What is a Living Will?

In Maryland, a living will, also called an advance directive, allows you to specify what sort of care you want if your doctors conclude you are going to die very soon (“terminally ill”). Do you want all measures taken to prolong life? Would you rather avoid what you perceive is a pointless extension of your life since you are going to die soon thereafter anyway? These same questions can be answered in the event that you were to experience a medical emergency such as a heart attack and you were in a permanent coma or in the latter stages of Alzheimer’s. Refusing to intervene medically in those circumstances is also termed “DNR” or do not resuscitate.

What is a Health Care Power of Attorney?

If you are unconscious and in a hospital, who will decide the medical care you will receive?

Typically, next of kin would serve in that role. But what if there is a difference of opinion among your loved ones? Who will then make the decision? If you have not made a selection of a representative or there is a conflict among your next of kin, the realistic answer is that the doctors will. You can avoid this result by signing a Health Care Power of Attorney which appoints individuals in the order of your choosing to make health care decisions on your behalf.

Do You Have a Power of Attorney? Is it up-to-date?

A financial power of attorney is a document which allows someone else to act on your behalf if you are sick or out of the country. This power can be used to pay your bills and access your bank account, for instance. When you hear the term “attorney”, you probably think of a lawyer (also known as an attorney at law). The term actually means “representative” and the power of attorney document allows you to select people of your choice to make decisions for you. If you don’t have a “power of attorney” document and necessary financial decisions must be made when you are unable to make them yourself, your loved ones or others will need to go to court to have a guardian appointed. That will result in needless expense, aggravation and delay.

Is a Living Trust better than a Will?

Some people think that a living trust saves taxes. Not so. The tax man is not dumb. Both probate and non-probate assets (controlled by the decedent) are subject to taxation if they exceed applicable tax thresholds ($5M, federal; $1M, Maryland).

A living trust is a lengthy and complicated document which is expensive to prepare, certainly, much more than the typical will. In contrast, probate fees are paid after one’s death; attorney’s fees for preparation of a living trust are paid up front. Further, a living trust is of no use unless an individual goes to the trouble and expense of changing the names on real estate and car titles as well as various bank and other financial institution holdings.

WARNING:  Many people incur the expense of having a living trust prepared and then do not follow through in changing the title (ownership) of their assets. Without the follow through, the trust in that situation is worthless. A trust without assets is like an empty glass -- there is nothing in it to pour out.

Who Makes a Decision When the End is Near?

A living will, or advance directive, is a document that allows you to specify what treatment you want and don’t want if your health condition is considered terminal or you are in some permanent irreversible condition and are, in essential respects, unconscious. You can direct that doctors do certain things or withhold certain treatment if you are in those conditions. That means that the doctors will be given authority to act independently of what your loved ones might wish – that might be good or that might be bad. On the other hand, you can leave the final decision to your loved ones through a Health Care Power of Attorney you have granted to them to make such decisions.

As a practical matter, the decisions made are not likely to be made known to you or matter when the time comes. The fact the final decisions were made by your loved ones rather than by your doctors might be very important to them.

How Will I Pay for a Nursing Home?

Medicaid (government welfare) was long-used as the preferred way by many of preserving family assets while also receiving necessary care. This was accomplished by what is known as Medicaid planning.  Because of recent changes in federal law designed to tighten eligibility requirements, the advantages of such planning have been greatly reduced. As a consequence, long term health care insurance has become a much more desirable option for serving the same the purpose.

What Makes a Will Valid?

A will, more formally known as a Last Will and Testament, is required (in Maryland) to be in writing and signed by the maker as well as two witnesses. A notary public is not required to sign the will, but it doesn’t hurt. A warning, however: a professionally prepared will would have what is known as an “attestation clause” which is a recitation of language that the witnesses were present when the will was signed by the maker and confirm that the maker knew what he was doing when he signed the will. If this is missing, it may be necessary for the witnesses to be found and present proof that the maker of the will did, indeed, know what he was doing.