Hopefully, you’ll never be in a car accident. You still have car insurance, just in case. And hopefully, you’ll never be incapacitated and be unable to make decisions for yourself—but just in case, you should have a power of attorney and health care proxy. They’re essential estate planning documents for all adults. Even an 18-year-old with no assets or dependents should do enough estate planning to create these documents. Having a valid power of attorney means that your financial and legal affairs can be handled by someone you trust. Having a valid health care proxy means that someone you trust can advocate for you and make sure your wishes around medical treatment are honored.
But life is busy, and maybe creating these estate planning documents keeps getting pushed off of your to-do list. What will happen if you’re in an accident or are otherwise incapacitated and don’t have a power of attorney and/or health care proxy?
If you’re unconscious in a hospital bed when your taxes are due, or your home needs to be sold, your loved ones generally can’t do much to help. Without a valid power of attorney, you don’t have an attorney-in-fact who’s legally empowered to act on your behalf. No one can access your accounts unless they’re already co-owners of the accounts.
Every state has its own laws around power of attorney processes. No matter where you live, however, the same thing will generally happen if you’re incapacitated and don’t have a durable power of attorney in place: The probate courts get involved. A probate judge will appoint a conservator to assume the duties that an attorney-in-fact would typically have. Someone close to you may file a request to be named your conservator, which the Court may or may not approve. This can get complicated and tense if multiple people want to be appointed conservator.
This process is not ideal, even if someone you trust is ultimately appointed conservator. Navigating the probate court for any reason is generally expensive, time-consuming and stressful. Now imagine having to do that while a loved one is incapacitated and you’re unable to do anything to help them. Creating a power of attorney spares your loved ones from having to involve the courts in painful personal matters.
As with power of attorney laws, health care proxy laws vary by state. Massachusetts law (Chapter 201D, Section 16) says this about what happens when you don’t have a health care proxy:
“In those instances that a health care proxy has not been executed, nothing herein shall preclude a health care provider from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law.”
Pretty vague, isn’t it? The law provides no further information about who is considered a “responsible party” or what should happen if multiple responsible parties disagree. Let’s say someone is in a car crash and his long-term girlfriend and estranged brother have conflicting opinions about what kind of treatment the patient would want. Which one should doctors listen to?
We’re not medical experts, and can’t speak to the discussions that happen between doctors and patients’ families. But if you don’t have a health care proxy and are in a medical facility and unable to speak for yourself, we do know that your wishes may not be honored. Doctors may ask your spouse or other loved ones what they think you would want them to do. Maybe everyone in your family agrees that you should be kept alive with machines, not realizing that you wouldn’t want that. If there’s disagreement about what to do, and it’s an emergency situation, doctors may do what they think is best. If long-term decisions need to be made, and the family doesn’t agree about what to do, a probate judge may have to make a ruling. Again, things can get complicated, tense and expensive once the courts become involved.
Keep in mind that creating a health care proxy is not just about appointing a person to make decisions for you, or helping your loved ones avoid a legal battle. It’s also about clarifying your own wishes around medical treatment, and creating a record of those wishes. Once you’ve chosen your health care proxy and at least one backup, have a discussion about your decision. Share your general philosophy about what kind of quality of life you would want if you were seriously ill or injured. (Not sure who to choose? Here’s some guidance on selecting people for these roles.)
It’s very possible that you’ll live your whole life without having to utilize your power of attorney or health care proxy. Like insurance, you want these estate planning documents to fall back on if you need them. Decisions often have to be made quickly during an emergency. If you don’t have a power or attorney health care proxy, it can create conflict that hurts your loved ones and even potentially delays your treatment.
Considering how simple Ladimer Law makes it to create these documents, there’s no excuse to put off this piece of estate planning. Instead of worrying about what happens if you don’t have a power of attorney or health care proxy, let’s make sure you do.
What questions do you have about these and other essential estate planning documents? Contact me today!
Jessica Pesce specializes in estate law and elder law. She has helped many people with their estate planning and tax planning since joining Ladimer Law in 2017. Jessica has been named a Rising Star by Super Lawyers three years running.
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Ladimer Law specializes in estate planning. We protect our clients, their heirs, and their assets by listening closely, knowing the law, and executing estate plans that fit and evolve.