By Sharona Hoffman
During 2013 and 2014, I endured a very difficult 18 months. Both of my parents died, my mother-in-law died, and my husband was diagnosed with Parkinson’s disease at the age of 55. As I went through all of this, I learned a great deal about getting older, getting sick, facing the end of life, and caregiving. As a result of my personal experiences and my professional background as a Professor of Law and Bioethics at Case Western Reserve University, I wrote a book called Aging with a Plan: How a Little Thought Today Can Vastly Improve Your Tomorrow.
The book addresses many legal, financial, medical, social, and other support systems for aging and caregiving. In this article, I discuss the legal documents that every American adult should have. These documents can help ensure that your finances and health care are well-managed as you age and that your wishes will be followed after death.
Wills. Only 46% of U.S. adults have wills, and even among seniors, the figure is only 76%. But everyone with assets should have this essential document. If you don’t have a will, state law will govern how your assets are distributed, and they will most likely go to your spouse and your children. But if you want to distribute some assets to others, such as different loved ones or charitable organizations, you will need to leave those instructions in a will.
Payment or Transfer on Death. If you would like to avoid probate and minimize the work of the executor of your estate, consider designating assets as transferable or payable on death. This means that you will name particular beneficiaries as recipients of specific assets, such as cars, bank accounts, and your house. You will need to fill out the appropriate forms at the appropriate places (banks, department of motor vehicles, county recorders, etc.). But this work will be well worth the effort in the long run.
Durable Power of Attorney for Property & Finances. You may become unable to manage your finances — due to cognitive decline, for example — long before the end of your life. For this reason, you need to appoint a financial decisionmaker through a durable power of attorney for property and finances.
You should have both a primary decisionmaker and an alternate in case the original person is unavailable, unwell, or deceased when needed. These individuals need not be close relatives. The most important thing is that your trust the decisionmakers and believe they will do the job well.
Your decisionmaker can pay bills, make investment decisions, sell property, and act as your financial agent. Therefore, it is important that you feel comfortable discussing your finances and preferences with your decisionmaker and alternate. Provide them with information about your financial advisor, banks, and assets to facilitate their work, if and when the time comes.
Durable Power of Attorney for Health Care. You will also need a decisionmaker for health care. Because of dementia or another illness, you may not always be able to make your own health care decisions. You should therefore appoint a decisionmaker and an alternate through a durable power of attorney for health care.
Your health care decisionmaker will be empowered to consent to medical treatments and decline them. Your physicians will discuss all medical matters with the individual, who will operate as your agent if you lack decisional capacity.
You should select a decisionmaker and alternate with whom you feel comfortable discussing your preferences and priorities. For example, if you have a psychiatric illness, are there treatments you are willing or unwilling to undergo? At the end of life, would you want to receive aggressive treatment (dialysis, artificial nutrition and hydration, a ventilator) in order to prolong life as much as possible? Would you prefer to emphasize quality of life and receive only comfort care if you have a terminal illness and are expected to die soon?
You should feel confident that your decisionmaker and alternate will follow your wishes even if they would make different decisions for themselves. Remain in communication with them to provide updates about your preferences and to verify they remain willing to serve.
Living Will. This document often is packaged with the durable power of attorney for health care. It allows you to indicate specific treatments that you would and would not want at the end of life. However, because living wills are relevant only to the end of life, you should also appoint a decisionmaker in case you lose capacity to manage your own health care at any point.
Many of the documents listed above can be downloaded from the Internet. But if you can afford an attorney, it is useful to consult one, especially about a will. An attorney can ascertain that your legal documents are tailored to your needs and wishes.
Be sure to provide copies of your documents to your decisionmakers, physicians, and anyone who may need them. If you simply store them in a drawer at home and do not distribute copies to the relevant people, they may be lost or accidentally destroyed.
Revisit your legal documents periodically to make sure they are current. Experts advise that you update your documents upon the 5 “Ds”: 1) turning a new decade; 2) death of one of your beneficiaries or designated decisionmakers; 3) your divorce 4) a significant diagnosis; and 5) decline in your health or the health of a decisionmaker.
In the midst of crisis, it can be very difficult to make good decisions. Therefore, as I emphasize in Aging with a Plan, it is vital to think ahead and put important safeguards in place.
Sharona Hoffman is the Edgar A. Hahn Professor of Law, Professor of Bioethics, and Co-Director of Law-Medicine Center, Case Western Reserve University School of Law. She is the author of over 70 articles and book chapters about health law and civil rights issues. Her most recent book is the second edition of Aging with a Plan: How a Little Thought Today Can Vastly Improve Your Tomorrow (First Hill Books 2022).