that your patient advocate understand your wishes.
The purpose of estate planning is to help you to achieve your personal and family goals after you die; to pass on your property to others according to your wishes; to protect your heirs from creditors, ex-spouses and death taxes; to provide for guardianship of minor children; to avoid the costs, delays and publicity associated with probate in the event of your death or incapacity; to decrease or eliminate death taxes; to coordinate your estate plan with your IRAs and other retirement plans; and to set forth advance directives for your health care and end-of-life decisions.
Brigham Young said, "A fool can earn money, but it takes a wise man to dispose of it to his own advantage."
Dying isn't a subject most of us care to think about, especially when we're young. Often, we perceive death as something that will occur far off in the distant future, not something of current importance or consideration. The reality is we have no control over when we will die, but we can control how our affairs and assets will be handled after death.