Idaho Law Blog
By Lane V. Erickson, Attorney
Most people believe that estate planning only deals with giving your property away after you die. It’s easy to see why most people have this misunderstanding. Giving away property through a Last Will and Testament is what the media tends to focus on. The reality is, estate planning has more to do with you while you were alive than with dealing with your property after you have died. The two most powerful documents that will affect you while you are alive are part of a basic estate planning package. These include a Durable Power of Attorney and a Living Will and Durable Health Care Power of Attorney.
1. Durable Power of Attorney
A Power of Attorney is a written, legal document where you give to the person you choose the power to act in your place. A Durable Power of Attorney simply means that the document stays in effect if you become incapacitated and unable to handle finances and other matters on your own.
The classic example of where a Durable Power of Attorney is needed is when a person has Alzheimer’s disease. In this situation, the person’s body is healthy but their mind has deteriorated to the point where they can no longer take care of their own property, finances, or even make simple decisions. Without a valid power of attorney your family will be required to go to the courts and seek the appointment of a guardian. This can be a costly action to take and can lead to disagreement and fighting within your own family about who should be appointed.
With a valid Durable Power of Attorney, the person you name will be legally permitted to take care of important matters for you without being appointed by a court. The things a person who holds a valid Durable Power of Attorney can do for you include: caring for your property, paying your bills, and managing your investments. Every person should have a Durable Power of Attorney.
It’s important to understand that you can specify when your Durable Power of Attorney becomes effective. You can specifically state that your Durable Power of Attorney will not go into effect until a doctor certifies you as mentally incompetent. You can also name a specific doctor(s) who must certify your mental state before your Durable Power of Attorney becomes effective.
2. Living Will & Durable Health Care Power of Attorney
The second document that every person should have to care for themselves while they are alive is the Living Will & Durable Health Care Power of Attorney. In Idaho, this can actually be one document that serves to specific purposes.
First, the Durable Health Care Power of Attorney portion of the document allows you to name a specific person who will make medical decisions for you if you are unable to do so for yourself. These decisions would include: the doctors that you see, the types of medications that you take, the medical procedures and care that you receive, and also any medical facilities or long-term health care facilities that you may live in.
Second, the Living Will (sometimes known as a Do Not Resuscitate (DNR) or Health Care Directive) allows you to provide specific directions to your health care providers about whether you want to be kept alive artificially or not. Most people are concerned about giving these kinds of instructions but they need to understand that a certain set of circumstances have to exist before the Living Will becomes effective. These circumstances are:
- You must have a terminal condition;
- Your death must be imminent; and
- You cannot communicate your desires directly to your health care providers.
The main idea behind a Living Will is to take the decision about the ending of your life off the shoulders of your loved ones. It gives you the opportunity to specifically decide what you want right now while you can make that decision and can put it in a written direction that your medical providers must honor.
So while it’s true that Estate Planning does in fact include a Last Will and Testament, the two more important documents for you that will affect you while you are alive are you are Durable Power of Attorney, and your Living Will & Durable Health Care Power of Attorney. We recommend that everybody get these two documents so that they can have the maximum ability to plan for their own lives.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your Idaho Estate Planning questions and will help you solve your personal estate planning needs.