With all that is taking place in our nation at this time, we at the William E. Hesch Law Firm, LLC are trying to emphasize the importance of executing your Financial Power of Attorney, Health Care Power of Attorney, and Living Will so that your family can manage your finances and make your health care decisions if you are disabled or incapacitated.
These three documents are often overlooked by most individuals since 50% of people die without a will. However, if you become disabled or incapacitated without these documents, then your family must go to the probate court and get appointed your guardian in order to manage any assets in your name (e.g. IRA, 401K, etc.) or make your health care decisions.
The guardianship process is an administrative nightmare for family members, and just ends up generating hefty attorney’s fees especially in Hamilton County Ohio. First, you have to get a guardian appointed, and then the Court sets a monthly budget and the Guardian needs to get court approval every time an extra expense not in the budget occurs. Additionally, you must keep an annual accounting to document with a receipt every dollar you spend. Also, it is a requirement in Hamilton County Ohio that you have an attorney co-sign on every check that you write.
The Financial Power of Attorney is a powerful document that is not costly to create, and it allows whoever you designate to access your assets in order to pay your bills and take care of your finances. Your family member or friend who is appointed your power of attorney (POA) will be able to take this document to the bank and get listed on your account as your power of attorney. This allows the POA access to the account without court involvement. Obviously, this is a powerful document and you would only want to designate someone you trust, but it makes things a lot easier on your family.
It is also just as important to execute the necessary health care documents. It is important to note, that in Kentucky the Health Care Power of Attorney and Living Will are combined into one document. In Ohio, they are two separate documents. You always need a Health Care Power of Attorney, because if you became sick and temporarily unconscious or incapacitated, you would need to designate a health care POA to make medical decisions if you are unable to do so for any reason. The Health Care Power of Attorney allows whoever you designate to make those health care decisions on your behalf.
The Living Will is needed when you are either terminally ill or permanently unconscious and at least two physicians have determined that life support and a feeding tube is not going to help you get any better, rather they will simply prolong the process of dying. In that situation by having a Living Will, you are directing your doctors that if you are terminally ill or permanently unconscious that you do not want life support or a feeding tube and you do not want your family to have to make that decision. If you only have a Health Care Power of Attorney in Ohio, and no Living Will, then you are saying that you want your family to make all of your end of life decisions. If you know that you don’t want life support in those situations, and you do not want your family to have to make those decisions, then you need the separate Living Will document in Ohio. In Kentucky, the section for the Living Will is included in the Health Care directive.
In practice, we have seen those instances where families only had a Health Care Power of Attorney, because they thought they would be able to make those end of life decisions for a spouse or parent and it ended up being very difficult for them. It is important to keep this in mind when making these estate planning decisions.
Another thing to be aware of is the grey areas, which come up more often. For example, you are not terminal or permanently unconscious, but your heart stopped. In this situation would you want to be resuscitated using paddles, use medication to restart your heart, or would you want a DNR? Although it may be difficult, these are conversations we advise you to have with your doctor and family members so that they know what you would want in these various situations.
(Legal Disclaimer: Bill Hesch submits this blog to provide general information about the firm and its services. Information in this blog is not intended as legal advice, and any person receiving information on this page should not act on it without consulting professional legal counsel. While at times Bill Hesch may render an opinion, Bill Hesch does not offer legal advice through this blog. Bill Hesch does not enter into an attorney-client relationship with any online reader via online contact.)