Many people believe that if testamentary documents are prepared, death must be imminent.
This is simply not true. Testamentary documents are essential for everyone, no matter our financial or health status. They work together to provide for the protection of family, friends and loved ones, which would otherwise be absent at a very difficult time. Because illness, incompetency and death can occur unexpectedly, preparing for these possibilities is important.
Four types of testamentary documents -- wills, financial Powers of Attorney, Advanced Health Care Directives and Hospital Visitation Authorizations -- are provided at no cost to clients by the HIV/AIDS Legal Services Alliance, Inc. (HALSA).
A will is a legal document, drafted and executed in accordance with state law, which becomes irrevocable at your death.
When clients arrive in my office, many ask, "Do I really need a will? I don't have any money and I don't own anything!" My response is always the same: a will can provide for much more than just the distribution of property.
Wills are not only for the wealthy. Even if you think you own nothing, most of us have some personal effects that we have collected. Without a formalized will, these items will be given to your next-of-kin, regardless of who you want to have them.
Next-of-kin includes only those related by blood, such as children, parents, siblings, grandparents and aunts and uncles. At this time, California does not recognize common law or same-sex marriages. Your property, therefore, will be distributed to family members, rather than a partner or friend. It is important to choose your beneficiaries -- those people you want to inherit under your will -- while you are alert, aware and have the capacity to do so.
A will also allows you to name an executor, or the person you appoint who must follow the instructions contained in your will. Your executor is responsible for paying any and all debts and taxes from your estate, managing your property during probate (if any), and for distributing your property to the rightful recipients. Any U.S. resident who is over 18 and legally competent can be named as an executor. The executor can also be a beneficiary under the will.
A will allows you to provide for your final arrangements, funeral instructions and other wishes you may have regarding your death. This may include your preferences regarding cremation or burial, your wishes regarding the disposition of your remains, and who will be in charge of your funeral or memorial service.
Further, a will allows you to nominate the guardian you wish to care for your children after your death. If you do not wish for a child's other natural parent to assume guardianship, you will be asked to indicate your reasons. This is considered to be a "nomination" only, and courts are not bound to follow the parent's wishes. The matter still must go before a court for a final decision. However, if the person named is capable of caring for the children, and if the child's other parent is unavailable or not fit to care for them, the deceased parent's preference is likely to be respected.
Finally, a will is essential in order to make your wishes known to those you love. You can control what happens to your property and remains after you die. This can only make life easier on your loved ones.
Financial Power of Attorney
A Financial Power of Attorney allows you to choose an individual (your "agent") who has the authority to take care of your finances, such as paying bills from your bank account or cashing a Social Security or disability check, in the event that you are alive, but unable to make those decisions for yourself. This power can be granted at either the time the document is executed -- a general POA -- or when a licensed medical doctor declares that you are incapacitated -- a springing POA.
To prevent problems, you should take the financial power of attorney to your bank and any other institution or person with whom your agent is likely to have to deal. If any institution says they would not honor the POA as drafted, you should simply sign the institution's own form. You should also ask the bank to keep a copy of the POA with your bank records.
Advanced Health Care Directives
An Advanced Health Care Directive (AHCD) is the best way to make sure that your health care wishes are known and considered, if for any reason you are unable to speak for yourself. The AHCD has replaced the Durable POA for Health Care, or DPAHC, as the legally recognized document for appointing a health care agent in California. The AHCD allows you to choose an individual (your agent) to make all of your health care decisions for you, in the event that you are unable to make those decisions for yourself. You are able to provide as much instruction as you wish to assist this individual in making decisions on your behalf. Most important, you should discuss all of your wishes regarding your health care with your agent.
The AHCD is also now the legally recognized format for a living will in California and has replaced the Natural Death Act Declaration. It indicates your wishes to a physician regarding life-sustaining treatment, if you are diagnosed with an incurable and irreversible condition.
All valid DPAHCs and Natural Death Act Declarations continue to be valid. Therefore, if your existing DPAHC has not expired, you do not have to complete a new AHCD. On the other hand, a DPAHC executed before 1992 has expired and should be replaced with a new AHCD. Because the new AHCD allows you more opportunity to express your health care wishes, you may decide to complete the new form, even if you previously completed a DPAHC and/or Natural Death Act Declaration in the past. You should at least review your existing DPAHC or Natural Death Act Declaration to make sure it has not expired and that it still accurately reflects your wishes.
Asking your primary care physician to make your AHCD part of your medical records may become crucial in emergency situations, as hospitals may immediately consult your medical record or primary care physician.
Hospital Visitation Authorization
A Hospital Visitation Authorization allows you to specify, in advance, any individuals not related by blood or marriage whom you would always want to be admitted to visit you in a hospital, if you were no longer able to communicate those wishes. Additionally, you may name any individuals who you would never wish to be admitted to visit you in a hospital. This document essentially offers protection to partners and friends who might otherwise be barred from visiting you in a hospital. Without a specific statement, blood relatives would ordinarily get first priority.
It is important to note that hospitals do not always recognize same-sex couples as "family" because of inadequate staff training or other policy deficiencies. A Hospital Visitation Authorization, or a Domestic Partnership Agreement in California, is evidence of your wishes and your relationship and should be respected.
The information in this material is for the sole purpose of providing general information and must not be construed as legal advice. It is not legal counsel; and, the dissemination of the information does not create an attorney-client relationship. While every effort has been made to ensure that the information given is current, the law does change and information given above may become dated. Consequently, you should seek legal counsel for advice specific to your situation before acting.
Funded by the County of Los Angeles, Department of Health Services, Office of AIDS Programs and Policy.
This article was provided by AIDS Project Los Angeles. It is a part of the publication Positive Living.