“The Talk” Part Two

The other day I wrote a blog about having “The Talk” with your loved ones.  Today, I want to go over discussion points for when you have “The Talk.”  These discussions points include:

• Who should have access to your estate plan?
• What type of talk should it be: a lecture or a heart-to-heart?
• How detailed should the talk be?

The answers to these questions will depend on who you are talking with and your specific circumstances.  Under some circumstances, you may want to provide the decision maker with more information than the non-decision maker. Other circumstances may warrant providing information to everyone in between. And there may be times when you want to provide information to everyone associated with your estate. Typically, you will be dealing with decision makers, quasi-decision makers, information agents, and non-decision makers.

The decision maker for health care matters will be your acting health care and mental health care agents.  Usually these agents are the same person.  There are also quasi-decision makers.  Quasi-decision makers only become decision makers once the acting agent becomes unable to perform the agent’s duties.  Then there are the people listed on your HIPAA form who are authorized to receive medical information from your health care providers. These are information agents.  Non-decision makers are everyone else.

Decision Makers:

So what do you talk about and what do you provide to your decision maker during “The Talk”?  Most importantly, you should make sure your decision makers understand your final wishes. Do you want to be kept on life support?  When can they take you off life support?  Do you want to be cremated, buried, or frozen?  These things need to be talked about.  You need to be specific to ensure your wishes are carried out.  Next, you should talk about what happens if you develop alzheimer’s or dementia.  Do you want to be placed in a care facility or live at home?  If at home, who do you want to take care of you?  Additionally, you need to discuss if you have long-term care insurance.

The most common question I receive is should I give my agent the health care documents.  This is not necessary, but is advisable if your health is in question.  You do want to make sure that your agent has access to your documents.  If you have a debilitating disease, terminal illness or mental condition (e.g., terminal cancer, alzheimer’s or dementia, etc.) you may want to give your agent a copy of your documents.  Keep in mind that everyone’s situation is different, so contact your estate-planning attorney if you have questions about your situation.

Quasi-Decision Makers:

The only difference between a decision maker and a quasi-decision maker is when they serve as your agent. A quasi-decision maker (back-up agent) will not become a decision maker (agent) unless your current agent is unable or unwilling to act.  Thus, you may not want to provide your back-up agent with copies of your health care documents.  However, your back-up agents should know where to find the documents if your agent can no longer serve.  Additionally, you want to make sure he/she knows your wishes.  You never know when he/she will become your agent.  Most likely, this will happen once you are incapacitated and not able to express to him/her your final wishes.  One way to make sure he/she knows your last wishes would be to have him/her at The Talk that you have with your decision maker; although this may not be the most practical of solutions based on locations and times of the parties.

Information Agents:

Information agents include decision makers and quasi-decision makers.  Loved ones that you want to have access to medical information may also be information agents.  This usually includes your remaining kids.  The best advice I can give about what information to provide them is to let them know your final wishes.  You want to give them all the same information as the decision makers and quasi-decision makers regarding your health care decisions.  It is especially important if you think one of the information agents will not agree with your wishes.  For instance, you want to be taken off life support but they look at that as assisted suicide, which they are against.  However, you do not need to give them a copy of your health care documents and they do not need access or knowledge of the location of such documents.

Non-decision makers:

Non-decision makers will be your loved ones, including your friends and neighbors.  The amount of information you provide non-decision makers depends on your comfort level. If you have a terminal illness or mental disease, you may want to disclose information.  If you are healthy, disclosing your wishes may not be as important.  Keep in mind that every situation is different, so make sure to discuss this with your estate-planning attorney. If you do not have an estate planning attorney, the attorneys at Morris Hall are ready to assist you.

Contributed by an MH Phoenix Estate Planning Attorney.

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This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.