Choices When Making an Estate Plan: Part One

Written by Jim Worthington on February 17, 2019

This article begins a four-part series on the choices you must make to complete a comprehensive estate plan. For those, who can’t wait that long, the website includes all of this information in a white paper. 

The first stage of a comprehensive estate plan is planning for disability. The two documents you need are a power of attorney and a health care directive, which combines the health care surrogate and living will directive. This article discusses what you should consider when naming the people to make choices for you under these documents when you are not able to make decisions yourself. If you’re married, you will usually name your spouse to fill these roles so you’re likely choosing alternates to serve if your spouse can’t. 

Because of my experience, I’m able to provide some insights to help you make these decisions and have included those insights in this discussion of the following decisions you will need to make. 

Who Will Make Financial Decisions for You if You Can’t? 

In your power of attorney, you name an agent (also called an attorney-in-fact) to manage your financial affairs if you are not able to do so for yourself. This can be the result of a short-term, pleasant occurrence such as a vacation abroad, or a long-term, regrettable occurrence such as a devastating illness. The agent will have access to your bank accounts and may be able to make gifts or set up trusts on your behalf.  Your agent can do almost anything you can do except agree to your marriage or make a will for you.  

The agent’s role can be as limited in duration as signing a real estate deed on your behalf at a particular closing or as long-term in nature as managing your finances during a lengthy nursing home stay.  

Many clients are very concerned about picking an agent about whose honesty and integrity they have no doubts. It is also possible to design a trust so that a trustee can serve during your lifetime and fill these same roles if you are disabled. The choice of that lifetime trustee would be subject to the same parameters as the choice of agent. 

Who Will Make Health Care Decisions for You if You Can’t? 

Your health care surrogate makes decisions about your healthcare, including whether or not to terminate life-sustaining treatment in the event of a terminal condition when you are not able to make that decision for yourself. The medico-legal term is when you lack decisional capacity. Your health care surrogate may also consent to donation of your organs. None of us cares to imagine the terrible situation in which this decision might have to be made. Your health care surrogate must use his or her best judgment and make a decision that he or she believes you would have made for yourself. Your health care surrogate should thus be someone with whom you are comfortable talking about the types of care you do and do not want. The health care surrogate’s role is often a short-lived, but emotionally draining, one. 

Common Themes

It is usually better to name one person to fill each of these positions rather than to name two or more people to the same position. In other words, I do not recommend co-agents or co-surrogates. These difficult decisions are not well-suited for decision by a committee. Naming one person does not mean he or she can’t get input from others in your family.  

In fact, many people find themselves naming the same person to many or all of the roles. This should not be a concern because one thing that families do for each other is to take care of each other during difficult times. Any concern about overloading someone can be reduced by attention to the next step. 

It is best to ask a person about filling the role before naming him or her. Along the same lines, you should not be concerned that naming one person will hurt an omitted person’s feelings. If the omitted person is not up to the task, you would not be doing him, her, yourself, or anyone in your family a favor by giving that person a task beyond his or her abilities. 

I hope this discussion helps start you thinking about the important decisions when making your estate plan. It is not meant as legal advice for your specific situation but as a starting point for a live conversation as part of your legal representation.