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Crisis Planning: Medical POA & Living Will

An unexpected event like the ongoing Coronavirus outbreak often reminds us that the best defense against the “bad times” is proper planning during the “good times.” Imagine if every at-risk adult had an up-to-date estate plan, with assets allocated, trusts formed, and medical directives on file with their healthcare providers. Proactive planning can certainly preempt a lot of potential stress, and if you can do it, you should. But, this isn’t a lecture about being prepared for the worst. Instead, this is: (1) a reminder that it’s rarely too late for a little crisis planning; and (2) a guide for what kind of planning to prioritize.

Some plan is better than no plan.

In an ideal world, all estate planning would be comprehensive. But comprehensive planning can be time-consuming and potentially expensive, depending on the size of your estate and complexity of your wishes. That is why it is important to remember: there is no rule that says you must plan for everything at once. This means that, provided you are still competent, you can start the estate planning process à la carte. For example: Robert may eventually want a significant estate plan with specific distributions and detailed medical directives, but he is heading out of the country in a few weeks and wants to execute a simple will to leave everything to his wife. That’s perfectly acceptable! When Robert gets back in town and has time, he can amend his estate plan to reflect his original plans. Having some plan in place, even if the scope is limited, allows you to accomplish at least some of your desired goals. Importantly: without a plan, the law has some default provisions that might conflict with your wishes. If you do not have a Will when you pass away, your estate will go through the probate process following the laws of intestate succession. That means that your assets might not get divided up the way you wanted. That’s bad enough, but what happens if you don’t have medical directives?

Everything is important...but Healthcare is most important.

So, what happens if you become ill or injured and lose the capacity to make medical decisions for yourself? In West Virginia, unless you have provided medical directives, state law requires your healthcare provider to select a surrogate who will help make your medical decisions. That surrogate could be a family member, a friend, or even a state agency. The problem: you get no choice, and have no say in your treatment while you remain incapacitated. This is why, in my opinion, executing a combined Medical Power of Attorney and Living Will is the single most important piece of the planning puzzle. As discussed above, without a Will, your property might get divided up a bit differently than you would have liked. But, that is a far cry from having someone else -- potentially someone with different priorities -- make all of your medical decisions for you. With a combined Medical Power of Attorney and Living Will, you provide instructions about:

  • Who will be your personal medical representative(s).

  • Who you want to treat you.

  • What, if any, types of treatment you will permit.

  • Your preferences for long-term care (i.e., assisted living, nursing home, etc.)

  • Your funeral arrangements.

  • Organ donation.

  • Artificial Life Support.

  • and more...

Perhaps the best part of this is that you can secure all of this control and autonomy with a very limited investment of time and money: a combined Medical Power of Attorney and Living Will can be drafted and executed fairly quickly and inexpensively.

If you, your parent, or someone you know is interested in taking this small but important step toward preparing for the future, get in touch with James Legal, PLLC today.



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