In the final days before or shortly after a loved one’s death, you may be asked to guide or authorize important decisions. Here are end-of-life documents to look for, what they do and what to expect if they don’t exist.
Advance directive
An advance directive appoints someone to make health care decisions for another and offers specific guidance to that person regarding end-of-life care decisions. These documents are commonly known as a “health care power of attorney,” although they may have a different title in your state.
If you are appointed to make serious health care decisions for another, you need to act according to that person’s requests. If these issues weren’t discussed, you need to act according to what you believe that person would really want done in that critical time. Often there is not a lot of time to weigh alternatives. Important questions to consider include:
- What loss of function would make life too burdensome for this person?
- What procedures would be simply out-of-bounds for this person to have to endure?
- What values guide this person’s health care decision-making?
If advance directives don’t exist, then state law determines who makes those decisions for your loved one if he or she is unable to do so. Typically, state law sets an order of succession in which family members will receive authority to act, specifies the procedures for confirming each family member’s authority and suggests the procedure for resolving indecision among family members within the same level of priority.
Durable power of attorney
You may be appointed as agent in a durable power of attorney. After proving your authority to act, you will be able to access your loved one’s accounts. State laws and the terms of the durable power of attorney will determine when your authority ends.
Power of attorney — account specific
If you are appointed as the agent with power of attorney rights for specific accounts, both you and your loved one have access to the accounts as long as no changes were made in the title. State laws and the terms of the specific power of attorney will determine when your access ends.
Joint account
If you and your loved have a joint account listed in both your names, you may freely access the account before and after your loved one’s death. As a joint account holder, you are free to treat the account as your own after your loved one’s death. If this is an account your loved one wants available for post-mortem and pre-probate costs, they may want to consider keeping only sufficient funds available (e.g., $5,000).
Revocable trust
If your loved one has a revocable trust in which he or she is named as the trustee and you are listed as a successor trustee, you will become the trustee upon your loved one’s incapacity or death.
If adequate arrangements have not been made in advance, and the financial affairs for your loved one need to be managed during their incapacity, then guardianship or conservatorship proceedings could be necessary. Be aware that these proceedings may be costly and time consuming, and may result in appointments of persons as guardians or conservators based on family rank rather than ability or availability.
A special note on organ donation
If your loved one has indicated that he or she wants to donate organs or tissues after death, you are obliged to follow those requests, regardless of your personal beliefs. If preferences in regard to organ donation are not made, state laws permit certain agents and relatives (in a specified order of priority) to make those decisions. Check out more information at organdonor.gov.
