Fool.com: Why You Need a Living Will[Retiree Portfolios] April 24, 2000

Retiree Portfolio Why You Need a Living Will

By David Braze (TMF Pixy)
April 24, 2000

Do you love your parents? Most of us do. How about your kids? Again, most of us do. And given that love, I want to devote this column to how we can make the lives of both generations easier, let alone ours. I'll do that by discussing a few simple documents each of us needs in case the worst happens, with "worst" meaning death or an incapacity that precludes our ability to act for ourselves.

Many of us don't like to think about those possibilities. We either avoid them as too unpleasant to contemplate or we tend to view ourselves as somehow invincible and immortal. Yet that avoidance could cost our families and us dearly, a cost that can be avoided through some simple planning. Let's look at what we can do by reviewing a discussion I had some months ago with my 90-year-old father.

Probing into your parents' personal situation is difficult for a child, and I am no exception. Dad is increasingly frail and the primary caregiver to my largely disabled step-mom, who is also 90. His vision and hearing is failing along with his physical strength. Despite my best efforts, I cannot persuade either to accept outside help or to move to a retirement community where such help might be available when needed. What I can do, though, is ensure that they (and I) are prepared for the inevitable. But that means I must know more about their private business. Thus, it was with some reluctance that I approached the conversation I was about to have.

"Dad, who holds both your and Kathy's durable powers of attorney in case something happens to either of you? You know, in case you're hospitalized and can't act for yourselves?"

He gave me a strange look, and the child within me cringed. "We don't have powers of attorney," he said. "Why do you think we should?"

I knew visions of someone absconding with his hard-earned assets were flashing through his head. After all, he knew a power of attorney gives someone else the right to act for you in accordance with the terms specified in that power. Thus, he was naturally suspicious of the concept. So I spent the next 15 minutes or so telling him why Betty Jo (Mrs. Pixy) and I had granted our durable powers of attorney to each other with a successor power granted to our daughter in the event either of us was unable or unwilling to exercise that power. I pointed out that we each had a "springing" power of attorney. Normally, a power of attorney becomes void when the grantor of that power becomes incapable of acting on his or her own behalf. A durable power of attorney, as the name implies, remains valid during the grantor's incapacity. Further, a "springing" power takes effect only if the incapacity occurs, which means the holder of that power may use it only when the grantor is incapacitated.

I went on to explain that we considered the need for these documents essential due to modern medical techniques that could keep us alive yet still mentally or physically incapable of acting for ourselves. In the absence of such powers, our family could find it difficult to pay our bills or to acquire or sell assets as needed. Without a power of attorney, our daughters would be forced to go to court to have someone appointed as our guardian or conservator to do those things, an expensive and time-consuming process totally avoidable with a power of attorney that a lawyer can prepare in advance for about $75 to $150.

Dad saw the point. From there we went on to a discussion about living wills, a document that is available free in many hospitals across the land. A living will is an oxymoron because it's not about living at all. It's an expression of desire and intent signed by you that says you want the right to die a natural death free of all costly, extraordinary efforts to maintain your life when that life can only be sustained by artificial means. It makes such decisions easier on the doctor, the hospital, and your family. Used in conjunction with a medical power of attorney (or medical directive in some states), this tool can spare your family a painful, drawn-out, and costly process. I told my dad that both my wife and I have a living will plus the more powerful medical power of attorney. The medical power grants the holder the right to make any and all decisions regarding the care rendered as if we were making those choices ourselves. Again, he saw the rationale behind the concept.

I then asked him when he and my step-mom had last reviewed their wills. "Well, Kathy doesn't have one to worry about," he said. "I had mine prepared years ago in Illinois, and so far as I know it's still good." My father moved to Florida in 1980, so I immediately asked him whether he had given any consideration to the fact that some of his will's provisions might not be valid in his current state of residence or even possibly out of date. I knew his circumstances and desires had changed over the intervening years, which could have an impact on those provisions. And I emphasized that my step-mom also had an estate with substantial assets. Should she die without a will, then the state would provide one for her. Chances are very good that the state's ideas and her ideas as to the distribution of those assets would not be the same. Dad allowed that all I said was true. He promised he would do something soon.

Two weeks later, my father proved true to his word. He had contacted an attorney who drew up new wills for him and his wife. They also implemented durable powers of attorney, medical powers of attorney, and living wills. As to the powers of attorney, they each hold the other's power with me designated as the successor in the event a successor is needed. The lawyer also had them add me as a person authorized to access their safety deposit box where these documents are located. In Florida, access to a safety deposit box by an authorized signatory is allowed even if the original renter is deceased, unlike many states where the box may be opened after death only with a court order and in the presence of a court official.

I didn't enjoy the discussions I had with my father. Yet I think the documents discussed above are essential to all families. Their existence just makes things easier -- and quite possibly far cheaper -- in the event of death or incapacity. My parents have them in place now, so I can rest more comfortably. Mrs. Pixy and I also have them in place, so our daughters don't have to worry, either. Wouldn't you like to enjoy the same peace of mind? You can. All it takes is a bit of discussion with your folks, your spouse, and your kids, plus a visit to a qualified attorney. Yes, it will cost some money. But that cost is minimal compared to the difficulties you and yours may face without those documents. I urge you to give this issue more than a passing thought regardless of your age.

See you next week. And don't forget to post your comments and questions on the Retired Fools board.

Best to all... Pixy