This may look like a daunting list. Start with ones that are most important to you and focus on them first.
For disposition of your assets and to avoid unnecessarily high taxes, focus on wills, your digital legacy, and power of attorney.
For control of how you are treated in your final hours or days, choose a level of redundancy in the various medical forms below that will help assure your wishes are followed. Doing so now will avoid placing a potentially large burden on family members later.
Making sure your documents are honored
Documents listed in this post must be recognized by the state in which you reside in order to be honored. Some states require that you use a specific, state-sanctioned form. So be sure to confirm with your state of residence that your documents are accepted.
Note this also applies to documents covering adult children going to an out-of-state school; they must be accepted by the state where the student is in school.
Specifying what happens to your assets
Last Will & Testament
Approximately three in ten people aged 65 and over do not have a will. For these people the state is happy to take their money while leaving the rest of the family quite irritated.
If you don’t have a last will & testament, create one. There are numerous free or inexpensive online applications for creating a will. Pick one that’s specifically written for your state of residence. If you have a modest estate, creating a will should not take more than a couple hours of your time. Make sure you get it properly signed and witnessed according to the laws of the state in which you live.
If you feel strongly about items of sentimental or financial value you have willed to family members, put your feelings in your Will as to what you would like to see happen to them. While not legally binding, I believe it’s important that your survivors know how you feel about these items.
Review your will every year for anything that might need changing.
Review all your beneficiary statements every year including IRAs. There have been some particularly nasty court battles where a person has divorced, remarried, and forgotten to change the beneficiary on his IRA. The ex-wife won, and the new wife lost.
Digital Estate Plan – your digital assets
Examples of digital assets include email accounts, social media accounts, e-commerce accounts, photos saved in the cloud, cryptocurrency keys, domain names, intellectual property such as text, graphic and audio files, blogs, loyalty program benefits such as credit card perks, utility accounts, online banking accounts and online store accounts. Note that a bank account is considered a digital asset, but the money in the account is not a digital asset.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) allows the executor of an estate or an attorney access to a person’s online accounts after incapacitation or death. Go here https://www.everplans.com/articles/state-by-state-digital-estate-planning-laws to determine whether your state supports RUFADAA and, if so, how they support it. Note that some states do not yet support the act, and other states that do support it may differ in how they support it.
A Digital Estate Plan enables your family to access your digital assets after your death. To create a plan:
Take an inventory of your digital assets with account names, usernames, and passwords.
Decide if you want the named executor of your estate to also have the responsibilities of your digital executor. Clearly state in your will whether the same person will have both responsibilities or whether you will name one person as executor and a different person as digital executor. Some people choose to name a family member or friend as their digital executor.
Decide how you want your digital assets handled. Be specific about your intent for each asset. Note that some digital service providers like Google and Meta have specific policies and procedures that determine how these assets are handled; if you have assets with providers you need to understand the policies of these providers and make sure you do not leave instructions that are contrary to these policies. If you have digital assets that generate income, you need to think about what happens to these assets – whether they are terminated upon your death or whether you intend for them to be managed by someone who would be named in your estate plan.
Put all your plan documents in a safe space that is accessible by your digital executor.
Power of attorney
This allows you to empower someone else to act on your behalf for legal and financial decisions. Templates for power of attorney documents are likely to be found on your state’s web site.
A durable power of attorney is effective immediately upon signing. A springing power of attorney goes into effect upon a stipulated event usually related to mental incapacity or other disability.
A power of attorney can be useful for adult children who go off to college and are faced with unforeseen events such as car accidents or illnesses that leave them temporarily unable to make financial decisions or to carry out financial transactions while they are recovering.
Be aware that power of attorney documents are being increasingly scrutinized by institutions such as large banks. If you already have these documents, call your bank or other named institutions to determine whether they will honor them as is. You may find they will not unless they are the institution’s owned forms.
Your right to determine how you are treated
Healthcare power of attorney/health care proxy
This gives an individual authority to make decisions about your medical treatment should you become unable to do so. Templates for healthcare power of attorney documents are likely to be found on your state’s web site.
Choose this individual carefully and put him or her in your phone contact list under ICE – In Case of Emergency. Some parents elect to have this for adult children who leave home and go off to college, especially colleges far from home. Their thinking is based on the increasing prevalence of mental health issues for college students.
If you have an existing healthcare power of attorney document and your marital status changes – you marry or divorce – consider creating a new document. State laws are inconsistent; it’s better to be safe than sorry later.
If you name different individuals for power of attorney (for legal and financial matters) and power of attorney for healthcare, make sure these individuals are known to each other and are likely to effectively work together.
POLST – Physicians Orders for Life Sustaining Treatment
A POLST complements a living will. It typically includes directions about life-sustaining measures such as CPR, intubation, antibiotic use, and feeding tubes.
You fill this out with your doctor. When the doctor signs it, it becomes a physician’s standing order as part of your medical record. That means medical professionals are required to follow it – for the most part – provided it has been made known to them.
Check with state laws. You can get further information here: POLST.
DNR/DNI Orders
These orders are problematic both for patients and for the personnel and facilities that treat them.
Do Not Resuscitate and Do Not Intubate procedures are done without anyone’s permission. EMT and other emergency care personnel do not need permission to use any life-sustaining treatment they may deem necessary.
Whether DNR/DNI orders are followed is subject to variance from state to state and from country to country. And they may be modified or even ignored depending on the circumstances.
For example, it is legal for a hospital to ask you to sign a form stipulating that the facility can temporarily suspend your properly executed DNR orders. Why would they do that? Adverse events in anesthesia and temporary cardiac abnormalities can be quickly corrected, and these events could be unrelated to the underlying condition for which you’re being treated.
If you do not have a POLST and a living will, you or someone accompanying you should ask the facility whether they will honor your DNR order prior to your surgery or treatment. Be willing to negotiate if you are capable of doing so. Should you be willing to sign such a form, modify the document with any changes you desire before signing it.
If you do have a living will and a POLST, you will have specified in clear terms what you find acceptable and unacceptable in a variety of circumstances. You may decide a separate DNR/DNI order is not necessary.
Try imagining a range of circumstances from an EMT person knocking on your front door, to getting prepped for a difficult surgery at age 85. Remember that whatever you have written in a living will, a POLST, or a DNR/DNI order must be communicated somehow to the care givers in a timely manner for the order to be followed.
Living will
This document states your predetermined wishes regarding end-of-life care should you become terminally ill or permanently unconscious. This minimizes the possibility adult children, spouse or partner, or close friends are put in a position to argue over how you want to be treated.
Check with the state in which you reside for templates for living wills. And include a POLST document if the living will template does not include one.
Make sure your care providers and family members have copies of your living will. Have in-person discussions with some or all of them. Make sure all family members have a common understanding regarding your wishes.
You should choose a level of redundancy that you believe will most likely assure your wishes are followed. You can also look into www.fivewishes.org., an organization that addresses end of life issues.
If you have a healthcare power of attorney, a living will, a POLST document, and a DNR/DNI order, take the time to make sure they do not contain anything contradictory. Your primary care physician should be able to explain and help you work through these options.
HIPPA release
This allows your medical providers to share and discuss medical information regarding your medical information and treatment should you be become incapacitated. Without this release, it’s possible your family may not be able to get needed information on your condition and treatment.
Make sure any HIPPA release you sign is effective immediately; some stipulate they become effective only when you are incapacitated.
HIPPA releases can be especially important for adult children when they go off to college. It can be extremely difficult to get health information from an institute of higher learning unless your child has filled out a blanket HIPPA agreement stating you (a parent) are authorized to get medical information on your child.
Even though HIPAA is a federal statute, some states have state laws that cover medical privacy issues which may take precedence over other HIPAA laws.