Updated: 10/18/2011 11:27 AM ET|
3 must-have legal papers
If you were too injured or ill to make your own decisions, who would do it? A stranger or a greedy relative picked by the state? Don't wait; make your choices known.
Writing about incapacity is one thing. Experiencing it, even secondhand, is quite another.
My father suffered a devastating stroke while visiting his sister in Florida. During the final four months of his life, this once bright, capable man couldn't decide anything more complicated than what color shirt to wear on a given day. Every other decision regarding his life -- what he ate, how his bills were paid and how hard his caregivers should fight to keep him alive -- had to be made by others.
Most Americans don't have wills, but that's not the crisis that many in the estate-planning industry would have you believe. With a few exceptions, which we'll talk about below, most people's quality of life won't be much improved by a will.
That's because your state already has a basic plan for distributing your stuff when you die. You're dead, so what do you care? If who got your compact disc player or your comic book collection wasn't important enough for you to bother with a will while you were alive, it certainly won't matter to you after you're gone.
What your state doesn't have, though, is an efficient way to take care of you if you're still breathing but unable to make your own decisions because of incapacitating illness or injury.
So if you get in a car accident and die, your estate will be distributed more or less efficiently. Get in a car accident and end up in a coma, and you could be in a world of hurt.
Your critical decisions made by a stranger?
Who would pay your bills or wrangle with insurance companies about your care? Who would decide whether to sue that driver who hit you -- or to shut off the respirator that's keeping you going?
The state will eventually find someone to fill these roles, after a potentially costly and time-consuming court hearing. But it might not be the person you would want. So at a time when you're most vulnerable, life-and-death decisions could be made for you by a stranger -- or an estranged, distant or greedy relative.
That's why you need the following documents:
- A durable power of attorney for health care, which lets you identify who will make medical decisions for you. (This is also known as an advance directive or health care proxy.)
- A durable power of attorney for finances, which designates who'll handle money decisions.
- A living will, which tells doctors exactly what kind of care you do and don't want to receive if you're terminally ill and incapacitated. (Some states, including Kentucky, Minnesota, Oklahoma, Oregon, South Carolina, Virginia and Wyoming, combine the living will and the durable power of attorney for health care in the same form.)
Fortunately, you can get these documents, plus a basic will, drawn up by an attorney for $300 to $500 in most areas. You can also buy software, such as Quicken WillMaker, for about $50 if you want to do the work yourself.
Fight over removing the feeding tubes
The point is, just do it. Strokes and accidents don't happen just to other people.
If you need more convincing, consider the case of Robert Wendland, who was severely injured in a 1993 car crash at age 42, sparking a gut-wrenching court battle between his wife and his mother that ended up before the California Supreme Court.
Wendland was in a coma for 16 months before recovering what doctors called "minimal consciousness." He could catch a ball and play with infant toys but couldn't speak, eat, walk, recognize his family or comprehend a Saturday-morning cartoon. Doctors said his condition was not terminal but would never improve.
Wendland's wife, Rose, whom a court had appointed as his conservator, decided he wouldn't have wanted to live as he was and asked doctors to remove his feeding and hydration tubes. Wendland's mother, Florence, went to court to keep him alive. Eventually, California's top court sided with the mother -- a few weeks after Wendland died of pneumonia, after surviving on life support for eight years.
Although courts have allowed family members to disconnect life support from unconscious, terminally ill patients who didn't express their wishes clearly, the California justices were reluctant to set such a precedent for "minimally conscious" patients.
A right to direct your own medical care
Had Wendland created durable powers of attorney or any other paperwork detailing how and whether he wanted life support to be used, the court battle may have been prevented, legal experts said. That's because the U.S. Supreme Court has ruled that every individual has a right to direct his or her own medical care, even if loved ones disagree with those directions.
And let me tell you: Not having clear instructions, or having to fight with other family members over what you think a loved one would want, is pure anguish.
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