I stress to clients that a comprehensive estate plan should do more than focus on what happens after they are gone. In fact, a successful estate plan should contemplate planning for your possible incapacity as much as for your death. I’ve spent more than twenty-five years of my legal career on estate planning, and over time, have come up with the following as the best definition for estate planning: Estate Planning is about planning in advance for when you are not in control, so the people you choose are in charge, so they have the tools they need in order to help, so they will be guided or directed to do what you want, and empowered to do what you and those you leave behind need.
One of those scenarios is your incapacity and the numerous health care decisions that might need to be made if that happens. With that in mind, I urge clients to consider executing the advance directives recognized by the State of North Carolina.
What Is a Living Will?
An Living Will is a legal document that, together with a Health Care Power of Attorney, allows you to plan and make your own end-of-life wishes known in the event that you are deemed by your doctor to be unable to make your own decisions at some later time. The Living Will and Health Care Power of Attorney are controlled by statute and differ from state to state (although your North Carolina documents will be legally enforceable in any state). Most states have statutory forms for the Living Will and Health Care Power of Attorney, and it’s been my experience that using the statutory forms (as they may have been modestly revised by your lawyer based upon experience) makes them easier to use when needed, because the people who are asked to rely upon them are more familiar with them. I see some North Carolina lawyers choose to combine these two into one document. This is fine and legally enforceable, but I think its a bad idea which obscures the function of these two documents, which are fundamentally different. The Living Will is you making a decision about end-of-life decisions while a Health Care Power of Attorney is about you assigning someone else to make decisions for you. They work quite well together and overlap, but I think are better understood and applied as separate documents.
- North Carolina Health Care Power of Attorney. Under the Health Care Power of Attorney, you name someone, called your agent, to make decisions about your health care. The health care power of attorney is especially useful because it appoints someone to speak for you any time you are unable to make your own health care decisions, not only at the end of life. A North Carolina Health Care Power of Attorney goes into effect when your doctor determines that you are no longer able to make or communicate your health care decisions. The Agent steps into your shoes and can do anything you can do, neither more nor less, unless you choose to limit their authority. By the way, it is always a good idea to have at least one successor Agent named in your document in case your firest choice is unable to serve.
- North Carolina Advance Directive for a Natural Death. This is North Carolina’s version of a Living Will. In this document, you establish a legally enforceable direction to your doctor, hospital, nursing home, or hospice — you health care provider — about what kind of care you want at the end of life. The instructions in this document apply only after and for so long as your physician has determined that you cannot make your own decisions. You address the importance of keeping you comfortable and free of pain and the situations in which you want your physician to withhold or withdraw of life-prolonging measures and allow you to pass without intervention.
How do the Living Will and Health Care Power of Attorney work Together?
As I said before, you Health Care Power of Attorney steps into you shoes and can make any health care decision you can make, unless you have limited them. Issues surrounding your end of life planning are controlled by the Health Care Agent, even when you have a Living Will. For example, who will be your doctor, shall a second opinion be required before acting on your Living Will, should implementation of the decisions in your Living Will be applied only after all family members have had the opportunity to visit to bid you farewell. Executing a Living Will does not take the power of these Health Care Agent away with respect to these details.
Even more important, is that the North Carolina Living Will provides the opportunity for you to say clearly that the decision to withhold life prolonging measures is yours, and not left to your Health Care Agent. This removes the burden of these decisions from the family member or friend who is acting as your Agent, ensures your instructions are followed, and reduces the chances of any disagreement among those who are left behind (after all, they will be disagreeing with you, not your Health Care Agent).
Do I Need an Advance Directive?
Some of my clients say “I really want my Health Care Agent to make end of life decisions” and thus presume they do not need a Living Will. I feel pretty strongly that this is not the case. Even if you elect the option in the Living Will to leave the Health Care Agent empowered to make the decision, the choices you make in the Living Will serve as a roadmap as to your wishes, which should guide your Agent in making the decisions. .
Not all of my clients have these end of life issues at the top of their minds when engaging Clarity Legal Group to do their estate planning. They may be thinking about taxes, asset protection, or saving money in the administration of their asset at death. These are all good and important parts of planning. The thing is, when end of life decisions are forced to the front of your thinking, you may not be as able to make reasoned choices which reflect your values, simply because of the stress of the situation or the decline in you health. Also, keep in mind that it may be that not all of your loved ones agree with your wishes, and taking these planning steps can further helpful conversations which will lead to better results for you. The best way to avoid problems and to avoid leaving your family and loved ones in a difficult position may be to make the decision yours, through the execution of an Living Will.
Contact Raleigh, Durham and Chapel Hill Estate Planning Attorneys
If you have additional questions or concerns regarding the need for an advance directive, or if you would like help setting up and advance directive, please contact the estate planning attorneys at Clarity Legal Group by calling us at 919-484-0012 or contact us online.