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DEAR SENIOR LEGAL LINE:What legal documents should I have, in order to plan for my future, especially as I age?

A legal question and answer line for Seniors. DEAR SENIOR LEGAL LINE:

What legal documents should I have, in order to plan for my future, especially as I age?

Signed, Bill

DEAR BILL:

Excellent question!  My clients are older adults, so the documents that I find useful for them - any adult, really - are the following:

  1. Healthcare Directive
  2. Power of Attorney
  3. Will

In the broad sense, think of legal documents as tools to accomplish goals.  Most people have the goal of remaining in control of their own lives as much as possible.  The first two legal documents help you control your life during your lifetime, especially if you are hit with incapacity.   A Will allows you to control how your estate is distributed after your death.

Depending on your assets, you might not "need" a Will, but everyone has a body and mind and has wishes and preferences about the healthcare of their body and mind, so in my opinion, everyone can benefit by having a Healthcare Directive.  Also, since everyone has a financial situation, everyone can probably benefit from having a Power of Attorney for financial matters.  I will discuss Healthcare Directives in this article and the other two documents in later articles.

If you are able to communicate your healthcare wishes and understand your healthcare treatment options, your doctor and other healthcare providers will just ask you what you want.  It's when your doctor says you can't communicate or understand your healthcare options that a Healthcare Directive is useful.  The doctor at that time will look to the directive to see if you've named any people to step into your shoes and/or if you've written down any instructions to guide your agents and/or healthcare providers.  The Healthcare Directive is a legal document, so your doctor is bound by it (as long as your wishes are within the bounds of medical practice) - if your doctor does not want to follow it, they have to allow you to be transferred somewhere that will have doctors to follow your wishes.  A Healthcare Directive is your way to put someone in place to speak for you and make sure your wishes are known and followed, and your way to write instructions about your wishes.  It is your document and you make it your own.  Minnesota does not require a specific form, although there are many to choose from:  the University of Minnesota form, the Honoring Choices form, the Five Wishes form, to name a few.  If you don't like these forms, you can use a blank sheet of paper and just make sure it meets Minnesota's requirements for a valid Healthcare Directive:  Name an agent(s), write instructions, or both; then sign it either in front of 2 witnesses or a notary public.  

Having a Healthcare Directive is vital, especially if you are not married or if there are adults in your life that may fight over what should happen with your care if you can't communicate or understand your healthcare options.  A person who disagrees with your Healthcare Directive will have a difficult time to overrule it.  They can petition the court for a guardianship, but Minnesota law says that if a guardianship is needed and you have a valid Healthcare Directive naming an agent, the court will presume that you nominate your Healthcare Directive agent to be your guardian.  This helps to prevent the disagreeing person from taking control over your healthcare and life.

Who makes a good Healthcare Directive agent?  Think about those who would rush to see you in an emergency.  Of that pool of people, who will do what you want?  Who has the strength to stand up to those that may question your wishes?  Who has the health and capacity to act for you?  Who is willing to act as your agent?  Those people may be your best choices to be your agent.  Talk with them to see if they'd be willing to do as you wish and act if needed.  They do not have to live locally.  They do not have to be family members.  Is there anyone that can be a back-up agent in case your main agent(s) aren't available or able to act?

While the Healthcare Directive covers healthcare during your life, you can also share powers with your agent and leave instructions about what you want to happen with your body when you die.  You can say if you want to donate organs and what kind of funeral arrangements you desire.

One more thing - while all adults can benefit from having a Healthcare Directive, if you have a serious medical condition, you may want to have another legal document called a POLST.  POLST stands for Physician's Orders for Life Sustaining Treatment.  In consultation with you, a doctor or physician's assistant signs this document and it is a doctor's order.  It's useful especially if you do not want emergency personnel to attempt life-saving measures in your home.  The emergency personnel won't read a Healthcare Directive - their job is to stabilize you and get you to the hospital, where the Healthcare Directive would then be read if needed.  The POLST is recognizable and short enough that the emergency personnel can follow it at your home.  Contact your local fire department or ambulance department to see where they like people to keep the POLST.

I encourage you and everyone to get a Healthcare Directive.   

This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to:  Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprints by permission only.

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