Ten things you should know about end-of-life planning
Most people – about two out of three adults – do not have a will and even fewer adults have an advance health care directive, according to a 2021 estate planning study by Caring.com. But between the ongoing coronavirus pandemic and a recent case involving a Missouri man who was a partial heir to the late American pop icon Prince, it is clear how important estate planning documents can be when making end-of-life decisions.
In honor of National Healthcare Decisions Day on April 16, here are the top 10 things you should know when drafting a will and its important counterpart – a Durable Power of Attorney for Health Care and Health Care Directive.
What is a will?
A will is a legal document in which you, the “testator,” state how you want your assets or personal property distributed or managed. An individual who receives any of your property is known as a “beneficiary.” A will also names an “executor,” the individual who executes the wishes outlined in your will. An executor could be a spouse, adult child, family member, friend, or lawyer.
What is a Durable Power of Attorney for Health Care and Health Care directive?
A Durable Power of Attorney for Health Care and Health Care Directive, also commonly called advance directives or living wills, is a legal document that expresses your end-of-life health care wishes in case you are unable to speak for yourself as well as who is designated to make those decisions on your behalf.
What can I include in my will and Durable Power of Attorney for Health Care?
Your will can include your estate, money, prized possessions, or other property you own. You can also name guardians of your children in your will. Your will can include specific directions for burial or disposition of your remains. Wills normally do not include certain property, like some insurance policies or retirement accounts. Check those policies or accounts to see if you have already named beneficiaries for those items.
Your Durable Power of Attorney for Health Care and Health Care Directive allows you to name a “health care proxy” or “agent” to make decisions on your behalf. You can also provide end-of-life health care instructions regarding medical procedures you do or do not want, anatomical donations, or burial or disposition of your remains.
How do I create a will?
You can draft a will yourself or hire a lawyer to prepare your will. Even if you wish to draft your own will, it must meet certain state legal requirements, such as being witnessed by at least two competent individuals and signed. In Missouri, your will does not have to be notarized.
Regardless of whether your will is handwritten, oral, contractual, joint, or out-of-state, it is valid under Missouri law if it meets the state requirements. Visit Chapter 474 of the Revised Statutes of Missouri to review the overall requirements.
How do I create a Durable Power of Attorney for Health Care and Health Care Directive?
The Missouri Bar offers free Durable Power of Attorney for Health Care forms, drafted by lawyers licensed to practice in Missouri, that the state’s citizens can fill out. Missouri residents can also speak with their lawyers to draft advance health care directives. An advance health care directive must be witnessed and notarized. Visit Chapter 404 of the Revised Statutes of Missouri to review the overall requirements.
The bar has free legal Durable Power of Attorney for Health Care and Health Care Directives in English and Spanish. This form may be downloaded and/or photocopied as needed.
Where should I store these important documents?
Keep your original will and notarized Durable Power of Attorney for Health Care and Health Care Directive safe yet accessible. Health care providers will need access to your advance care directive, and a probate court – the court that handles the legal process of distributing property when someone dies -- usually requires the original will before processing your estate. If the original will was in your possession and could not be located after your death, the court may presume you revoked the will. To indicate your intentions, it is important your lawyer or someone you trust keeps signed copies of your will in case the original is destroyed.
Can I update my will and advance care directive?
Yes, you can update or revoke your will or Durable Power of Attorney for Health Care and Health Care Directive at any time before you die. The will or advance care directive that is most current, and meets the state requirements, at the time of your incapacitation or death will be legally binding.
What happens if I die WITH a will or advance care directive?
After you die, the person named as the executor in your will must file paperwork in the local probate court, starting the transferring of your property to the selected heirs. The executor must prove to the court that your will is valid, as well as list your property, debts, and beneficiaries.
With an advance care directive, your agent will ensure your end-of-life wishes, such as burial preferences if outlined in the directive, are met.
What happens if I die WITHOUT a will or advance care directive?
If you do not have a will when you die, a judge will appoint someone to be an administrator of your will and the probate court will decide who the proper heirs are. Since there is not a will, the court must follow the state probate laws, which means the court may make decisions that would have gone against your wishes as your wishes were not documented.
If you do not have an advance care directive, then the court may step in and appoint someone, called a “conservator,” to make health care decisions on your behalf. Your next of kin could also make decisions about your health care. Similar to not having a will, the court or your next of kin may make decisions that would have gone against your wishes since your care preferences were not documented.
Can someone challenge my will?
Anyone deemed an interested person, or someone who has a stake in the outcome of your will, can contest your will if they believe the will is invalid or fraudulent, you revoked the will, you were not of sound mind, or you were under undue influence. You can include a no-contest clause to discourage individuals from contesting your will.
Click here to learn more about end-of-life decision making and The Conversation Project’s National Healthcare Decisions Day.