Having a good death means making your own choices (when feasible) about your end-of-life experiences, rather than leaving them in the hands of someone else. In addition to your medical wishes, you can also leave directions for what happens to your body and your possessions after you die. Specific paperwork is necessary to ensure these wishes are followed and to remove the burden of difficult decision-making from your loved ones during their grief. Creating and saving these important documents is relatively straightforward; however, for some, you'll ideally want the involvement of a lawyer. Please note that this column does not offer legal advice; you are encouraged to identify and work with a trusted attorney to ensure that everything is filed and stored correctly. Laws and regulations also differ from state to state, so it is important to confirm them.
While You Are Alive
While you are alive, there are three documents you’ll need to be sure your preferences are followed when it comes to your medical care, and that your business affairs are taken care of if you are unable to do so yourself. They are:
Health Care Proxy Form: This names the person or persons who will make medical decisions for you if you are incapacitated and can't make them yourself. This can be a complicated choice, less straightforward than it might appear on the surface. In many states, there is a hierarchy that the medical team must follow if you haven't specifically named a Proxy – spouse, children, parents, etc. – but please think about whether your next of kin will be able to follow through with your wishes if you decide not to name a proxy. Some children and spouses are emotionally unable to withdraw life support or refuse other attempts to extend your life, so if this is something you would elect in certain circumstances, please consider who you are naming as your Proxy. Many people name a friend or more distant relative to be their Proxy – there is nothing wrong with this.
Living Will/Advance Directive: This lays out your preferences for medical treatments and interventions for your Proxy to follow if you are not able to make them for yourself. Many documents (such as the popular Five Wishes living will) combine both the Proxy and the Living Will into one. Again, this is more complex than it might appear. You might think you would never want to be on a ventilator, but what if there was reason to believe you might be able to breathe on your own eventually? The same with dialysis – many of these interventions we recoil from theoretically are sometimes used as temporary therapies to restore full function. Your living will/advance directive is where you will articulate such choices.
You can search the internet for state-specific forms for your Proxy and living will/advance directive. Although you don't need an attorney to be involved, you will need witnesses and sometimes a notary.
Power of Attorney: This designates someone to manage your business affairs (including making payments for your care) if you are unable to do so. Your power of attorney can pay your rent or mortgage, bills, and car payments; and can pay for you to go to a private rehab facility rather than going to the one your insurance company picks for you. PLEASE NOTE: while you may choose the same person to be both your healthcare proxy and your power of attorney, the privileges are not automatically reciprocal. You need both to fill out both forms.
It is highly recommended that you use a lawyer to draw up this form. Powers of attorney can be all-encompassing, and you may not want to relinquish total authority. Many lawyers will offer a package price for these three forms and the next three as well.
After You Die
Once you die, all the above documents become null and void. Your power of attorney does not automatically become the executor/executrix of your will, nor does your named healthcare proxy automatically control your disposition (what happens to your physical body after you die). You will need the following additional forms to be sure your wishes are followed:
Will: I am sure you have heard many a cautionary tale of prominent public figures who died without a will. Aretha Franklin's estate was partially settled after 5 years of litigation, which cost the estate an untold amount of money in legal fees, not to mention the family discord that resulted. In the most basic terms, your will lays out who you want to leave your belongings and your wealth to. When you die, your assets go into a process called 'probate,' which is defined as "the legal process through which a deceased person's will is validated, and their assets are distributed according to their wishes or, if there is no will, according to state laws." Probate takes some time but moves much more swiftly if you have a will. The regulations around wills and settling probate can be quite complicated. You can simplify this process by naming beneficiaries for all your bank/investment/life insurance accounts and putting cars and real estate into joint property ownership with your spouse/partner/child while still living. Such assets will avoid the probate process and transfer directly to the beneficiary or joint owner in a matter of days.
Please ask an attorney what kind of will is best for you. While there are many online resources for creating your own will, if you can afford it, it is best to go through an attorney, who will be very familiar with the state laws regarding probate.
Trust: You may also want to create a trust in addition to your will. Again, this is a conversation to have with an attorney. Trusts may be useful for avoiding estate taxes or controlling the flow of inheritance funds if you are leaving money to someone who you fear may not spend it responsibly. Trusts are usually revocable (can be revoked) during your lifetime and become irrevocable (cannot be changed or revoked) after you die. You may also want to consult with an attorney about a Medicaid Trust, which is a way of sheltering your estate from Medicare clawbacks. Again, this is complex and can vary state by state.
Agent to Control Disposition: This is a form that names the person who can claim your body and make funeral arrangements for you if you do not want your next of kin to do this. In some states, your healthcare proxy is also authorized to do these things, but please check. This form is essential if, for instance, you are legally separated but have a new partner who you want to make your funeral arrangements, or if you are estranged from your family and want a friend to do it. There are disturbing stories of bodies that go unclaimed for months because the legal next of kin cannot be located or refuses to claim the body. It can be very painful for friends and other family members who cannot step in to help.
Where to Store
If you use an attorney to draw up these documents, the attorney can hold the originals and give you certified copies. Attorneys must follow laws and regulations regarding storing such documents, so you can feel confident they will be well protected. You can also store your documents in a secure document cloud and give certain people access to them, always letting them know how to access the originals if necessary. You should keep copies for yourself and give your health care proxy, your power of attorney, and your disposition agent (if you elect one) copies so they know their responsibilities in case they must step in. You may not want to give your executor/executrix copies of your will or trust, but you can and should let them know in advance that they are named so they are prepared.
Lastly…
Always ask someone's permission before you name them to one of these responsibilities. It really pays to talk with your healthcare proxy about your care wishes beforehand – again, to relieve them of the burden of difficult decision-making during times of stress and grief.
Completing or updating these documents if you already have them will give you great peace of mind. Once you've drawn them up, decide how often you will review them to ensure your wishes are current. Always check to see if your documents need to be revised in the case of divorce or the death of a named party.
Congratulations!
It cannot be stated more strongly that in addition to giving a gift to yourself, it is also a gift to your loved ones to do this kind of preplanning and documenting. It saves them from making heart-wrenching choices and decisions during a stressful and sometimes tragic time for them. It is up to you to do this work for yourself, even if it feels uncomfortable, rather than burdening someone else with it. When done, congratulate yourself! You have taken a significant step towards a good death.
