Month: September 2017

Advance Medical Directives… Don’t Leave End of Life Care to Chance

An advance medical directive, also sometimes called an advance health care directive, or living will is a legal document that gives you control over who makes medical decisions during times when you cannot make them for yourself because of incapacity, serious illness, or an accident.  These directives allow an individual, known legally as the declarant, to specify what his or her health care wishes are, how they should be carried out, and who can make decisions on their behalf.  This relieves a great deal of stress both from family members and physicians as the medical decisions can be made in advance by the patient themselves.  If you don’t have an advance medical directive and name someone you trust to oversee your care, important health care decisions may be placed in the hands of family members, doctors, or even possibly judges, who may know very little about you, your wishes, and what type of care you would want. In Virginia, advance medical directives are authorized under the Virginia Health Care Decisions Act.  To be legally binding, an advance medical direct must be in writing and signed by the declarant in the presence of two witnesses who also sign the directive. An advance medical directive should include the following three sections:
  • End of life care instructions: what treatments the declarant does or does not authorize with regard to his or her health care
  • Appointment of a healthcare agent or third party to enforce the directive and make healthcare decisions for the declarant when he or she can no longer make them.
  • Decisions as to anatomical gifts for organ and tissue donation.

What are the benefits of advance medical directives?

There are several benefits to creating an advance medical directive.
  • You can make your own health care decisions about your eventual care in advance.
  • Your directive and agent will speak for you and be your voice once you no longer can speak for yourself.
  • You can update, edit, or change your directive at any time.
Making decisions about life-prolonging medical treatments, such as hydration, feeding tubes, CPR, ventilator or respirator assistance, dialysis, and even antibiotics, when you are well and have time to think and consider what type and how much care you would want if incapacitated, in a coma, or terminally ill will give you peace of mind.  You may choose some, all, or no life prolonging treatments or extraordinary measures, or opt to receive pain medication and only palliative care.  And, you can specify certain treatments for a finite period of time, after which, if your condition does not improve, treatment should be stopped. Your advance medical directive only takes effect when you cannot speak for yourself, so again, you must plan carefully about what you want your directive to say when it takes the place as your spokesperson. As long as you are competent, regardless of your condition, you will make your own decisions. When you are not, your advance medical directive and agent will guide the decisions used in your treatment. Your directive can be changed at any time. If your health situation or personal beliefs change, you can edit, update or amend the details of your advance medical directive.  Be aware that this is a legally binding document and must be updated by legal means if you change your mind about all or part of your future medical treatment.

Who should I appoint as my agent?

An advance medical directive is also used to appoint an agent to carry out the declarant’s wishes, or otherwise to make decisions as to the declarant’s medical care.  Most people name a spouse, partner, close relative, or even a friend as their agent.  Under Virginia law, your agent must be at least 18 years old.  Your agent should, regardless of their own personal beliefs, be your advocate and be willing to enforce your advance medical directive and health care wishes.  Though your agent does not need to be a resident of the Commonwealth of Virginia, they must be able and willing to travel to Virginia if necessary.  Your agent will begin enforcing and making health decisions for you once you lack the capacity to do so for yourself, and must do so in person.

Who should have a copy of my advance medical directive?

Once you have created your advance medical directive, the declarant should inform his or her primary physician and a copy of the directive should be included in your medical records.  You should also make sure that copies are included in the files of specialists including cardiologists, oncologists, etc.  It is also a good idea to give a copy to your agent, so that it can be reviewed and discussed, if necessary.  You may want to share the details of your advance medical directive with your spouse, children, and other close relatives.  And as with all estate planning documents, your attorney should keep a copy in your legal file.

Get help from an estate planning attorney

An advance medical directive is not a one-size-fits-all document.  Meet with an experienced estate planning attorney to ensure that your final wishes as to medical care are carefully detailed so that they can be carried out as you planned.  In this way, you can make sure that your family members do not undergo the strain of trying to make key medical decisions on your behalf, during a stressful time.  In Virginia, Melone Law, P.C. is here to help. We offer a full range of estate planning services, including wills, trusts, powers of attorney, living wills and advance health care directives, estate tax planning, guardianship and conservatorship, and contested estate matters.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston, and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about advance medical directives and other estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

DIY Estate Planning…Is it Worth the Time and Trouble?

The Internet has made it very easy to find answers and instructions on just about anything, including how to develop a do-it-yourself (DYI) estate plan. There are websites and software packages, along with DIY estate planning books and kits that tell prospective customers that you no longer need an attorney to create a will, trust, durable power of attorney, or advance health care directives.  If you follow the simple instructions you’ll create your own estate planning documents that will be both legal and enforceable. Though you’ll often hear the argument that it’s inexpensive and easy and that a DIY estate plan is better than nothing at all, the consequences of not fully understanding the process and making a mistake to save a few dollars are often too great.  As you consider your options, here are a few serious potential pitfalls of creating a do-it-yourself estate plan.

Valuable attorney advice…speak with an expert

Do-it-yourself wills and trusts, as well as other documents, lack the most important component of a solid estate plan… the advice and counsel of an estate planning attorney.  DIY estate planning sources provide forms, but don’t provide legal advice.  If you read the fine print, they make it clear that they are prohibited from giving legal advice and are never a substitute for an attorney.  Your estate plan involves much more than the production of documents. The most crucial aspect of any properly created estate plan involves an in-depth discussion about not only your estate, but also your specific wishes and goals.  A good estate planning attorney is both an investigator and an educator.  It’s impossible to know, without legal knowledge and experience, what the best solution is to your individual situation. The actual documents produced are simply the tools used to put a plan that has been specifically tailored to your circumstances, wishes, and goals, into effect. Estate law is determined by each state and the laws that govern an estate are determined by the state where the person resides when he or she dies. Individual state laws vary greatly on a lot of estate issues, including requirements for executing estate planning documents. Some online companies offering DIY estate planning documents assure consumers that these documents comply with requirements of the maker’s state of residence.  But that may not be the case.  An estate plan that is completed by a Virginia estate planning attorney will be written to comply with all current state laws.

Do you really want a one-size-fits-all plan?

Though online estate planning software may produce a legally enforceable document, it is not flexible. It’s a one-size-fits-all, fill-in-the-blanks solution. It minimizes many of the available estate planning options that might be best for your situation, in order to create a process and document that is easy for you to comprehend and follow. The simplicity built into the online process usually cannot and does not address many of the more complicated, yet common areas that may be specific to your circumstances.  For example, the estates of families with young children are much different than those with adult children no longer living at home, or those of families with a special needs child. The software treats all these scenarios the same way and asks the consumer to make estate planning decisions, often without the expertise or understanding to do so wisely.  Simply put, DIY estate plans do not have effective tools that protect the estate or the beneficiaries.

Are you making mistakes that jeopardize your estate plan?

Do-it-yourself software is typically set up to only handle simple estates and can’t deal with even the most common complexities such as children from a prior marriage, property that has appreciated in value resulting in capital gains, or estates that are large enough to be subject to estate taxes. In addition, DIY solutions generally fail to take advantage of sophisticated estate planning strategies because a one-size-fits-all package can’t account for an individual’s unique circumstances. A DIY estate plan is made by going through an online questionnaire and there is always the risk of inadvertently making an error because you don’t understand the instructions or legal terms, give an incomplete or inaccurate answer, or even skip a question that doesn’t seem relevant to you. If any of those things happen, one of two results may occur: either your estate plan doesn’t do what you think it does, or it could be invalid in part or in its entirety. The result is that the documents you create could include omissions or contradictions, be invalid, ineffective, or contain legal language that has consequences which you never intended.  All of this can complicate the administration of your estate.  Since your DIY estate planning documents are not reviewed by an attorney, you might not know if that is the case during your lifetime. But unfortunately at your death, your beneficiaries will find out and may suffer the lasting and potentially expensive consequences of your mistakes.

Make sure your final wishes are carried out

Saving time and money by making an online DIY estate plan may sound like an appealing idea, but there are many pitfalls and risks. The best way to ensure that your wishes for taking care of your loved ones and distributing your property are carried out after your death is to consult with a knowledgeable and experienced estate planning attorney. In Virginia, Melone Law, P.C. is here to help. We offer a full range of estate planning and probate services including wills, trusts, powers of attorney, living wills and advance health care directives, estate tax planning, guardianship and conservatorship, and representation for contested estate matters.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

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