By Lane V. Erickson, Idaho Estate Planning Attorney
When it comes to talking with people about their estate planning we often find there is a good deal of confusion about what the different estate planning documents can accomplish for them. This is understandable because most individuals are not experienced with estate planning or have any legal training that would help them understand what estate planning is and how it helps them. We believe that our job as Idaho’s premier estate planning attorneys is to provide this information to our clients so that they can understand how their estate planning will help them, their family, and loved ones both while they are alive and after they pass away.
The purpose of this article is to describe the differences between two specific estate planning documents. These documents include the power of attorney, and the living will. If you find that you have questions about these two documents and how they can help you and your family, don’t be too worried about it. Our team of Idaho estate planning attorneys have experience and can help you. Our knowledgeable and skilled Idaho estate planning team includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Below is a short description of the differences that exist between these two documents and how these two documents are designed to help protect you and your family while you are
Difference 1 - What They do for You and Your FamilyThe first major difference between a power of attorney, and a living will, is how these documents actually help you. Before describing what these documents are specifically designed to do, I will simply state that both documents are done in writing, and should be completed by a qualified estate planning attorney so that when these documents are needed they actually accomplish what they are designed to do.
There are two different Powers of Attorney documents that exist as part of the basic estate plan. The first is a durable power of attorney, which is designed to cover all of your property and finances while you are alive. The second is a power of attorney for health care. This document is designed to ensure that you will receive good health care during your lifetime.
Both of these documents become effective if you lose legal capacity to make decisions for yourself. For example, if you have Alzheimer’s disease, or some other injury or illness that makes it so you can no longer make decisions about your finances, property, paying bills, or other daily life events, your durable power of attorney give you the ability to name other people who will make these decisions for you. Likewise, your health care power of attorney will give you the ability to name somebody who will make medical decisions for you if you are no longer capable of making them for yourself. This would include the doctors that you see, the medicines that you take, and the medical procedures that you may receive.
If you do not have these power of attorney documents, your family will be required to do a guardianship proceeding for you through the courts. When a guardianship proceeding is done, the courts, rather than you, make the decision about who will be appointed to take care of you and your property and finances. Guardianship proceedings are expensive usually costing several times more than what a complete estate plan would cost you to obtain. Most importantly, guardianship proceedings often lead to family fights. The reason for this is that family members may not agree on who should be appointed by the court to be your legal guardian. Several family members may all believe that they are the best person to do this for you. As a result, a legal fight may take place before the court makes a decision about who should be appointed as your legal guardian. The bottom line is that through your estate planning you get to make these decisions yourself. If you have no estate planning the courts make these decisions for you.
A living will is even simpler. The purpose of a living will is to give you the ability to leave specific instructions to your doctors and other healthcare providers about what you do want and what you do not want to happen if you are in a terminal condition and you are on life support machines. If you do not have a living will, this decision falls on the shoulders of your family members. Again, your family members may not agree on what should happen in this circumstance. As a result, if you have a written living will, you yourself get to make this decision rather than having it fall on the shoulders of some other person.
Difference 2 - When They are Legally EffectiveThe second main difference between powers of attorney and a living will is when they become effective. As was set forth above, a power of attorney becomes effective if you lose legal capacity. Capacity is a word that lawyers used to define the legal ability to make specific decisions about your money, property, assets, and daily life affairs. This would include having the ability to make decisions about your own medical or health care treatments. If you lose capacity, through an injury or illness such as Alzheimer’s disease, then your power of attorney becomes effective. Once it is effective, the person who holds your power of attorney has the legal ability to go forward and to make decisions for you that you would normally make for yourself.
Alternatively, a living will does not become effective simply because you lose capacity. This is because even if you had Alzheimer’s disease, this does not necessarily mean that you are in a terminal condition. In other words, your mind may not be working right, but your body may still be functioning. You may simply just need somebody to help care for you. A living will becomes effective only when you are in a terminal condition, and you are on life support machines. It is in this circumstance that the instructions that you leave in your living will must be followed by the doctors and other healthcare providers that are treating you. If you say that you want them to turn the machines off, so that you can die a normal and natural death, this is what they will do. Again, if you do not have a written living will, this decision will then fall on the shoulders of your family and other loved ones.
Difference 3 - Who Needs These DocumentsThe final thing to discuss about these two documents is who needs them. In this instance there really is no difference. Everyone should have A durable power of attorney, a power of attorney for health care, and a living will as part of their basic estate plan. Again the reason for this is that it’s possible that every individual could go through a condition in their life that would lead to a need for these two documents to help them. It is far better to have these documents as part of your estate plan and never need them, rather than needing them and not having them. It is for this reason, that we include these documents as part of every basic estate plan.
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com. We will answer your questions and help you solve your Idaho Estate Planning problems.