Understand that Wills Are Part of a Package
Any estate planner worth his or her salt is going to discuss the benefits of Advance Medical Directive and Durable Financial Power of Attorney documents. Sometimes, depending upon the circumstances, these documents are much more important than the Will.
Q: What is the importance of the Power of Attorney documents in regards to guardianship?A: The more deeply entrenched in guardianship litigation I become, the more I see the value of having a valid Power of Attorney. Admittedly, there are times when these documents are insufficient to provide the right protections to an individual, but I would much rather help a family by providing a Power of Attorney document, and avoid the costly, time-consuming, and sometimes emotionally draining process of applying for guardianship for someone who is already incapacitated.
Q: Do both individuals need these documents when they are married?A: With regard to Financial Power of Attorney documents, many married individuals think that their spouse does not need a Power of Attorney to act on their behalf, but that is simply not true. If the incapacitated spouse needs expensive medical care, the healthy spouse may need to cash in the 401K or sell the jointly- owned house - that cannot happen without a guardianship or Power of Attorney document, and the Power of Attorney is much easier and much less expensive.
Q: How do Advance Medical Directive documents provide additional solace to the family and individualA: Advance Medical Directive tells a person's family whether he or she wants life-sustaining treatment, and also appoints a decision maker. It also allows the family access to medical information so they can make informed decisions.
Q: In New Jersey, who is the decision making person in these circumstances?A: Under New Jersey law, there is no priority of right as to who the decision-making person should be in these circumstances. The standard for withdrawing life-sustaining treatment is (1) what would the person wanted (a difficult thing to prove) and (2) what are in the person's best interests (a difficult thing to decide).