The Power Of Advance Directives In Estate Planning

the power of advance directives in estate planning

Advance directives are legal documents that provide detailed information about your medical/healthcare choices and wishes in case you become incapacitated. They can also include information about the time immediately following your death. 

We cannot emphasize how powerful advance directives are in the estate planning journey. 

Detailed Advance Directives Support You & Your Loved Ones In Critical Situations

Not only does a clear and detailed advance directive ensure your wishes about resuscitation, treatment, care preferences, and more, but in the event you can’t make (or communicate) decisions for yourself.

Advance directives cover more than just medical scenarios, although that may be their starting point. Your directives should also include directions regarding things like:

  • Who you designate as your healthcare power of attorney (HCPOA), which you may also see referred to as a medical POA or healthcare proxy. 
  • Where should your children stay or live in the short term while you are incapacitated or if you’re rendered unable to parent them due to long-term medical complications?
  • A do not resuscitate order (if that is your wish due to your age or health condition).
  • A living will outlining your medical choices in various scenarios (usually outlined for you in a high-quality pre-created healthcare advanced directive form). 
  • A designated legal/financial POA (who does not have to be the same as your HCPOA).

While a medical advance directive is a stand-alone document, it is a great springboard to get you thinking about other aspects of your estate planning journey, such as:

  • Guardianship for minor children or those with special needs.
  • Wills.
  • Living trusts.
  • Tax implications of your current and post-death estate.
  • Etc.

Creating a Legally-Binding Advance Directive

Making choices regarding medical treatment – what you want and don’t want – is extremely tender ground. You have to think about the unthinkable and the scenarios that none of us want to experience. 

However, the choices you make – and the person you choose to uphold those (healthcare power of attorney) – should never be forged via verbal agreements. Legal documentation is essential because while your closest family members and loved ones may say they support you now – heightened emotions can completely change how they feel and think if you find yourself in worst-case scenarios.

Here are five foundational steps for creating an advance directive that can hold up in mediation or court (if anyone else were to contest or want to change what’s documented). It can become challenging for loved ones to honor your decisions if they are desperate to keep you alive for their own hearts’ sake or if they ethically disagree with your choices.

Choose your healthcare POA

Your best choice for a healthcare POA maybe your spouse, sibling, or child. However, we encourage you to consider someone outside of your immediate family. 

People change in very unexpected ways when they are faced with upholding difficult medical directive choices—especially when that involves ceasing life-saving measures, taking a person off life support, or refusing treatments that are against the directive’s stated choices. If your family members stand firm and go against your wishes – including your family member-HCPOA – doctors are likely to uphold their wishes rather than yours to avoid litigation.

Choosing someone who can be firm and objective and can bring everyone’s attention back to your advance directive instructions is the most likely way to ensure your wishes are carried out as stated, avoiding emotionally devastating tension, fights, dissension, or legal action.

Find a high-quality, pre-made advance directive form

Your healthcare provider likely has a pre-fabricated form for you to complete, so that’s a good place to start. You can also search the internet and preview form options there. However, if you go this route, make sure to print and make copies of it to keep and share. Sometimes, those healthcare-generated forms get buried in the system and aren’t brought front and center when they’re needed.

We recommend starting with a visit to the Five Wishes website. This organization is dedicated to ensuring everyone has access to an easy-to-navigate, thorough, and legally binding advance medical directive form. Once completed and signed by a witness, this form is 100% legal in California. 

Make copies and share them with everyone

In a perfect world, you’d have a family Five Wishes or an advance directive meeting where you all got them done together. 

Sharing – and reading through – your advance directive is essential to assess your family’s reactions. Some people have a more difficult time than others speaking about the possibility of your incapacitation or a fatal accident/event. Be prepared for that. Emotions are heightened, and people may even get angry or say they refuse to do what you’re asking/requesting. This is important information for further safeguarding and documenting your express wishes and intentions.

Again, this is why selecting the right healthcare POA for your wishes is so critical. Also, have a backup HCPOA stated in case something changes between the completion of your document and an event requiring the use of your advanced directive.

Copies of your completed advance medical directives should be shared with:

  • Your spouse/partner.
  • All healthcare providers (including specialists).
  • Adult children (older teens should also be in on the conversation and have an idea of your choices).
  • Siblings
  • Close friends
  • Neighbor(s) you trust.

The more people who have it, the more likely it is to be brought out as soon as possible so it can be used as a guiding light for your first responders and healthcare team.

Consider adding end-of-life requests

While medical directives largely aim to guide the steps taken – or not taken – during and after a medical event, you can also create an addendum or documentation outlining your end-of-life plans and requests. 

In the event of a sudden or unexpected death, instructions about how you want your body handled after death and any instructions around a vigil, viewing, funeral, or other relevant planning is an invaluable gift to your family. It provides a roadmap in a very difficult place and time.

Review your advance directives (estate plans) annually

Finally, advance medical directives and other aspects of your estate plan should be considered as “living documents.” Each year can bring surprising changes to the people, places, and things in our lives. 

Setting time aside for an annual review of advance directives and other estate plans ensures that the legally binding instructions, financial accounts, and designated representatives still align with your wishes and goals.

Tseng Law Firm Can Help You Complete Advance Directives & Estate Plans

Do you have questions about the best forms to use for your advance directives? Are you experiencing emotional resistance to completing advance directives or other estate planning documents – even though you know it’s got to be done? Maybe it’s time to find an understanding estate planning attorney who can support you through the process. 

Tseng Law Firm has worked closely with Bay Area individuals, couples, and families as they make conscientious decisions about their family’s future and estate plans. Contact us to schedule an exploratory call and learn more about how we can help you leverage the power of advance directives in estate planning.