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Establishing Your Medical Care Wishes

Laws that regulate fulfilling your medical care wishes when you are incapacitated differ state to state. The names of the documents vary. The types of documents vary. The titles of the person(s) to whom you assign decision making varies. If and with what agencies you need to file your documents vary. In absence of having legal documents that indicate what kind of care you want when you can’t communicate, who can make those decisions on your behalf also varies by state.

Here is an explanatory chart, courtesy of

Term Also Called Meaning
Living Will
  • Health Care Declaration
  • Directive to Physicians
  • Health Care Directive
  • Medical Directive
A legal document in which you state your wishes about life support and other kinds of medical treatments. The document takes effect if you can’t communicate your own health care wishes.
Durable Power of Attorney for Health Care
  • Medical Power of Attorney
  • Power of Attorney for Health Care
  • Designation of Surrogate
  • Patient Advocate Designation
A legal document in which you give another person permission to make medical decisions for you if you are unable to make those decisions yourself.
Advanced Health Care Directive This term usually refers to a single legal document that includes both a health care declaration and a durable power of attorney for health care. It is currently used in more than one-third of the states.Technically, however, both living wills and durable powers of attorney for health care are types of advance health care directives.
Health Care Agent
  • Attorney-in-Fact for Health Care
  • Patient Advocate
  • Health Care Proxy
  • Surrogate
  • Health Care Representative
The person you name in your durable power of attorney for health care to make medical decisions you if you cannot make them yourself.

Below are links to each state’s government-provided guidance and forms for advance healthcare directives and related matters (e.g., healthcare proxies, treatment preferences, organ donation, etc.).

Inventory Accounts

Suspending or settling/closing your accounts is not as easy as you think. Do you have an inventory of all of your accounts in your advanced planning documents? If not, you could cause your loved ones a lot of stress.

Recently, the media has covered the need to share with your loved ones your online social account access, i.e., Facebook, Pinterest, Instagram, LinkedIn, etc., so they can manage them and communicate with your connections when you cannot or upon your death. However, the media has not mentioned the need to also inventory more traditional accounts that are not merely banking, investment or insurance, both online and offline.

When I speak with people who are handling a loved one’s illness or death, they often share stories of how difficult it was to track down a variety of account types for suspension or cancellation. Examples of these more traditional accounts and auto-renew subscriptions include:

  • social security and/or disability benefits
  • automatic payments from a checking or savings account for items such as: credit card payments, utilities (electricity, gas, water, home oil), tele (wireless, home service), Internet access, home-owners association, cleaning or yard service, nursing home, etc.
  • credit cards, especially store-branded (e.g., Macys) and affinity cards (e.g., university) which may not have been used frequently
  • newspaper and magazine subscriptions, often set to auto-renewal on credit cards, both delivery and online access
  • monthly charitable contributions to public radio or television
  • cloud-based software/service, e.g., MS Office, Adobe, virus protection like Norton 360, online storage like Google Drive, etc.
  • children’s activities and sport

Think about the number of accounts you have that may draw from or deposit to one of your credit card, bank or investment accounts.

If one dies intestate (without a will), all of accounts need to be settled and closed prior to completing probate. That’s one of the reasons why probate takes so long. Months and months before assets are distributed, potentially leaving a spouse without a financial means of support. Taking inventory of all accounts is critical, even for those who have their basic advanced planning complete: will and advanced healthcare directive.

A gentleman who shared his story told me that it took him more than two years to find then settle of his mother-in-law’s accounts. And she did believe that she and her estate planner had covered everything in advance.

Choosing Children’s Guardians

Your children will not automatically be cared for by your close relative. A common misconception is that during an emergency, your children may be cared for by your family or close friends. The truth is your choice of your children’s guardian needs to be legally documented or the court may appoint someone who would not be your choice. Establishing legal guardianship for your children serves more than one purpose. Yes, it would protect your minor child(ren) if all legal parents die. However, it could also protect your child(ren) if all legal parents become incapacitated, physically or mentally ill.

According to a national survey, 80% of parents of minor children have not established legal guardianship. A scary fact. Many of my friends—highly educated professionals—fall into this camp. Why? Anecdotally:

  1. Have false comfort knowing that rarely do both parents travel (think: distance travel) without the children
  2. Incorrectly assume their informal agreement with grandparents or siblings will suffice
  3. Want to avoid argument with spouse over who the guardian(s) should be

The fact is most family tragedies occur in a car, close to home. And, if you fear family arguments and resentments while you are coherent, imagine how they would play out if you were seriously injured or deceased. Though a court still needs to approve your guardian choice(s), they usually do. In absence of legally recording your choices, the court may hear claims from family, close friends or appoint someone else who seems more suitable. In other words, you child(ren) could wind up anywhere.

You can choose different guardians for different purposes. Legally, there are two types of guardians for minor children. In layman’s terms:

  1. Guardian of the person: this is the substitute parent.
  2. Guardian of the estate: this is the person who manages the minor’s assets.

Either or both of these can be established as short-term or long-term arrangements. For example, short-term guardianship while the parent is in the hospital. Or if all legal parents are deceased but the permanent guardians live far away, the child may need a local short-term guardian.

It is also important to review your choice of guardians regularly. Your chosen guardian’s situation may change: have more children, divorce, change lifestyle or residential location. Further, your relationship to your choice may change.

Quiz: A useful worksheet for choosing guardians.

What happens if you die without making a will?

Your assets may not go to your spouse or children. It depends on the state in which you reside. Not all states are the same.

You may be surprised that many of your relatives, not only your spouse and/or children, may take legal claim to your assets. Typically, probate courts will distribute your assets to your spouse, your children, your parents, your siblings and other decedents. Not necessarily in that order. Some states favor the spouse, others the children or only minor children. Community property states divide differently community property vs. individual property.

If you assume that your spouse will “simply” inherit your estate, you could be wrong. For example, in 24 states surviving parents inherit a significant portion of the property value, decreasing the surviving spouse’s inheritance. Further, most states require a minimum six months waiting period prior to distributing the estate to allow creditors time to respond. And probate is not free. It requires legal representation which is usually far more costly than making a will would have been.

With today’s complex family structures, dividing inheritance assets can quickly become contentious and drawn out legal proceedings. It is all too frequent that a surviving spouse is forced to sell their family home in order to divvy up its value to pay relatives their legal share of the estate.

Sadly, research indicates that more than half of Americans do not have a will. According to LexisNexis, the percentage is greater for African Americans and Hispanics. However, if you have an opinion about what happens to your assets after you die, you need to make a will.