Who Talks When You Cannot?

By Margaret Mitschke* Last will and testament document

Death is a sensitive subject. Often times, it is the last thing anyone wishes to discuss. However, a person’s last wishes usually affect their family, friends, and loved ones’ lives long after they have passed.

This is because after a person passes away, the ones they leave behind are the people who must make many final decisions for them. The same goes for individuals who are still technically alive, but have become unable to make their own decisions. What are the different forms that deal with situations like this? Moreover, how can these documents help you as a SHSU student?

There are six main documents that deal with situations like this. They include a last will and testament, a statutory durable power of attorney, a medical power of attorney, a directive to physicians and family, a HIPAA release, and an appointment of agent to control disposition of remains. To see what information was needed, and how Student Legal and Mediation Services could help me complete these documents, I made an appointment to get these documents created myself. The following is what I learned throughout the process:

A last will and testament is a way for you to say who you want to be the executor of your estate, or who you want to take control of your estate. The executor’s powers include settling debts, and having power over settling, selling, disposing of, and handling of your estate. For a will you should identify any immediate family you might have, and you can then decide who should take care of any minor children. You also name who you want to be the beneficiary of any possessions you have, including specific requests for individual items.

When I went in for my appointment, I was concerned that I did not have enough belongings or an estate to constitute having a will, but it turns out that this okay. Your will does not have to be long, and you do not need to have a large estate or belongings to create one. All I needed was the information for who I wanted to be my executor and beneficiaries, including addresses and phone numbers. However, not having this document can cause several difficult issues to arise. If an executor is not named by you, then the court will appoint an administrator for your will. This is a person the court chooses, and could end up being someone you did not like or trust who would then have control over your final expenses and belongings. This can also cause family conflict, since more than one individual could believe they are the one who should be the administrator. Also, since the court decides who the administrator is, the court oversees the distributing and handling of the estate, and will add on more expenses.

A statutory durable power of attorney is a document that names who you want to act as your agent in financial and legal matters should you become unable to make decisions yourself. This is a document that is only viable if you are living, but become incapacitated or make the decision to hand over your power of attorney at another time. A statutory power of attorney can handle matters including:

  • Real property transactions;
  • Tangible personal property transactions;
  • Stock and bond transactions;
  • Commodity and option transactions;
  • Banking and other financial institution transactions;
  • Business operating transactions;
  • Insurance and annuity transactions;
  • Estate, trust, and other beneficiary transactions;
  • Claims and litigation;
  • Personal and family maintenance;
  • Government benefits, including social security, Medicare, etc.;
  • Retirement plan transactions; and
  • Tax matters.

However, whoever you appoint to be your statutory power of attorney does not necessarily have to have the power to handle all of these issues. In fact, you can name specific matters that you want them to not handle, should you wish. All I needed for this document was the name and information for whom I wanted to handle these matters. Without a statutory durable power of attorney named, should you become unable to make decisions for yourself, then family conflict could arise since no one person was chosen. Also, this document specifically details that the agent should act in good faith and act loyally for your benefit. If these financial and legal matters are not handled, then extra costs could arise and burden your family as well.

A medical power of attorney document is similar to a statutory power of attorney. However, the agent that is named as your medical power of attorney handles any health care decisions that might have to be made, should you become unable to make the decisions yourself. Should you become able to make your medical decisions again, then the agent is no longer in effect. Again, all I needed for this document was the name and information for whom I wanted to be my medical power of attorney. Just like with the statutory power of attorney, if you do not have document naming the individual you want to make medical decisions for you, this can cause conflict in your family, and often confusion on what your medical wishes may be.

The directive to physicians and family or surrogates allows you to list exactly what medical treatments you do or do not want, should you become unable to communicate these wishes. In this directive, you can say what medications, treatments, or operations you are okay with having. You can also state whether or not you want life-sustaining treatment if you are suffering from a terminal conditions. For this document, I needed to know what treatments I was and was not okay with. Without this directive, then these decisions about treatments and operations would have to be made by family members who may not agree with each other. They can also add additional costs and financial burdens to your family, should they consent for operations you may not have wanted.

A HIPAA Release, or an authorization to disclose protected health information, allows for your medical records to be released to specific individuals. Under normal circumstances, medical records, test results, genetic information, and other medical information are not disclosed to others. However, in certain situations, this information can be important when it comes to making medical decisions. If you cannot make these decisions yourself, then allowing your medical information to be shared with someone will allow them to make informed decisions about what health care treatment you should receive. I needed the name(s) of whom I wished to have my medical information disclosed to, but no other information.

The last document is an appointment of an agent to control disposition of remains. In this document, you list two main directives. First, you give directions on what you want to happen to your remains when you pass away. This can include a number of things, and can be as detailed as you want. Some final instructions can include embalming, cremation, organ donation, or even the donation of your body to science. Sam Houston State University actually has a stafscenter where donated bodies are used for forensic research called the Southeast Texas Applied Forensic Science Facility. Second, you name the agent that you wish to have carry out your directions. These were the only pieces of information I needed for this document.

Without these specific instructions, then your family will be left to decide what you may have wanted. Also, there may not be a single member who believes they know what you may have wanted, but possibly many different members.

All of these documents are independent of one another, and do not necessarily need to be completed together. However, all of them can work together, listing specific directions that you may have for family members about your belongings and about yourself. Without them, your family could be forced to make hard decisions without specific knowledge about what you would have wanted. The lack of knowledge can also result in extra expenses, or your final affairs being handled by someone you did not intend or wish to be handling them. Even though death can be a hard topic to discuss, we can greatly lessen the burden on those we leave behind by being prepared.

As an SHSU student, you have access to a full-time attorney on campus to help you with a variety of legal matters. If you are interested in having these documents drafted or reviewed, please feel free to contact us and make an appointment at (936) 294-1717 or go online at http://www.shsu.edu/dept/student-services/legal/ to schedule a free consultation with our attorney.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s