U.S. Legal Forms, Inc.
Multi-State
LegalLife™ Estate Planning and End of
Life Issues Guide
* * *
A general guide to understanding estate planning and other end of life issues.
©2007 U.S. Legal Forms, Inc. All rights reserved.
This Guide was developed by U.S. Legal Forms, Inc. (USLF), is protected by copyright, and may not
be reprinted, distributed or displayed by any means without the express written consent of USLF.
U.S. Legal Forms, Inc.
LegalLife™ Estate Planning and End of Life Issues Guide
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................... 1
I. Will ...................................................................................................................................... 2
a. Definition of a Will ................................................................................................. 2
b. What Happens if You Die Without a Will ............................................................ 2
c. General Requirements for Making a Will ........................................................... 2
d. Appointment of Executor or Personal Representative ....................................... 3
e. Naming a Guardian and/or Trustee for Minor Dependent Children ................ 3
f. Revoking or Amending a Will ............................................................................... 3
g. USLF Will Offerings .............................................................................................. 4
II. Living Will .......................................................................................................................... 4
a. Definition of a Living Will ..................................................................................... 4
b. Appointment of Agent or Healthcare Representative ........................................ 4
c. USLF Living Will Form Offerings ....................................................................... 5
III. Trust .................................................................................................................................... 5
a. Definition of a Trust ............................................................................................... 5
b. Duties of a Trustee ................................................................................................. 5
c. Amending or Revoking a Trust ............................................................................ 6
d. USLF Trust Form Offerings ................................................................................. 6
IV. Living Trust ........................................................................................................................ 6
a. Definition of a Living Trust ................................................................................... 6
b. Requirements for Making a Living Trust ............................................................ 7
c. USLF Living Trust Form Offerings ..................................................................... 7
V. Durable Financial Power of Attorney .............................................................................. 7
a. Definition of a Durable Financial Power of Attorney ......................................... 7
b. What Happens if You Become Incapacitated Without a Durable Financial
Power of Attorney .................................................................................................. 8
c. Appointment of Attorney-in-Fact ......................................................................... 8
d. Revoking a Durable Financial Power of Attorney .............................................. 8
e. Requirements for Making a Durable Financial Power of Attorney .................. 9
f. USLF Durable Financial Power of Attorney Form Offerings ........................... 9
VI. Durable Healthcare Power of Attorney ........................................................................... 9
a. Definition of a Durable Healthcare Power of Attorney ...................................... 9
b. When a Durable Healthcare Power of Attorney Becomes Effective ............... 10
c. Appointment of an Agent .................................................................................... 10
d. USLF Durable Healthcare Power of Attorney Form Offerings ....................... 11
VII. Healthcare Directive ........................................................................................................ 11
a. Definition of a Healthcare Directive ................................................................... 11
b. Requirements for Making a Healthcare Directive ............................................ 11
c. What Happens if You Fail to Prepare a Healthcare Directive ......................... 12
d. Revoking or Amending a Healthcare Directive ................................................. 13
e. USLF Healthcare Directive Form Offerings ..................................................... 13
VIII. Do Not Resuscitate (DNR) Order ................................................................................... 14
a. Definition of a DNR Order .................................................................................. 14
b. USLF DNR Order Form Offerings .................................................................... 14
IX. Information Relating to Other End of Life Issues ........................................................ 14
a. Identification of Other Healthcare, Funeral and Burial Preferences ............. 14
b. USLF Form Offerings ......................................................................................... 14
X. Estate Planning and End of Life Checklist .................................................................... 15
a. Will ........................................................................................................................ 15
b. Trust/Living Trust ................................................................................................ 15
c. Durable Financial Power of Attorney ................................................................ 15
d. Healthcare Directives ........................................................................................... 16
i. Living Will .......................................................................................... 16
ii. Durable Healthcare Power of Attorney ........................................... 16
e. DNR Order ........................................................................................................... 17
f. Other ..................................................................................................................... 17
INTRODUCTION
Although it may seem unpleasant or uncomfortable to contemplate your wishes regarding
healthcare, property and finances, should you ever become incapacitated or die suddenly,
you can reduce the expense and stress involved for your family and loved ones by
planning for these events now. If you fail to put your preferences in writing, someone you
might not have otherwise chosen may be allowed to make decisions for you. In order to
ensure that your financial affairs are handled appropriately, your property is divided
according to your desires, your medical treatment aligns with your values and other end
of life issues are addressed with care, you will need certain legal documents. Among the
most important are a will, durable financial power of attorney, and healthcare directive.
You may also wish to prepare a trust or a living trust to manage your property either
during your lifetime or after your death. This LegalLife™ guide is designed to help you
to understand the significance of these legal documents as well as to provide vital
information on estate issues so that you can better plan for end of life events.
This is a multi-state guide, containing general information regarding estate planning and
end of life issues. You should not rely on this guide to make legal decisions, but rather to
alert you to certain issues that you may need to address as you plan for end of life events.
This guide is a starting point to inform you of various legal documents that may be useful
and/or necessary for putting your end of life legal affairs in order. THIS GUIDE IS NOT
A LEGAL DOCUMENT, and is not intended as a substitute for seeking legal advice
from an attorney or other qualified professional.
We hope this guide raises your awareness of estate planning and end of life legal issues,
and that you find it useful and informative.
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I. Will
a. Definition of a Will
A will is a document that sets forth provisions such as who you wish to receive your
property upon your death, who you wish to carry out the instructions in your will
(executor or personal representative) and who you wish to care for dependent minor
children in the event neither parent is available to provide such care (guardian). A will
does not take effect until after your death. If you take the time to prepare a will or have a
will prepared for you, your property will be transferred more quickly, and you may avoid
unnecessary financial and tax burdens.
b. What Happens if You Die Without a Will
If you die without a valid will (or intestate), the state will divide your personal and real
property (your estate) among your relatives according to its intestacy laws and appoint an
administrator of your will. This process is typically more lengthy and costly than
distributing an estate according to a valid will. State law is designed to distribute your
estate in a manner that an average person would have desired had that person prepared a
will, which may or may not match up with your preferences. Generally, close relatives
rather than distant relatives receive property. Surviving spouses are typically entitled to
the entire estate or a substantial portion of the estate. If no designated relative survives,
the estate property is transferred to the state.
c. General Requirements for Making a Will
In order to prepare a valid will, you must meet state law requirements. State laws vary,
but usually require the following:
You must be an adult (18 years of age or older) or you must live in a state
where persons of a younger age can make wills if they are married, in the
military or for some other reason are considered emancipated (released
from the control of a parent or guardian).
You must be of sound mind. This means that you must understand the
nature of a will and that you are preparing a will, you understand your
relationship with persons you would normally provide for (such as your
spouse or children) and you know the property that you own. You must
also be capable of deciding how to distribute your property.
Your will must be in writing, preferably typed or computer-printed. Some
states allow you to handwrite your will (referred to as a holographic will)
as long as your will is written, dated and signed in your handwriting.
You must sign your own will, unless you are physically unable to do so.
Under those circumstances, you must have another person sign your will
in the presence of witnesses.
Your signature must be witnessed by at least two witnesses who also sign
your will, and in some states, your will must be notarized and signed by a
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notary public. (Your witnesses cannot be named to receive property in
your will.). If your will contains a sworn statement (a self-proving
affidavit), which allows the will to be administered without your witnesses
testifying that the will is valid, you must have a notary public sign your
will.
d. Appointment of Executor or Personal Representative
In your will, you should appoint a relative or close friend to serve as your executor or
personal representative in administering your will. You should also appoint an alternate
for this position in the event your first choice is unavailable to perform his or her duties.
Administering your will consists of managing your estate’s assets, collecting debts owed
to you, paying debts you owe, selling property to pay your estate taxes and filing court
and tax documents for your estate. Prior to appointing your executor or personal
representative, you should consult with this person to confirm that he or she is willing to
assume responsibility for supervising the distribution of your estate. Your executor or
personal representative should be someone who will get along well with the persons you
name in your will to receive property.
e. Naming a Guardian and/or Trustee for Minor Dependent Children
If you have minor dependent children, you may wish to use your will to name a guardian
to provide care for them in the event they have no surviving parents. A court will appoint
a guardian if you fail to include this information in your will. You should also include in
your will an alternate guardian. You should consult such persons to ensure they
understand their responsibilities as a guardian. You should also appoint a trustee of any
trust included in your will for your minor children.
f. Revoking or Amending a Will
Once you prepare a will, it will remain valid and enforceable until you revoke or suspend
it with a new valid will. Alternatively, you may prepare a document called a codicil that
revokes or amends provisions in your original will. Codicils must meet the requirements
listed above for wills.
You should update your will periodically to reflect changes in your life. For example, you
should prepare a new will as a result of the following circumstances:
You change your mind about the persons you desire to inherit your
property.
You experience the death of a loved one.
You are diagnosed with a serious health condition or experience the
decline of an existing health condition.
You get married.
You have a new unmarried partner.
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You get divorced.
You have a new child.
You have new stepchildren.
You no longer own or you acquire substantial assets.
You are married and you move to a state with different laws regarding
ownership of property by married couples.
g. USLF Will Offerings
USLF offers many different types of will forms and packages for each state that are
drafted in compliance with particular state laws, including mutual wills for married
persons and persons living together with or without minor or adult children, as well as
wills for divorced (remarried or not remarried), married, single or widowed persons with
or without minor or adult children
( http://www.uslegalforms.com/last_will_and_testament.htm ).
USLF also offers completion or preparation services for many of its will forms where you
can have your documents completed for you according to information you provide in a
questionnaire. Finally, USLF provides definitions, instructions, samples of various types
of wills and free law summaries regarding basic will requirements for each state.
II. Living Will
a. Definition of a Living Will
A living will is a document that sets forth your wishes regarding healthcare you would or
would not want to receive if you became terminally ill or unable to communicate for
yourself. A living will may also be referred to as a healthcare declaration. A living will
becomes effective when you provide it to your physician or healthcare provider, and you
become terminally ill or suffer permanent unconsciousness resulting in your incapacity to
make healthcare decisions. A living will directs your physician and healthcare provider to
follow your instructions regarding the use, continuation or withholding of life-sustaining
medical or surgical procedures, as well as artificial nutrition and hydration. You may
also use your living will to state your preferences regarding resuscitation, bodily organ
and tissue or whole body donation, non-emergency surgery or elective medical
procedures.
b. Appointment of Agent or Healthcare Representative
You may wish to appoint an agent or healthcare representative as well as an alternate to
ensure your physician or healthcare provider carries out the instructions in your living
will. You should not name an agent if a person you trust is not available. If you name an
agent to carry out the instructions in your living will, you should communicate this to the
person named, as well as discuss with such person your specific desires regarding your
medical care. See below for further information regarding requirements for healthcare
directives, which include a living will.
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c. USLF Living Will Form Offerings
USLF offers many different types of living will forms
( http://www.uslegalforms.com/livingwills/ ) and form packages
( http://www.uslegalforms.com/formspackages/living-wills-package.htm ) for each state,
which are drafted in compliance with particular state laws. USLF offers completion or
preparation services for many of its living will forms. USLF also provides definitions
and free law summaries regarding basic living will requirements for each state.
III. Trust
a. Definition of a Trust
A trust is a legal arrangement where one person or entity (the trustee) manages certain
property or assets for the benefit of another person (the beneficiary) who actually owns
legal title to the property or assets. Upon the death of the person who created the trust, the
trust property is not subject to probate (the proceedings to determine the disposition of a
deceased person’s property at death), but passes according to the trust provisions as set
up by the creator of the trust. Therefore, a trust is often used as a replacement or
supplement to a will in order to avoid the probate process, as well as to lessen taxation.
Trusts can have important estate tax, governmental assistance, probate and personal
consequences, and therefore, should be drafted in coordination with a person’s will.
Trusts are useful estate planning options for persons with significant assets and/or
persons who have young children or family members with special needs.
To establish a trust, the property owner (referred to as a grantor, trustor, settler and/or
donor) executes a written declaration of trust which sets forth the transfer of equitable
ownership to the trustee to manage the property for the beneficiary. A trust becomes
effective only when the grantor transfers the property to the trustee. There are many types
of trusts, including testamentary trusts (created by a will to manage assets after the
grantor’s death) and living or “inter vivos” trusts (that begin during the grantor’s life, but
can be designed to continue after the grantor’s death), discussed in more detail below.
b. Duties of a Trustee
A trust creates a fiduciary relationship between the trustee and the beneficiary that
requires the trustee to perform certain duties and exercise certain powers relating to the
trust property on behalf of and solely in the best interests of the beneficiary. A trustee
must abide by the grantor’s guidelines and reasonably manage the trust funds. The
grantor himself or herself may act as the trustee by retaining ownership rather than
transferring the property, and also may name himself or herself as a beneficiary of the
trust. A grantor, however, should name an alternative or successor trustee (such as a
spouse, adult child, bank or trust company) to act when he or she is disabled or deceased.
A trustee should have experience in or knowledge regarding collecting estate assets,
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investing money, paying bills, filing accountings and managing finances for a
beneficiary.
c. Amending or Revoking a Trust
Generally, trusts can be modified to change or add beneficiaries or trustees or to change
the disposition of the trust property through a written amendment to the trust, detailing
the changes, including additions or deletions. The grantor must sign and date the
amendment to the trust. A trust need not be formally amended to add property if it
contains a provision giving the grantor the right to include property acquired after the
trust is established. In this case, the new property should simply be included in the
schedule of assets in the trust and titled in the name of the trust. Trusts can be revoked in
a writing that is signed and dated by the grantor, unless another revocation method is
specified in the trust. A revocation requires a transfer of all assets from the name of the
trust back into the grantor’s name, followed by a retransfer to a new trust. In order to
replace a revoked trust, a new trust should include the date of the old trust and specify
that it supersedes the old trust. Rather than revoking a trust, it is sometimes easier to
restate a trust in order to implement major changes.
In other instances, the grantor permanently departs with ownership and control of
property being transferred and no changes can be made to the trust at any time. In this
situation, the trust is said to be “irrevocable.”
As with other legal documents, you should review your trust periodically to confirm that
it continues to meet your particular needs and the requirements of your state. Also, see an
attorney in your local area if you have specific questions regarding setting up a trust.
d. USLF Trust Form Offerings
USLF offers many different types of trust forms ( http://www.uslegalforms.com/trusts/ )
f or many states, which are drafted in compliance with particular state laws. USLF also
provides definitions and free law summaries regarding basic trust requirements.
IV. Living Trust
a. Definition of a Living Trust
A living trust is a type of trust created during a person’s life for either lifetime and/or
after-death management of property or assets. A living trust is sometimes used as a
supplement to a will to name a person to care for a grantor’s property in the event he or
she becomes disabled or incapacitated. A living trust may be either revocable or
irrevocable. The grantor of a revocable living trust may change or revoke the trust
provisions at any time after he or she establishes the trust, while the grantor of an
irrevocable living trust may not make any changes to the trust after he or she creates it.
The grantor of a revocable living trust also retains the right to manage the property even
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if he or she is not the trustee, since he or she has reserved the right to change the terms of
the trust, the trustee and the trust property at any time.
If all or most of a deceased person’s assets are transferred to the trust while the person is
still living, the probate process can be avoided. Some revocable living trusts are
accompanied by what is called a “pour-over will” to account for assets that are not
transferred to the trust while the person is alive. The pour-over will specifies that at
death, all assets not owned by the trustee should transfer to the trustee of the trust.
b. Requirements for Making a Living Trust
In order to prepare a living trust, you must meet your state law requirements. State laws
vary but usually require the following:
You must execute a living trust declaration stating that you are creating a trust
to hold property for the benefit of yourself, your family or another person(s).
You may also include in this document your major assets that you are
transferring to the trust, or reference and create a separate document (a
schedule) that details the exact property to be included in the trust.
You must change the ownership registration of the property you transfer to the
trust (such as deeds or brokerage or bank accounts) from your name to the
name of the trust.
Even though the trust is the technical owner of the property in the living trust,
you must still report any income you receive from the assets of the trust
directly on your income tax return, since you retain the right to use and enjoy
the property.
You may have to register your living trust with your state.
Although an important estate planning tool for managing your affairs, living trusts, like
other types of trusts, can be costly and may have estate tax, governmental assistance,
probate and personal consequences that you need to consider. It is important to seek the
advice of an attorney in your area if your have questions regarding these factors.
c. USLF Living Trust Form Offerings
USLF offers many different types of living trust forms for each state, which are drafted in
compliance with particular state laws ( http://www.uslegalforms.com/livingtrusts/ ), and
living trust preparation/completion services ( http://www.uslegalforms.com/estate-
planning.htm ). USLF also provides definitions and free law summaries regarding living
trusts.
V. Durable Financial Power of Attorney
a. Definition of a Durable Financial Power of Attorney
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A durable financial power of attorney allows you to name a person to make your
financial decisions for you if you become incapacitated or are unable to make such
decisions yourself. A durable financial power of attorney can become effective as soon
as it is signed, or you may specify that it becomes effective when a doctor certifies that
you have become incapacitated (unable to act or respond on your own behalf).
b. What Happens if You Become Incapacitated Without a Durable
Financial Power of Attorney
If you do not have a durable financial power of attorney and you become incapacitated,
your spouse, partner or relatives may have to seek court authority over your financial
affairs by asking a judge to rule that you are unable to handle your own finances. (Your
spouse has some authority over property you own together, such as paying bills from a
joint account, but may have limited authority to sell property owned by both of you). A
court will appoint a conservator, guardian of your estate, committee or curator who may
be required to post a bond, prepare financial reports to be filed with the court and seek
court approval for certain financial transactions. You can avoid these time-consuming
and costly conservatorship proceedings by preparing a durable financial power of
attorney.
c. Appointment of Attorney-in-Fact
The person you arrange to act on your behalf through your durable financial power of
attorney is called your attorney-in-fact or your agent. You may want to name an alternate
attorney-in-fact in the event the person you name is unable to serve in this capacity. Your
attorney-in-fact must keep your best interests in mind, maintain accurate records, avoid
conflicts of interest and keep his or her property separate from yours. You may give your
attorney-in-fact as much or as little authority over your finances as you desire. You may
wish to give your attorney-in-fact some or all of the following powers:
Using your assets to pay your (and your family’s) bills and daily expenses
Buying, selling, maintaining, paying taxes on and mortgaging real estate and
other property
Collecting Social Security, Medicare, or other government program, civil or
military service benefits
Investing in stocks, bonds and/or mutual funds
Handling transactions with banks and other financial institutions
Buying and selling insurance policies and annuities
Filing and paying taxes
Operating your small business
Claiming property you receive (such as from an inheritance)
Transferring property to an existing trust
Hiring a court representative, and/or
Managing your retirement accounts.
d. Revoking a Durable Financial Power of Attorney
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You may revoke your durable financial power of attorney at any time as long as you are
mentally competent (of sound mind and able to manage your own affairs).
Your durable financial power of attorney will end at the point you revoke it, a court
invalidates it, upon your divorce in some states or upon your death. As a result, you may
not give your attorney-in-fact the power to handle your affairs after your death, such as
making funeral or burial arrangements, paying your debts or transferring your property.
You must use a will to name an executor for these purposes.
e. Requirements for Making a Durable Financial Power of Attorney
In order to create a durable financial power of attorney, you must meet your state law
requirements. State laws vary but usually require the following:
You must be at least 18 years old.
You must be of sound mind.
Your durable financial power of attorney must be in writing.
You must sign the document in front of a notary public. Some states may also
require you to have witnesses of your signature.
You must file a copy of your document at the local land records office if you
give your attorney-in-fact authority over your real estate.
A few states require you to record a copy of your document.
f. USLF Durable Financial Power of Attorney Form Offerings
USLF offers definitions and many different types of durable power of attorney forms,
including durable financial power of attorney forms for each state, which are drafted in
compliance with particular state laws, as well as preparation/completion services
( http://www.uslegalforms.com/powerofattorney/ ).
VI. Durable Healthcare Power of Attorney
a. Definition of a Durable Healthcare Power of Attorney
A durable healthcare power of attorney is a document that allows you to appoint a
healthcare agent (attorney-in-fact for healthcare or healthcare proxy) to make some or all
healthcare decisions for you when you are unable to make those decisions on your own.
A durable healthcare power of attorney may also be referred to as a medical power of
attorney or a healthcare proxy. Your durable healthcare power of attorney may cover any
type of healthcare decision, not just decisions related to life-sustaining medical
treatments. You may direct your agent to follow the instructions in your living will, as
well as to make other healthcare decisions as necessary, or you may allow your agent to
make all healthcare decisions based on his or her own judgment. Although you should
include specific intentions regarding your medical care, you should not write your
instructions in a manner that restricts your agent’s authority in ways you do not intend.
9
Be sure to give your agent some discretion and flexibility in making healthcare decisions
in the event unexpected circumstances arise. If you give your agent complete authority to
supervise your medical care, he or she will usually be allowed to consent or refuse
consent to any medical treatment (with some exceptions), authorize transfer to another
physician or facility, confer with medical personnel, visit you in the hospital despite
visitation restrictions, access your medical records and other personal information, and
acquire court authorization to obtain or withhold medical treatment if a hospital or
physician refuses to honor your wishes or your agent’s authority.
b. When a Durable Healthcare Power of Attorney Becomes Effective
Unless you live in a state that allows you to give your agent immediate authority to
manage your healthcare, a durable healthcare power of attorney becomes effective when
you cannot make your own healthcare decisions, regardless of whether you are suffering
a terminal illness or permanent unconsciousness. Your agent and your physician may
determine whether you are capable of making your own healthcare decisions according to
state laws that provide specific procedures for making this determination. Alternatively,
you can include in your durable healthcare power of attorney other effective dates or
other factors for determining whether you can make healthcare decisions. You can also
include in your durable healthcare power of attorney that your agent’s authority will end
on a specific later date or event before your death. Otherwise, your agent’s authority will
normally end upon your death, unless you live in a state that allows you to give your
agent permission to oversee the disposition of your body. This would involve requesting
an autopsy and following your desires regarding organ donation. You must specifically
grant such authority to your agent in your durable healthcare power of attorney.
c. Appointment of an Agent
You should appoint as your agent a person you trust and with whom you can easily
discuss your medical care, such as your spouse, partner, child or other relative or close
friend. You should appoint an assertive individual who is able to get along with your
physician or healthcare provider, as well as your family members. You should discuss
your desires regarding medical treatment with your attorney-in-fact, and such person
should support your wishes regardless of his or her own preferences. You may also want
to appoint an alternate agent in case your first choice is unavailable. Many states do not
allow a healthcare provider or an employee of a healthcare facility where you receive
medical treatment to serve as your agent. Some states, however, allow you to appoint a
healthcare provider as your agent if you are related to that person or if you and that
person both work at the same healthcare facility. Some states also prohibit you from
appointing guardians of your finances or conservators, employees of government
agencies who are financially responsible for your care and any individual who serves as
an agent for ten or more persons. You should discuss your intentions with the person you
wish to serve as your agent.
If you cannot name a person you trust to make healthcare decisions for you as your agent,
you should not name an agent. If you choose not to prepare a durable healthcare power of
10
attorney, you should at least prepare a living will describing your wishes for medical
treatment and discuss your preferences with your physician or healthcare provider. See
below for further information regarding healthcare directives, which include a durable
healthcare power of attorney.
d. USLF Durable Healthcare Power of Attorney Form Offerings
USLF offers many different types of durable power of attorney forms, including durable
healthcare power of attorney forms for each state, which are drafted in compliance with
particular state laws ( http://www.uslegalforms.com/powerofattorney/ ), as well as durable
healthcare power of attorney preparation/completion services. USLF also provides
durable healthcare power of attorney definitions and free law summaries.
VII. Healthcare Directive
a. Definition of a Healthcare Directive
The term “healthcare directive” refers to documents such as a living will and a durable
healthcare power of attorney, which enable you to exercise your legal right to accept or
refuse life-prolonging as well as other medical treatments. Other names used in various
states for these documents include medical directive, directive to physicians, declaration
regarding healthcare, designation of healthcare surrogate or patient advocate designation.
In order to ensure that your physician or healthcare providers adhere to your healthcare
preferences, you should consider preparing or having prepared for you a living will and a
durable healthcare power of attorney. Most states allow you to combine both a living will
and a durable healthcare power of attorney into one document known as an advance
directive, while some states require separate documents. If you prepare these documents
separately, you should make the documents compatible with each other. Some states
require you to use the particular state’s statutory advance directive forms, while others
even require the inclusion of specific language.
b. Requirements for Making a Healthcare Directive
In order to prepare healthcare directives, you must meet your state law requirements.
State laws vary but usually include the following requirements:
You must be an adult (18 years of age or older). A few states allow parents
to make healthcare directives for their minor children.
You must be of sound mind. This means that you understand the nature of
the healthcare directives, including what they contain and how they work.
Your healthcare directives must be in writing.
You must sign your healthcare directives, or if you are physically unable,
you must have them signed for you. Some states require that any agent
you appoint must also sign the healthcare directives.
Your signature must be witnessed by at least two witnesses who also sign
your healthcare directives. (Your witnesses should not be related to you,
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should not have financial responsibility for your healthcare, should not be
your agent or healthcare representative and should not be named in your
will to receive part of your estate.) Some states also require that you sign
your healthcare directives in the presence of a notary public.
Before preparing your healthcare directives, you may need to communicate with your
physician, family members and/or close friends regarding the following:
the various roles you desire yourself, your physician, your family
members and/or close friends to play in making your medical decisions
the effect of your religious beliefs and values on your medical decisions
the various kinds of medical procedures frequently administered to
terminally ill or permanently unconscious patients (such as transfusions of
blood and blood products, cardio-pulmonary resuscitation, diagnostic
tests, dialysis, administration of drugs, use of a respirator and surgery) and
what you want such treatments to accomplish
your own personal or family medical history
your views regarding artificial feeding and fluids
your views regarding treatment used to prolong life regardless of
remaining quality of life
your views regarding organ, tissue or whole body donation and the
purposes for donation such as transplant, therapy, research or education
Most healthcare facilities must inform you of their policies regarding healthcare
directives when you are admitted to the facility. Physicians or healthcare providers must
generally comply with your healthcare directives and/or your agent’s decisions as long as
they are a reasonable interpretation of your desires. A healthcare provider may refuse
your agent’s decision if it is contrary to the healthcare provider’s conscience or one of the
healthcare institution’s policies based on conscience. A healthcare provider may also
refuse your agent’s decision if it would lead to ineffective healthcare or a violation of
generally accepted healthcare standards. A physician or healthcare provider who refuses
to comply with your healthcare directives typically must transfer you, if you so desire, to
another physician or healthcare provider that will honor your wishes. Your physician or
healthcare provider, however, may or may not follow the instructions in your healthcare
directives if you are pregnant, depending on your stage of pregnancy, the risks to you and
your child, and the healthcare provider’s or facility’s policies. Your physician or
healthcare provider may not be held civilly liable for relying in good faith on your
agent’s statements and decisions or for following the instructions in your healthcare
directives as long as such instructions abide by reasonable medical standards. Likewise,
your physician or healthcare provider may not be liable for refusing to end your life-
sustaining medical treatment.
c. What Happens if You Fail to Prepare a Healthcare Directive
If you fail to prepare healthcare directives, many states have family consent or health
surrogate laws that allow someone else, usually a family member in order of kinship, to
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make some or all healthcare decisions for you. Some states allow a close friend to make
healthcare decisions when family members are unavailable. In states that do not have
family consent or health surrogate laws, physicians and healthcare providers may consult
a close family member regarding healthcare decisions, but will not likely involve a friend
or unmarried partner. If you do not prepare healthcare directives, your family members
will be forced to make healthcare decisions based on what they believe you would prefer.
If they do not know your preferences, they will have to make healthcare decisions based
on what a reasonable person in a similar situation would prefer. Keep in mind that family
members may not agree with each other regarding your preferences unless you make
them known through your healthcare directives. Physicians and healthcare providers may
rely on their own discretion when faced with controversial decisions over which there is a
disagreement among family members. A worst case scenario would be the necessity of a
court proceeding to resolve such disagreement. As a last resort, if you have no close
family members or surrogate available to make healthcare decisions for you, a court may
be forced to appoint a guardian or conservator to make such decisions.
You should inform a close friend or relative of the location of a copy of your healthcare
directives as well as provide a copy to an appointed agent. You should inform any agent
you name of the location of the original document. You should also provide a copy of
your healthcare directives to your physician and request that a copy be placed in your
medical record. When entering a hospital or nursing home, you should take a copy of
your healthcare directives and request that they be included in your medical record at the
particular facility.
d. Revoking or Amending a Healthcare Directive
You may revoke your healthcare directives orally or in writing at any time as long as you
are competent. You should communicate your intent to revoke your healthcare directives
to your agent, family and physician. As with a regular will, you should update your
healthcare directives periodically to ensure that they continue to comply with your values
and desires. You may also revise your healthcare directives at any time as long as you are
competent. You must follow the witness and signature requirements listed above just as
you did when you prepared the original healthcare directives. Although acceptable
methods of canceling or amending healthcare directives may vary from state to state, the
best practice for changing your healthcare directives is to destroy the old documents and
create new ones. You should notify the persons who have copies of your healthcare
directives of any changes you make or provide them with a copy of your new documents.
e. USLF Healthcare Directive Form Offerings
USLF offers many different types of healthcare directive forms for each state, which are
drafted in compliance with particular state laws
( http://www.uslegalforms.com/livingwills/ ;
http://www.uslegalforms.com/powerofattorney/ ), as well as preparation/completion
services. USLF also provides healthcare directive definitions and free law summaries.
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VIII. Do Not Resuscitate (DNR) Order
a. Definition of a DNR Order
A DNR order is an order that informs emergency personnel that you do not wish to
receive cardiopulmonary resuscitation (CPR) or other life support in a medical
emergency when an ambulance is called. Other names for DNR orders include Out-of-
Hospital DNR Orders and Comfort-Care-Only Orders. A DNR order can supplement
your living will or durable healthcare power of attorney if you do not wish to receive life-
prolonging treatment when you are close to death. If you are hospitalized, you may ask
your doctor to add a DNR order to your medical record. If you are not in the hospital, you
may make a pre-hospital DNR order for use in the event you need paramedics in your
home or care facility. DNR orders generally require your consent and your physician’s
signature. You will receive a document or special identifying arm bracelet that must be
visible in a medical crisis to indicate that you do not desire life support.
b. USLF DNR Order Form Offerings
USLF offers DNR definitions and forms for many states, which are drafted in compliance
with particular state laws (DNR forms are listed along with power of attorney and
healthcare forms under each state, if available
http://www.uslegalforms.com/powerofattorney/ ).
IX. Information Relating to Other End of Life Issues
a. Identification of Other Healthcare, Funeral and Burial Preferences
In addition to preparing documents relating to your finances, property and your
healthcare decisions, you may also want to compile information regarding your intentions
for other end of life issues, such as other healthcare, funeral and burial preferences.
Specifically, you should identify the particular hospital and the particular physician or
healthcare provider at which and from whom you prefer to receive medical care. You
should also include the location of the preferred funeral home, specific information
regarding the funeral service and contact information for preferred pallbearers. Further, it
is a good idea to document burial arrangements including identification of the preferred
cemetery and location, body donation or cremation preferences, as well as the location of
any deed for a cemetery plot.
b. USLF Form Offerings
USLF offers a Document Locator and Personal Information Package Including Burial
Information Form, which contains a personal planning information and documents
inventory form that enables you to document information relevant to your life and
personal planning, such as your healthcare, funeral and burial preferences. (To locate this
form, go to www.uslegalforms.com and search for “burial information” in search terms
for your particular state).
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USLF also offers a way for you to organize and store all of your legal, personal and
financial documents in an accessible, convenient and safe location through its Life
Documents Planning Package with Organizer ( http://www.uslegalforms.com/personal-
planning-package2.htm ).
X. Estate Planning and End of Life Checklist
As this LegalLife™ Estate Planning and End of Life Issues Guide makes clear, advance
planning for end of life events is crucial and beneficial for you, your family members and
loved ones. The following checklist may aid in the process of getting your estate planning
and end of life legal affairs in order:
a. Will
[ ] I have made a Will that sets out my wishes regarding the disposition of my
property after my death.
[ ] My Will also provides for the care of my dependent minor children after
my death through a named guardian.
[ ] My Will names an executor or personal representative, as well as an
alternate, to carry out the wishes in my Will.
[ ] I have reviewed my Will to make sure it reflects changes in my
personal/family circumstances.
b. Trust/Living Trust
[ ] I have determined that a Trust/Living Trust arrangement is not useful for
my circumstances.
[ ] I have determined that a Trust/Living Trust arrangement is useful for my
circumstances and have set up a Trust/Living Trust for the benefit of myself, my
family or another person(s).
[ ] I have named an alternate trustee in the event the original trustee becomes
disabled or deceased.
[ ] I have reviewed my Trust/Living Trust to make sure it reflects changes in
my personal/family circumstances.
c. Durable Financial Power of Attorney
[ ] I have made a Durable Financial Power of Attorney naming an attorney-
in-fact to make my financial decisions if I become incapacitated or am unable to
make such decisions myself.
[ ] I have made a Durable Financial Power of Attorney naming an attorney-
in-fact to make my financial decisions immediately.
[ ] I have named an alternate attorney-in-fact in the event the original
attorney-in-fact is unable to act in this capacity.
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d. Healthcare Directives
i. Living Will
[ ] I have made a Living Will that describes the healthcare I would or would
not want to receive if I become terminally ill or incapable of making healthcare
decisions.
[ ] My Living Will includes my wishes regarding resuscitation, bodily organ
and tissue or whole body donation and various medical procedures.
[ ] I have also designated an agent, as well as an alternate agent, in my Living
Will to carry out the wishes set forth in my Living Will.
[ ] I have discussed with my agent and alternate agent my specific desires
regarding medical care.
[ ] I have provided a copy of my Living Will to my physician and requested
that a copy be placed in my medical record.
[ ] I have provided a copy of my Living Will to my appointed agent and
alternate agent and informed them of the location of the original document.
ii. Durable Healthcare Power of Attorney
[ ] I have made a Durable Healthcare Power of Attorney naming a healthcare
agent to make some or all healthcare decisions for me when I am unable to make
those decisions on my own.
[ ] I have directed my agent to follow the instructions in my Living Will and
to make other healthcare decisions as necessary.
[ ] I have directed my agent to make all healthcare decisions based on his or
her own judgment.
[ ] I have specified that my agent and physician should determine whether I
am capable of making my own healthcare decisions according to state laws, if
available, that provide specific procedures for making this determination.
[ ] I have included in my Durable Healthcare Power of Attorney other
effective dates or other factors for determining whether I can make healthcare
decisions.
[ ] I have discussed my desires regarding medical treatment with my agent
and my physician.
[ ] I have appointed an alternate agent in case the original agent is
unavailable.
[ ] I have provided a copy of my Durable Healthcare Power of Attorney to
my physician and requested that a copy be placed in my medical record.
[ ] I have provided a copy of my Durable Healthcare Power of Attorney to
my appointed agent and alternate agent and informed them of the location of the
original document.
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e. DNR Order
[ ] I have made a DNR Order to inform emergency personnel that I do not
wish to receive CPR or other life support in a medical emergency.
[ ] I do not wish to prepare a DNR Order.
f. Other
[ ] I have identified in writing the particular hospital and the particular
physician or healthcare provider at which and from whom I prefer to receive
medical care.
[ ] I have identified in writing the location of my preferred funeral home,
specific information regarding the funeral service and contact information for my
preferred pallbearers.
[ ] I have identified in writing my preferred burial cemetery and location,
including information regarding location of a deed for a cemetery plot, if
applicable.
[ ] I have identified in writing my body donation and/or cremation
preferences.
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