Types of Wills and Their Importance

If a family member suddenly becomes too ill to act on his or her own behalf, family caregivers may lose access to the patient’s finances and health care decisions, unless certain legal documents are already in place. These documents are the cornerstones of health care planning:

• Durable Power of Attorney,
• Living Will,
• Health Care Proxy,
• Do Not Resuscitate Order (DNR), and
• Last Will and Testament.

Senior and other family caregivers should consult an attorney specializing in elder law who will prepare these items and advise families on additional planning tools, depending on their circumstances. It is preferable to prepare these documents before illness strikes.

Durable Power of Attorney

This document is essential for seniors because it allows a person to appoint another individual to act on his or her behalf with respect to financial affairs. The Durable Power of Attorney differs from a regular Power of Attorney in that it stays in effect even if the person granting it becomes mentally unable to act on his or her own behalf, making it an essential tool for family caregivers.

Health Care Planning and the Living Will

A Living Will may be called various other names, including, but not limited to:

• Advance Directive
• Health Care Declaration
• Medical Declaration
• Health Care Directive
• Medical Directive

A living will is a legal document that specifies what life-sustaining treatments you do or do not wish to have utilized if you are unable to make decisions for yourself. This may include devices such as a ventilator (breathing machine), feeding tubes, certain medications, dialysis, and other treatments that might be started in the event that you should stop breathing or your heart stop beating or various other life-threatening conditions. This document has the potential to decrease arguments between or uncertainty of family members who are next of kin if they are making medical decisions

If certain treatments are not wanted, this can cut down on unnecessary medical expenses. A living will does not mean that you will not receive care. The only care that should be affected is that which is specified in the document. In some instances, a shift of focus from curative to palliative care occurs, in which comfort measures take the place of data collection and aggressive treatment. A living will cannot predict every type of treatment that might be indicated but does cover the most likely treatments utilized in life-threatening situations.

Senior Caregivers and the Health Care Proxy

A Health Care Proxy is a legal document people use to grant authority to another adult to make healthcare decisions for them in the event they are unable to make those decisions themselves. This document must be prepared while the people granting the authority are still mentally competent to do so.  Only one person can be given authority so that the difficulties of joint decision making are avoided. However, an alternate person may be designated at the time the Health Care Proxy is prepared in the event the first person is unable or unwilling to serve.

The designated person has the power to make all health care decisions for the patient. However, if the patient requires a feeding tube and intravenous fluids to survive, it is required that the person making the decisions know what the patient’s wishes would be. This is why the patient’s Living Will is a very important document for family caregivers to have.

Elder Care and the Do Not Resuscitate Order (DNR)

Once patients are in the process of dying, they and their families may not want medical professionals to restore cardiac function and breathing in the event of cardiac arrest. In order to prevent medical personnel from providing such treatment, a DNR must be signed. This is usually a good time to enlist the services of Hospice.

Last Will and Testament

The Will is a document in which people state whom they wish to give their assets to when they die. Families of people who die without a Will are forced to have the deceased’s assets divided up among different relatives according to a formula developed by the state in which they live. This may not reflect the wishes of the person who died and may tie up the assets for a long period of time. Anyone with assets should have a will.

Ethical Will

Unlike the last will and testament, the ethical will is not a binding legal document, but a vehicle used to convey innermost values and convictions in a written form for love ones. It can include a family mission statement, instructions for the family business, individual instructions to loved ones, or provide an account of the writer’s life journey as a roadmap to the reader. An ethical will can be conveyed while living or left as a spiritual legacy after death. As it may change over time, it can be conveyed both ways. It can be freely read to family members as a tool to share values, feelings and wishes with loved ones before death. In reviewing it with family and friends it can serve as a means of bringing the family closer together.

Importance of Will

Many people delay making a will because they think that they don’t need one. Those that don’t write a will may have no say in where their assets go when they die. Making even a basic will may, therefore, be beneficial. Wills essentially allow the individual to choose who will make decisions about their healthcare when they will not be able to make such decisions and what the kind of medical treatments should be avoided. Perhaps a patient have a strong wishes regarding resuscitative measures in life-threatening conditions. Unfortunately, many people’s unspoken wishes or unwritten goals may not be carried out because family members and/or the healthcare team are unsure of that person’s wishes. If family members are asked to make life and death decisions without prior knowledge of that person’s wishes, they often assume that the person would want everything done, or family members may disagree regarding treatment decisions. A living will can help family members and the healthcare team to understand your end of life preferences.  Another reason for the importance of the wills is that they allow estate planning after death. A valid will passes assets to the people owner want to have them and provides for your spouse and children, partner and other dependents. If there isn’t a valid will person die intestate, leaving assets to be distributed according to the law of your place of residence. If there are no close relatives, assets may go to the state, rather than to people or organizations of the deceased’s choice.

Intestate estates are often the subject of court proceedings where people who would ordinarily have claims upon their relatives fight among themselves using up significant parts of the estate in legal costs. Making a thoughtful and considered will can help ensure these kinds of problems don’t happen

Who Needs to Write a Last Will and Testament?

Dying intestate (i.e. without a will) generally means that the state will dictate where and how an estate is bequeathed. This may not be an issue for those living in standard circumstances where their assets will be allocated by law as they would wish.

Things may, however, be different for those with more complex family dynamics or finances. It may be worth making a will if the individual:

• Has young children from a current or previous relationship/marriage that will need looking after until they become adults.
• Is in a relationship (i.e. living together) where the law does not give the partner an automatic right to inherit.
• Has specific requirements about bequests that won’t be covered by estate law.
• Has a lot of assets that may be liable to estate tax (USA) or inheritance tax (UK).

In these kinds of circumstances making a will allows the individual to dictate where their money will go and how it will be managed. Relying on the law to do this may not suit their wishes or needs.

What Should be Included When Writing a Will?

The elements of any will may depend on the circumstances and wishes of the individual. Common features that may be used include:

• Naming an executor to manage the will according to its conditions.
• Naming guardians for children to either care for them if they are minors and/or to manage assets on their behalf until they reach their majority.
• Outlining exactly who will be left money/assets.
• Many people simply need a basic will but some have more complex needs. Individual circumstances often dictate whether individual can make their own wills or whether they need formal legal help.

Who Can Make Their Own Will and Who Needs a Lawyer to Write a Will?

Anybody can choose to make their own will but some may need help from a lawyer to make sure that they put together the best solution. Generally, those with more complex family circumstances, unusual bequests and larger assets may be better off using a specialist to write their will to make sure that it is meets all legal requirements and their estate planning needs.

Those that prefer to use a legal specialist, even for a simple will, may find it useful to look for membership of the Institute of Professional Willwriters. This trade body has a code of practice to protect consumers which may make it easier to find reputable services.

Making a Will Online and Using Will Writing Forms and Packs

Those with simpler circumstances may find it easier and cheaper to make their own will. There are, for example, many different online sites and software packages that offer basic services that may suit some. Last will and testament forms and packs may also be an option worth investigating.

Keep in mind, however, that an individual making his own will takes responsibility for making sure that it is legal and they may miss out on the benefits of advice that could be useful to them. Those that do take this route may find that it may be worth dealing with a lawyer or solicitor in the future if their circumstances change and their needs get more complex.