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John Whalen, PA

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I will, from time to time, post general advice on topics of interest to the site. Please, remember that we cannot give you legal advice on this site. Since each situation is unique, we need to have personal contact. But, we do hope you find our comments helpful.

 “John, I just learned I need to go for major surgery! Is there anything I should do to get my legal affairs in order?”

This is a question I frequently receive from my friends. It is usually accompanied with an admission that the person has not done anything to prepare themselves legally for such a situation. The answer to this question, of course, is yes. Let me explain from my personal experience.

18f83I have had major surgery in my life and I have also served as a care giver for my deceased wife whose cancer caused her to endure numerous surgeries. Major surgery generally requires that your doctor cause you to be unconscious for a period of time. While in most cases the surgery is uneventful, as your doctor will tell you there is no surgery that does not have risks.

Without going into the details, my late wife had complications during two of her surgeries. In both cases a decision needed to be made on the spot. Prior to her going into surgery, she had caused a document to be prepared called a Health Care Power of Attorney”.

In a latter article Kim explains this document in detail, but what it did was to allow the doctors to get the authority they needed from me. This allowed my wife’s surgery to continue. When she recovered full consciousness, I explained what had happened and the decisions I made which were in line with her general wishes regarding her health care.

1. Be Prepared

You really need to have a health care power of attorney properly prepared and signed when you go to the hospital. Before you have your lawyer draft it up make sure you have the names and addresses and all phone numbers of the persons you wish to have this responsibility. I say persons because an emergency may occur when your preferred person is not available. Having several names with all their contact information in a clear order of priority will enable the doctors to react quickly to any crisis. So, if you do not have a health care power of attorney, you should get one done ASAP! If you have one, now is the time to pull it out and make sure it is up to date.

2. “Durable General Financial Power of Attorney”

Since 2005, you are not allowed to have powers of attorney for health care on the same form as gives powers for financial matters. But, when you go into a hospital, sometimes it works best if your care giver has the ability to sign forms and make payment arrangements on your behalf. I can tell you, in my case, it came in handy on numerous occasions. The word “durable” means it can be used even if you are not conscious. But, this form is more often used when you are conscious and simply cannot get to the place where your signature is required, such as the admissions office or a bank. The words “general financial” means it allows the person to do anything with your assets and income that you would do. Because these powers are quite broad you will see the form is much more specific than is the health care power of attorney.

3. Have an Updated Will

A Will is a set of written instructions which directs how your estate will be managed and distributed upon your death.  While the state has a default plan called “intestacy,” if you do not have a Will, that plan generally is not what our clients prefer and it leaves open many questions which can produce a lengthy and expensive probate process. If you do not have a Will, you really should consider having us help you to prepare one. If you have a Will, you should take the time to review it to see if it still does what you want. If it does not, please let us know and we will help you to revise it.

4. Look at Your Beneficiary Designations

You really want them to be up to date. Certain assets fall outside of probate which means they pass directly to your named beneficiary on death. Those assets are: (1) assets placed into a trust during the decedent’s life; (2) property held in joint tenancy, and; (3) contracts, such as IRA’s, annuities, and insurance policies where the beneficiary(s) are designated on the policy.

Major surgery has risks, while we certainly do not want to wish a bad result on anyone, it is a wise person who plans for the worst and hopes for the best. It only takes a few moments for you to review these items. If they are not what you want, give us a call and we will help you get them changed. Likewise, if you do not have any of these documents in place and wish to create them, give us a call and we will help you. As always, if you have questions after reading these articles, please feel free to call us. We are happy to talk to you.