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Advanced Directives: Who Needs Them and Why?

The Month of May is “National Elder Care Month.” While Elder Law encompasses a variety of legal matters impacting senior citizens, it is important that individuals of all ages understand the necessity of basic advanced directive documents such as durable powers of attorney, living wills and health care surrogate appointments.

A durable power of attorney gives a third party the legal right to perform actions on your behalf.  It can be drafted to be effective immediately or only upon incapacity, with the powers granted being limited to specific acts or broad to encompass a multitude of situations.  Without a durable power of attorney in place, a court-ordered legal guardian may need to be appointed over your estate in order for someone to act on your behalf.

Living wills are instruments that address whether or not you desire life-prolonging treatments if you are terminally ill.  This instrument can be drafted to state that you do want to receive such treatments (even if such efforts will only delay the dying process) or that you do not want your life prolonged by such treatments and that you be permitted to die naturally.

A health care surrogate authorizes a third party to make treatment decisions for you if you are unable to make those decisions on your own behalf.  The appointing document can also set forth your choices regarding specific medical situations.  It does not, however, take away your right to make decisions and speak for yourself when you are competent to do so.  Without a surrogate named, Indiana law specifies a group of individuals who can decide for you, which essentially is a member of your immediate family (i.e.; a spouse, parent, adult child, brother, or sister).  However, there is no priority decision making authority among those individuals.

Making the important decision to prepare these important also gives you the opportunity to discuss your wishes with your loved ones and appointed individuals.  You lose the opportunity to decide who will act on your behalf if you don’t have a living will, durable power of attorney, or health care surrogate designation.  Regardless of whether you are 18 or 88 years old, you have the right to decide and ensure your wishes are carried out.  Don’t leave those decisions to others who may not share your views.

For additional information, please contact attorney Shannon Frank at sfrank@KDDK.com or (812) 423-3183, or contact any member of the KDDK Estate Planning and Probate Administration Practice Team.

About the Author

Shannon S. Frank

Shannon S. Frank, a Partner at Kahn, Dees, Donovan & Kahn, LLP (KDDK), in Evansville, Indiana, has more than 25 years’ experience in the practice of business law, construction law, estate planning and probate administration, health care law, and real estate law. Shannon takes prides in giving exceptional service to her clients, recognizing that relationships with clients play a significant and essential role in providing tailored and comprehensive legal advice.