Lessons from Marion
Last month my grandmother passed away. She was an incredible woman and our family misses her dearly. While tomes could be written about her amazing life, today’s topic will focus on her departing gift to her family. No, not an inheritance. Her end of life documents.
Life, as they say, is a terminal condition. Unfortunately life rarely gives you a good estimate of when your time is up. For every grandmother who dies in her bed at 98 years, there are teenagers who die in car accidents, middle-aged people suffering cardiac arrest, and people pass away at every age and from every ailment in between.
Because death remains unexpected, planning is crucial. Unlike being charged with a crime, the deceased have no time to get experienced representation to protect their interests. My grandmother was proactive about her final wishes, a lesson we should all employ.
There are two main issues (no esoteric legal pun intended) regarding your death: what happens to you on the way to dying, and what happens to you and yours after you’ve passed away. Both require writing some documents to achieve your wishes. Needless to say, these documents should be done now when you’re healthy, rather than when things get dire.
Before I get into specifics, I need to emphasize the number one rule: communication. Tell your loved ones your plans. Share your documents with them. Keep copies in secure locations. The absolute worst thing that can happen is argument between family members on what the loved one actually wanted. It’s tragic and unnecessary. I’m the first to admit talking about these wishes is not a fun conversation, but better now than never. Communicate with your family. As for specific documents:
Living Will/Healthcare Directive
This document specifies what kind of medical attention you want if you become incapacitated. Options range from none, to minimal, to “heroic” measures. This is, obviously, an incredibly personal choice. I will simply say that the default rule for hospitals is generally to make a strenuous effort to keep a person living. Morality notwithstanding, insurance companies and hospital attorneys don’t really like to see a lot of people dying inside their walls. On a related note, I found this article a very interesting read on the subject. If the article is accurate, medical professions wouldn’t choose these strenuous efforts for themselves. And let’s not forget the Terry Schiavo circus.
Durable Power of Attorney for
A power of attorney gives someone else the power to act on your behalf. A power of attorney can be for healthcare, finances, or anything else. A normal power of attorney expires when the principal (you) becomes incapacitated, e.g. falls into a coma. A durable power of attorney lasts even if the principal becomes incapacitated. A springing durable power of attorney only takes effect if the principal becomes incapacitated.
Regular powers of attorney are useful if a principal will be out of town for months or years at a time, e.g. deployed overseas. For end-of-life issues, a durable or springing durable power of attorney is required. My advice would be to forgo the springing one and just go for a durable power. The reason is that “incapacitation” can be a difficult diagnosis to make, and along the way, your wishes may not be met. Clearly you should vest the power in someone you explicitly trust (and you can constrain the subject matter) but again if the goal is to avoid future headaches, a durable power of attorney document is likely your best bet.
What happens if you don’t have one? Well, how else do you turn off things like internet or insurance while you’re in the hospital? How do you authorize payment for your employees while you’re incapacitated? Granting these powers in someone you trust allows your proxy to maintain your affairs, while also saving you what would otherwise be wasted money. Like a regular attorney, they advocate for your interests.
Last Will and Testament
This is the document most people think of when they think of end-of-life documents. Wills are important, but how crucial they are depends on your family situation.
What a lot of people don’t realize is that a will overrides provisions for property distribution, rather than creating them. In other words, if someone dies without a will (“intestate”), their property doesn’t just evaporate. It’s distributed according to statute. RCW 11.04.015 to be specific. The short version is that all of your community property and half of your separate property to your spouse, and the other half of your separate property to your descendants. It gets more complex after that. But if you’re happy with the distribution of your property outlined in the statute, you don’t really need a will.
However, where a will is really required is when you have minor children. Your will is the place to establish trusts and so on for your kids, but more importantly, it establishes their new guardians if you die while they’re still minors. If you want your kids to be raised by someone you like and respect instead of someone you don’t, your best bet is to get it written down in a will. You can imagine potential consequences if multiple family members fight over custody, which can certainly happen if a piece of the estate goes with the kids. It’s protracted, expensive, and brutal for the kids.
Finally, be sure to revisit and update your will on occasion. Having another child is a great time to do so. You should also check with your named guardians from time to time to make sure they still want to, and if their life circumstances would still promote a good environment for your kids.
The above documents have technical requirements to be effective, although courts generally interpret them broadly in order to effectuate their author’s wishes. But nothing stops someone from creating a document that outlines any other wishes a person may have for their end-of-life decisions.
My grandmother did this. She composed a wonderful book for her family regarding her wishes after her death. She used it to discuss how she wanted her funeral conducted, suggestions on easing the transition of her personal effects, and in general giving comfort to her loved ones. Here’s a picture:
Depending on your situation you may create a similar document. Nothing prevents anyone in the world from creating a similar book. Again the rule is to try to effectuate an author’s wishes. Write what you want and share those wishes with your family, and you’ll have the best likelihood of making that happen.
Grandma Marion made what was a difficult time a little less so. As she’s done for all her life, she proactively determined what she wanted and put in the effort to make it happen. She was a loving person and will be missed.