ADDITIONAL KEY COMPONENTS OF AN ESTATE PLAN: YOUR DURABLE POWER OF ATTORNEY AND HEALTH CARE DIRECTIVE

A couple of months ago, I discussed the first key component of an estate plan: your Last Will and Testament.  This month I’ll review the other two key components: a Durable Power of Attorney and an Advance Medical Directive.  Just as important as the first key component, the Durable Power of Attorney is a must have legal document that everyone should have.  Unlike your Will, which becomes effective at your death, a Durable Power of Attorney is valid only during your lifetime and terminates at your death.  In general, a power of attorney is a legal document whereby a person (referred to as the “principal”) appoints another person (referred to as either their “agent” or “attorney-in-fact”) to do and perform certain things for the principal during the principal’s lifetime.  A good Durable Power of Attorney is a lifesaver should you become unable to handle your affairs. 

            As long as you are physically and mentally able to handle your affairs, you can do so as you desire (within reason, of course).  If, however, you become unable to handle your affairs through a physical or mental disability or incapacity, it is likely that no one will be able to handle all of the matters that need to be handled for you.  These may include paying your bills, dealing with your mortgage lender, pension provider or social security, handling your life insurance policy, annuity, saving account or tax returns.  There are a whole host of “stuff” that we have to take care of day to day. Think of all that personal business that we face day in and day out to keep our lives, our families and our homes moving forward through life.  Most of that would stop if you were unable to handle them yourself.

            The easiest way to make sure that someone can step in and handle all these personal, business affairs is to execute a good, broad, Durable Power of Attorney.  Without such a legal document, your family is faced with the only option likely available: petitioning the probate court for control over your affairs, which is a costly, time-consuming lawsuit that is easily avoided through your execution of a good, broad, Durable Power of Attorney.  Having this type of legal document can save you and your family a great deal of stress, expense and time should the need arise for someone to handle your affairs.

            The final key component of an estate plan is an advance medical directive setting forth your wishes and desires for medical treatment.  A directive that sets forth who should step in and direct your medical care (another agent) if you are unable to direct what you want at the time a decision needs to be made.  A directive that also addresses end-of-life care should you have a terminal illness or be in a permanent state of unconsciousness should also be included in your directive.  You can execute a health care power of attorney and select an agent to make health care decisions for you and give them broad authority but also direction as to your desires and preferences.  You can state your desires and wishes and direct that your family and health care providers follow your wishes should you be unable to direct your care.  Most people know what they want and have strong feelings about what they don’t want.  Putting your wishes on paper in a proper legal document that has the force and control of our laws behind it helps insure that your wishes will be carried out. 

            South Carolina has two primary types of advance medical directives: the Living Will and a Health Care Power of Attorney.  These documents are different and serve different purposes, so it is important to obtain proper legal advice to determine which one is best for you.  Setting forth your desires regarding your health care and end-of-life wishes is a very personal matter that takes careful consideration.  I encourage you to plan for these events and ensure that your wishes are carried out by executing an advance medical directive of your choosing.  You and your family will be glad that you did.

            In conclusion, making sure that you have all three of the key estate planning components in place should you die or become incapacitated is important for everyone, no matter the nature or extent of your property and possessions and your current health.  These key components provide you with the peace of mind that you have taken care of these important matters for your family and loved ones, that you have put in place your plan to protect your property and affairs for your loved ones, and that you have made it easier for them and have let them know your wishes and desires.  It’s the least that we can do and, sometimes, it’s the most important thing we need to do.

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC  29575.  The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law.  Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com)