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HIV, Personal Planning and Legal Documents

By Mark Scherzer, Esq.

July 2003

Table of Contents

Why should I do personal planning?

If you have HIV, you have higher risks than most other people. You risk having times when you are too ill to work or manage your own affairs. You risk dying younger than others your own age.

If you do not make clear statements in advance about the sorts of health care you want to receive, what you would like done with your belongings, and whom you would like to take care of your business, your personal affairs, and your children, chances are your wishes will not be honored.

How can I do personal planning?

Get help. You need to know what you want to accomplish, but to be effective you should get help from a professional, usually a lawyer, to sign the right documents in the right way. Each state has different rules about what can be done, and each state has different rules about how documents have to be signed in order to be valid.

If you do not have, or cannot afford a lawyer, there are plenty of ways to get help. Many AIDS service organizations (ASOs) have legal staffs trained to help you or to get you in touch with free lawyers. Some bar associations have programs to provide free legal help to HIV+ people. And legal service organizations in many cities have attorneys who can help.

Do I need a will?

Each state has rules about who will inherit your property if you do not have a will. If your wishes differ from the state's rules, you almost certainly need a will. If you have children and you want to name the person who will be their guardian after your death, you also probably need a will.

In a will, you can give different items of property to different people or organizations. You can name trustees to take care of property until someone is old enough to receive it. You can name the guardian for your children. You can name the person who will collect and distribute your property after your death (your "executor"). You can also state how you want your funeral and burial conducted.

Do I need medical directives?

Medical directives, sometimes called a living will, are your statement of what kind of medical care you would like to receive. At times when you are unable to state yourself what you want done, doctors can look at the document to understand your wishes.

Some people do not want to receive any care that will prolong their lives if they are in a permanent coma, have lost most of their mental functions, or will die anyway in a short period of time. Some people object to certain types of treatment or want maximum pain relief. Others want extraordinary measures taken to keep them alive, or to allow them to see loved ones before they die.

All of these wishes can be put in medical directives. You can talk to your doctor about what kinds of situations you might face and try to get an idea of what you would like done.

The best way to insure your wishes are carried out is to sign medical directives. A clear statement in writing will be given a lot more weight than any comment you may have made to a friend or even to a doctor or nurse.

Do I need a health proxy?

A health proxy, sometimes called a medical power of attorney, is a document you can use to name someone to make medical decisions for you when you are unable to make decisions yourself. It is often combined with medical directives, because you may have a clear idea what you want in some situations but may want someone you trust to step in if you face a situation you did not expect.

A health proxy can also be used to say who should have first priority to visit you in the hospital, and who you want to be able to get medical information about you from your doctors.

Do I need a power of attorney?

A power of attorney is a document that names someone to act as your agent to take care of many different sorts of business while you are alive.

The power you grant to that person, who does not have to be an attorney, can be very broad or very narrow. You can name someone to act on your behalf for almost all your affairs, or only in specific areas like insurance or managing your bank accounts.

The power you grant will be good only during your life. You can give the person power to act immediately, or you can say that the agent cannot exercise the power until a doctor says you are unable to act for yourself. The power of attorney can be very useful if you become too sick to manage your own affairs.

Should I nominate a guardian for myself?

A court may appoint a guardian if you become mentally incompetent or otherwise unable to make your own decisions. In many states you can sign a document that specifies whom you would like the court to appoint. This may be important if you fear that a court might appoint a family member to manage your affairs who you do not think would be the right choice.

When should I do personal planning?

Right now. Even though it is difficult to think about serious illness and death when you are feeling well, all HIV+ people should make arrangements for the future by completing documents that express their wishes. Making plans for the future while you are healthy and clear-headed will help you keep control over your own life and protect your loved ones.

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