Is a Will Enough?

Q:   I’m starting to think about the paperwork my family will need if I get incapacitated. Is a will enough? How old do I need to be to do this?

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A:    Heck, no, honey! But be not afraid! There are only 4 essential documents you need to assure yourself and your family that what you want is what you get. And any person 18 and older needs to get this paperwork in order. Seriously.

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First off, Why don’t you have a WILL already? Are you nuts? Almost everybody has something they want to pass along: family photos, your ginger cookie recipe, great grandmother’s cooking fork, or a special rock from the tarmac of the airport in Ireland where the plane refilled but you were out of cash. It may not be money and it may not be much, but don’t let it get thrown out because you haven’t picked a home for it. For tiny estates, like a rock, you might look on-line for a North Carolina-compliant will from a company such as NOLO. Visit their blog How to Make a Will in North Carolina. For anything complicated, get an attorney.

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Second, don’t assume that incapacitated means dead. It doesn’t. It means you aren’t fit to speak up for yourself or handle your affairs (think dementia, stroke, car accident.) Or pay your bills, send in your tax forms, or buy Girl Scout cookies. In order for someone to do this for you you need to figure out who you trust for this job (heaven forbid they buy Samoas). This person will need a DURABLE POWER OF ATTORNEY, a document you should get through an attorney, because THE PERSON YOU CHOOSE WILL HAVE ACCESS TO YOUR MONEY WITH NO SUPERVISION! If you get parked in a nursing home, you want this person to put you in the best you can afford, not a roach motel. Here’s the Durable Power of Attorney form from the NC Bar Association.

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Third, since you are incapacitated, you will want someone to speak to doctors on your behalf. Do not leave your family in the dark about what you want in the way of treatment, especially if there are simmering family issues that might erupt into fisticuffs. A local hospice has had to call in the police to settle arguments like this. To handle the issue of who talks to the doctors and makes medical decisions, you will need a HEALTH CARE POWER OF ATTORNEY. This person needs to be a BULLDOG to stand up to doctors or nursing homes who may want to use you as a money machine or guinea pig, or family members who won’t let you go even when you are clearly gone and not coming back. If you want to cut out unnecessary or unhelpful treatments, tell someone you trust to make it so. Maybe a family member, maybe not. Decide what you want or don’t want and get real clear with your HCPOA and anyone else who might put up a fuss. In North Carolina, the Health Care Agent has one duty after your death, and that’s the disposition of your mortal remains. Please give this some thought so your family isn’t in the position of making these really important decisions without you to guide them. Cremation, conventional burial, green burial, aquamation? Ash scattering? Where? Burial? Where? There are a lot of choices these days that our parents didn’t have. Choose, honey, and let your choice be known. Here’s the Heath Care Power of Attorney from the North Carolina Secretary of State, or you can use one of the combined documents, provided below.

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And last, what do you want medically if you can’t speak for yourself? This is real serious stuff and might be the most difficult to decide, but you have to have a LIVING WILL. These are the instructions for your HCPOA and doctors to guide them on your medical care if you can’t speak for yourself. Do you want to be on a breathing machine? How long? Do you want an artificial heart? Or IV feeding and hydration? What is your definition of “quality of life”? If you don’t know who you are or your spouse or children, is just breathing good enough? For how long? It will likely be impossible to anticipate every scenario, so don’t sweat it. Put the final decision of things you haven’t thought of into the hands of your HCPOA, who will know you and your values, and make the best decision. Here’s the Living Will (Advance Directive for a Natural Death) from the North Carolina Secretary of State, or you can use one of the combined documents, provided below.

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Here are two documents that conveniently combine steps 3 & 4 and are also legally enforceable:

Items three and four can be handled without an attorney. You will, though, need 2 qualified witnesses and a notary public to witness your signature. Everything linked here is free of charge except Five Wishes which costs less than $10.

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See, that wasn’t so bad, was it? Put it on your calendar to start the process. Now. Give yourself a timeline and chip away at it. It’s a gift to your family that no one else can give them.