Drawing up a power of attorney a 'scary step'
Nobody runs from making a will. It forces the acknowledgement, “I’m going to die.”
People hate to think about drawing up a durable power of attorney, however. It forces us to think, “Someone might have to wipe my bottom.”
A social worker made this observation at a workshop sponsored by the Funeral Consumers Alliance of South Carolina and led by attorney Judith Whiting, who specializes in elder law.
“These are two documents everyone 18 years and older should have,” Whiting said at the gathering at the Unitarian Universalist Fellowship in Columbia in late March, but she admitted she can’t get her own children to complete the paperwork.
“People identify the last will and testament as a necessary document,” Whiting said, and it’s easier because it doesn’t take affect in the lifetime of the person who created the document.
If you die without a will, the State of South Carolina will disperse your estate first to your spouse and children; or if there are none, it goes to your parent(s); or, third, to your siblings. It will even search for heirs if none of the former can be found – but that’s expensive and can drain an estate. “So if you die without a will, it’s not a big deal,” Whiting said.
Living in poor health and without a durable power of attorney and/or healthcare power of attorney, however, can be a really big deal. “This is the most critical document,” the attorney said. “It identifies the person(s) to make decisions about my finances when I am unable.” If the person is within an age-bracket when failing health is commonplace, she advises that the DPOA take effect right away. If you’re healthy one day and not the next, the “agent” (person you have named) would have to go to court to become a conservator. A DPOA might cost $800 in legal costs while getting a conservator named might cost $8,000, Whiting said.
Another option is for the document to have a “springing power,” when certain identifiable stages have been reached. “This is something younger people (healthy people in their 60s perhaps or even people in their 20s) find more palliative.”
“Yes!” Whiting said unequivocally. You can revoke the power of attorney decided upon earlier provided you have the same capacity to execute a contract.
Whiting refuses to do a power of attorney sought by a friend or relative until she has met the person who would give the authority; upon meeting the person, she might demand to have a written physician’s opinion before she assists someone to obtain the power of attorney.
The principal’s assets cannot be used for the agent’s personal use unless the DOPA specifically says so. Such a violation of fiduciary duty can be brought to court by a friend as well as a family member.
Naming only one person can be dangerous because that person can become incapacitated. It is should be “X” or “Y” or “Z” in order of choice, not two or three concurrently.
Tell the people you’ve named, Whiting insisted and discuss with them what your wishes are and where the document(s) are. “Talk with them when everyone is rational,” she urged; not when everyone is upset and worried.
Whiting also suggested a child might not be the best choice after your spouse, as it’s hard for a child not to be overcome with emotion – or guilt for living in another place – and to be objective.
The person(s) selected should be a responsible person with no history of bad decisions or additions.
A durable power of attorney also allows your spouse to sell a house if need be to make life easier for him or her and use the money for the principal’s benefit as well.
The DPOA must be filed in the state of the principal’s residence; if there is a home out-of-state, you may want to have it filed there as well. For example, if a home in North Carolina needed to be sold, that document on file would provide the necessary clear title, allowing the spouse to sell it.
There is an agreement with 40 states, including those contiguous to South Carolina, to honor a copyrighted document set forth by Lutheran Hospice, Five Wishes, two of which are considered legally binding: who can make healthcare decisions for you and what kind of medical treatment you want or don’t want.
A DOPA does not kick in just because you’re going to a hospital or nursing home, but when death is imminent. Whiting noted that the anesthesia during a simple preventative test she underwent, however, left her incapacitated and unable to make decisions for herself for a short time.
A living will, which deals with medical treatment, applies when death is imminent, when the physician says, “this is the best day your loved one will ever have again.”
A DPOA tends to be long and EMS personnel don’t want to have to read 28 pages to find out what they are allowed to do, so shorter is better.
Any document you may want to be effective in another state should have a notary seal. Linda Davis, volunteer coordinator for Hospice Care of Tri County (which now serves more than its original three counties), offered the free notary service to others, 803-400-1177 or 800-894-7541.
Make your donor wishes known
Tell your loved ones you are an organ donor.
A mother attending the Funeral Consumers Alliance workshop said she was grief-stricken to learn a year later, when she happened to look at her deceased daughter’s driver’s license and learned she had wanted to donate her organs. When the mother had received a call at the time of her daughter’s death, she said a firm “no.”
“A donor designation on your S. C. driver’s license and/or a signed and witnessed donor card does grant authorization for organ and/or tissue recovery, but because of the suddenness and emotion surrounding the circumstances, both documents are rarely available at the time a family is approached regarding donation,” the Web site for Donate Life SC says.
Where to put documents
Where do you store all these documents, other than your driver’s license? A refrigerator’s freezer is suggested as that is where the EMS personnel will look. A good firebox will withstand three hours of fire reportedly. Give a copy to all the people named, file appropriate documents with the court.
Planning your funeral?
Not something we relish, but we can punish those we love by not making this final “end-of-life decision.”
The Funeral Consumers Alliance of South Carolina is part of a “national federation protecting a consumer’s right to choose a meaningful, dignified, affordable funeral.”
“We advise people on their legal rights and options,” Tony Ganong, treasurer of the state’s group that sponsored the workshop on elder law in Columbia March 27. The group is non-sectarian. The idea of such a purpose began with the Unitarians and the Quakers about 70 years ago, he said.
Want to know if you have to buy a casket from the funeral home? Ganong likes to talk to groups about these kinds of issues. You may call him to set up a program, “Five Things You Should Know about Funerals,” at your church at 803-787-9585.
There are many things assumed about funerals and thought to be in the law that are not accurate. For example, some knowledgeable person can assume the role of funeral director if someone wanted to have a home funeral, Ganong said.
Do you have to be embalmed? Except in rare cases, absolutely not. Is there a public health reason? No, according to the U.S. Center for Disease Control. However, the funeral home may say, “If you want to have a viewing, the deceased must be embalmed.” Refrigeration may be used in preserving a b
ody if there is a delay in cremation.
Ganong can provide information about grave liners, coffin vaults and other costs that drive up the death bill.
The FCASC monitors legislation that affects consumers. Those with $35 memberships have access to spreadsheets to compare costs of funeral homes in major S.C. metro areas. As volunteers come on board, cost information from smaller cities and areas will be entered.
Eco-funerals are becoming an increasingly popular consideration. The concept not only includes two green burial spots in South Carolina, one in Westminster and one in Swansea, but home funerals as well as recycling your organs are part of the changing scene.
As boomers age, bans on chemical embalming based on concerns for groundwater, prohibiting coffins of metal or rare woods in favor of more available woods assembled for rapid decomposition, burial in a shroud, and herbicide and pesticide-free cemetery lawn care are expected to become more commonplace.