Dos and Don’ts of Advance Directives

1. DON’T prepare your own advance directives.

Although clients may believe preparing their advance directives is both cheaper and quicker, there is no assurance the documents are prepared correctly. In addition, by preparing the documents yourself, the template you choose to buy online may not be the correct one for where you reside. Lastly, a client probably does not know the law in the jurisdiction in which they reside, but a licensed attorney does. In Florida, for example, the Power of Attorney law changed extensively in 2011, and now the appointed Agent signs an acceptance of their position as Agent under the Durable Power of Attorney. If a client prepares their advance directives themselves, they may not be aware of how dramatically the law has changed.

2. DO retain an attorney to prepare your advance directives for you.

A Durable Power of Attorney contains powers and rights conferred to the Agent the client designates. If clients prepare a Durable Power of Attorney by themselves, they may give their Agent more rights or less rights than they should.  In addition, by using an attorney, a client is assured their documents are signed correctly and notarized, if applicable. If the documents are not signed properly, they could be unenforceable.

3. DON’T leave the alternate spaces in a Durable Power of Attorney and a Healthcare Power of Attorney blank.

If a client does not appoint an alternate for both Durable Power of Attorney and Healthcare Power of Attorney, the documents may be useless. If a client’s first named Agent dies or becomes mentally incapacitated and the client does not name an alternate, it could be expensive and time-consuming to correct the documents. If the client becomes mentally incapacitated, it then becomes impossible to name a successor Agent.

4. DO name at least two alternates for both a Durable Power of Attorney and a Healthcare Power of Attorney.

One problem that estate planning attorneys often run into is when clients need emergency advance directives due to hospitalization or disability. If the client has sufficient alternates for both their Durable Power of Attorney and Healthcare Power of Attorney, the client will be prepared when a crisis arises. Also, if a client’s first agent and even their second agent dies or becomes incapacitated, the client would still be able to use the documents, if more than one alternate passes away or cannot serve for any reason.

5. DON’T use outdated contact information for the Healthcare Power of Attorney.

A Healthcare Power of Attorney is constructed to easily identify the designated Agent when medical decisions need to be made on a client’s behalf. If the information in the document is outdated, such as an outdated phone number, the client may not have someone to make their medical decisions for them or for the client to even be informed that a medical emergency exists. Many clients find that scenario unsettling because they want their spouse, children and/or siblings involved if a medical emergency arises.

6. DO use correct contact information for the Healthcare Power of Attorney and update it when necessary.

Before you meet with an attorney to have your advance directives drafted, gather all pertinent contact information that will be needed for your Healthcare Power of Attorney and your two alternates. Most attorneys will ask you this information during the consultation, so you will want to have it on hand. By using correct contact information, this will ensure the hospital will call the Agents the client specified and will wait for their authorization before performing any medical procedures.

A client should speak with their attorney on how best to update the contact information on a Healthcare Power of Attorney. Some attorneys may suggest to strike through the outdated information in blue ink, write in the new information and initial next to it. Other attorneys may suggest an office visit to allow the attorney to redraft the document perhaps at a lower charge if multiple changes are to be made.

7. DON’T disregard noting your religious or medical beliefs when your Living Will Declaration is drafted.

A Living Will Declaration addresses issues such as life support and a feeding tube. If your personal or religious persuasion does not recognize the use of heroic measures to artificially prolong life, express those beliefs to your attorney. Many attorneys have documents already drafted that address sacraments or other rituals that may address a client’s religious beliefs.

8. DO speak with your attorney about religious and medical beliefs and how best to incorporate them in your Living Will Declaration. 

The client makes the decisions in what they want included in their advance directives. The Living Will Declaration addresses what measures to take for prolonging life. A client should express what they want for themselves when they are at the end of life and are not able to make their own decisions. This document guides a client’s loved ones to honor the client’s wishes if they are unable to express them, and gives those loved ones great comfort in carrying out a client’s wishes as opposed to making difficult choices on their own.

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