For many young professionals, the concept of estate planning can seem confusing, strange and perhaps unnecessary. As a young professional myself, I can relate to these feelings. Most of us do not plan to die anytime soon, and the traditional thinking is that we will deal with something like estate planning down the road. In addition, many young professionals assume that estate planning is something only rich people need to worry about it, and while many young professionals hope to one day be rich, few consider themselves in that category in their 20’s and 30’s. Thus many young professionals do not even consider doing any estate planning until they are married and have children. While this is certainly a good time to have an estate plan in place, I believe that all young professionals would benefit from at least two basic documents related to their healthcare. Below I will cover what a Will does and does not do, and why everyone over age 18 should consider have a Power of Attorney for Healthcare and/or Living Will in place.
Last Will and Testament
Throughout history, dating back to the ancient Greeks in the 6th Century B.C., a written Will has been used to distribute property, name successors and nominate individuals to inherit titles, property and treasure. Gaius Julius Caesar died without children, but famously left all his property and his title to his nephew Octavian by way of his written Will. Today, a Will can be used to pass any and all property you own to the people you wish who are named in the document. A Will is also used to name a Personal Representative (sometimes called an Executor) who is responsible for probating your estate and distributing your property in accordance with your wishes as laid out in your Will. Finally, if you die leaving minor children behind, a Will is the only way a parent may nominate a legal guardian to the court, to take their place in the event of their death. For this reason, a Will is of utmost importance for anyone with minor children.
For young professionals without children, a Will may be less desirable or even viewed as unnecessary by some. If you die without a Will you are referred to as having died “intestate”. If you die intestate, your property is passed according to the laws of intestacy in the state in which you live. These rules are quite complex, but I will provide a brief but not complete summary of the Wisconsin rules here. If you are married and have no children, your property will first go to your surviving spouse. If your spouse predeceases you or you are unmarried when you die, your property will go to your parents (if then living), and next to your surviving siblings. The laws of intestacy continue on from there with your estate passing to your closest relatives. You may have heard of this concept in the past when watching an old western movie where someone died and they talked about finding the “next of kin.” Finally, if you die intestate with no living relatives (no “next of kin”), your estate will pass to the state. (See Wis. Stats. §852.01 for a complete discussion of the intestate rules)
Some young professionals may consciously choose to have their estate pass according to the laws of intestacy. If you are unmarried and have no children, and you want your parents to receive your property if you die before they do, then you may feel comfortable dying intestate because your parents will receive your property anyway. If you choose this option though, be aware that you are giving up the option of naming a Personal Representative to probate your estate and distribute your property and you are also giving up the option to name secondary beneficiaries should your parents predecease you.
Power of Attorney for Healthcare
For the reasons discussed above, some young professionals may be perfectly at ease with their property passing according to the laws of intestacy, and thus feel they have no need for a Will unless or until they get married or have children. If you fall into this situation, while you could benefit from executing a will for peace of mind and increased control over your estate, you may not (strictly speaking) “need” a Will. However, I would suggest that for many young professionals, the document that it is even more important than a Will at this stage in their life is the Power of Attorney for Healthcare. Everyone over the age of 18 should have a Power of Attorney for Healthcare in place. In this document you name an agent to act for you in the event you are incapacitated and unable to make healthcare decisions for yourself. You can choose to authorize your agent to make decisions for you regarding the use of a feeding tube, whether or not you are admitted to a nursing home, and whether or not you wish to donate anatomical organs. Furthermore, you can use this document to authorize your agent to obtain and review your medical records.
Once you turn 18, you are viewed as an adult in the eyes of the law and you are solely responsible for making decisions regarding your healthcare and accessing your healthcare records. Many young professionals (myself included) figure that if something happened to us where we were incapacitated, our parents would come to the hospital and act in our best interests. While it is true that most parents immediate instinct would be to rush to the hospital to care for their son or daughter, once you turn 18 your parents lack the legal authority to act on your behalf if you have not executed a valid Power of Attorney for Healthcare. Depending on your perspective, you may view this is good or bad thing that your parents are no longer legally able to act on your behalf. However, regardless of whether you want to name your parents as your agent or not, the only way to name someone to act for you in the event of your medical incapacity is through a validly executed Power of Attorney for Healthcare.
Some young professionals may want to explicitly make sure your parents are not in charge in the event of a medical emergency where you are incapacitated. It could be that your parents live far away, or it may be that you do not trust your parents to follow the wishes you have related to them regarding end of life decisions, or you may simply not want to burden them with this heavy responsibility. In this situation, it is equally important to execute a Power of Attorney for Healthcare so that you can name the person you trust to act as your agent during your incapacity.
In Wisconsin, the state legislature has created a statutory Power of Attorney for Healthcare document that anyone can print, fill out and execute for free. This document can be found in Chapter 155 of the Wisconsin Statues. While I recommend consulting with an attorney if you have questions regarding this document or if you would like a document that is different from the statutory version and is crafted according to your specific wishes, this is a nice starting point for people who are unwilling or unable to pay an attorney to help them. You can also request a free printed copy of this form by writing to the Wisconsin Department of Health Services and including a self-addressed stamped envelope with your request to:
Power of Attorney Division of Public Health P.O. Box 2659 Madison, WI 53701-2659
Living Will
An advanced directive to physicians, commonly known as a Living Will, lays out your wishes regarding end of life treatment options if you are no longer able to make decisions due to illness or incapacity. For instance, a common topic discussed in this document is whether or not you wish to remain alive on artificial life support if you have a terminal condition. You can also dictate your wishes regarding your care and comfort while you are incapacitated and your wishes regarding experimental drugs and therapies. Many of these same instructions can be given in a validly executed Power of Attorney for Healthcare, provided that you leave detailed instructions to your health-care agent within this document.
Most experts recommend that if you have someone you trust to name as a health-care agent, you do this via the Power of Attorney for Healthcare. A Power of Attorney for Healthcare is a much more flexible document than a Living Will because it allows your health-care agent to react to changing circumstances in a broad range of situations in regards to your healthcare. If you do not have someone you trust to name as your healthcare agent, the next best option is to leave your instructions regarding your healthcare treatment and care via a Living Will.
In the absence of a health-care agent named to act for you, a Living Will gives your doctors instructions about your wishes and desires concerning your health-care preferences. A Living Will can also be designed to coordinate with a validly executed Power of Attorney for Healthcare so that if your health-care agent is unable or unwilling to act, the provisions of the Living Will kick in and govern what will happen. A Living Will may also be useful to have if you are in another jurisdiction (such as another state) that does not recognize a Power of Attorney for Healthcare executed in Wisconsin, but that would recognize a Living Will. Therefore, a Living Will can provide a double layer of protection in certain instances. However, if you decide to execute both a Power of Attorney or Healthcare and a Living Will you should make sure the documents coordinate with each other and do not conflict. You should discuss your specific situation with your attorney to determine whether a Power of Attorney for Healthcare, a Living Will, or both is the best option for your situation.
The information contained herein is intended for informational purposes only and is not legal advice, nor is it intended to create an attorney-client relationship. For advice regarding a specific legal issue, please contact me or another attorney for assistance.