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Overview
It is an absolute necessity for seniors to make specific plans of action for what they want to happen when they die and/or are incapacitated by aging or illness. These plans of action are invaluable to family members, since they provide guidance and strength in times of difficult decision-making situations. There are four essential legal documents that seniors should execute, when they are of sound mind, to ensure that all their wishes concerning their assets and decisions about their health care are carried out: a written will, a Durable Power of Attorney (DPOA), a living will, and a health care proxy.
Written Will
A written will, generally prepared by an attorney, ensures that assets will be divided according to the senior's wishes. A will names an executor or executrix who pays taxes and debts out of the senior's estate and assures that her instructions are carried out. If the senior has no will, the state will decide how the assets are distributed. Along with her will the senior should include several lists: a list of specific bequests, funeral and burial instructions; a list of all important financial and legal documents such as deeds, titles, and insurance companies; and a list of doctors, lawyers, accountants, banks, and financial advisers.
Durable Power of Attorney (DPOA)
This document is signed, witnessed, and notarized when the senior still has the legal capacity to understand that he is authorizing an agent, usually a family member, to make decisions for him. In order for it to be durable the DPOA must say that it is not affected by the senior's future incapacity or disability, which is why the DPOA is so important to have when he can't make decisions on his own. The senior gives his family member the power to act on his behalf regarding residential placement, personal and financial matters, and health care. It is most important to spell out all powers and access the senior gives to the family member, including access to a safe-deposit box. The DPOA should be updated every two to three years before it is actually put into use, by initialing it and having it notarized.
Health Care Proxy and Living Will (Advanced Directives)
Most states require that a DPOA include a health care proxy, also executed when the senior is still competent. This form names an agent (usually a family member) to make decisions for the senior regarding her health when she is not competent to make them herself. The health care proxy authorizes the agent to make health care decisions, to provide consent to or withdraw treatment, and to authorize admission to or transfer from a health care facility.
Both a health care proxy and a living will constitute advanced directives and go hand in hand. A living will makes known what the senior wants to happen when he is faced with a terminal condition. It spells out his desire to refuse artificial life-prolonging measures like being put on a respirator or receiving nutrition and hydration. It also appoints a health care surrogate (family member) to carry out his wishes. The health care proxy gives the surrogate the legal right to enforce the living will. The laws of the state apply to advanced directives. If the senior lives part of the year in another state, he needs advanced directives for both states.
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