Legal Documents All Cancer Patients Should Have
Here is a quick and dirty rundown of the basic legal documents that everyone should have prepared in case of death or physical incapacitation. As cancer patients, we have been given a special reminder that it is important to plan for the future, especially if there is the chance it will arrive more suddenly than previously anticipated. Although modern medical cancer treatments are more promising than ever and even though a growing number of advanced cancer patients are seeing their disease become treatable as a chronic condition for many years, these forms are still essential.
Power of attorney
There are various types of power of attorney documents that may be needed, though often a general power of attorney will suffice. This document assigns decision-making authority to an individual regarding financial or legal matters. When a patient is no longer able to act on his or her own behalf, this can be an essential part of keeping one's affairs in order. There may be occasions where a patient would want multiple power of attorney assignments to separate decisions regarding finances and health, for instance, or to separate business issues from personal ones.
Living will and advance directive
Informed consent is one of the lynchpins in medical treatment. This means that the patient has a full understanding of the risks and rewards of treatment, for example. In other words, the patient is completely aware of the ramifications of a decision. But if a patient is unable to give informed consent, perhaps due to dementia or being in a coma, a living will acts as a blueprint for the patient's desires about medical treatment. The advance directive names a person to make decisions on the patient's behalf (also called a medical power of attorney or durable power of attorney for healthcare). It should be noted that a living will has nothing to do with the distribution of property after death.
A "revocable living trust" takes effect while a person is still alive, unlike a will which goes into effect only after death. Both documents are used to assign assets to heirs and beneficiaries, but a trust only controls assets that are actually put into it whereas a will, through the court probate process, assigns a person's assets according to the desire expressed in the document. A trust would supersede the will only with regard to how it has been funded. Any desires outlined in the trust that had not been properly funded would then default to the details of the will or a probate court. A revocable trust generally sets up the individual as his or her own trustee until such point as the individual either becomes mentally incapacitated or dies, at which point an assigned successor trustee will step in to administer the terms of the trust. One of the major advantages of a living trust is that it can prevent assets from being tied up in probate. It also offers additional privacy, because the assets and beneficiaries in a trust remain private unless it is contested in a court of law.
Last will and testament
This is one of the most important documents that a person can leave behind, especially if there are family and property involved. While a will becomes part of the legal public record as it is administered, there is one function that a will provides that a trust cannot: it offers the opportunity to nominate a legal guardian for any minor child in the event of a parent's death. (It is possible to nominate separate individuals to be responsible for a minor child's personal care and the management of the child's assets.) A will can also designate beneficiaries of a person's property, both in terms of specific items or sums and in general terms for everything left not specifically named. Lastly, the will nominates an executor -- either an individual or an institution -- that will be responsible for overseeing and carrying out the details of the will.
These are a few items that a will does not affect: life insurance, retirement plans, or any financial accounts that have pre-designated beneficiaries for transfer upon death. Also, community property or joint assets with right of survivorship would immediately transfer to a spouse. But having these documents in place can help to greatly smooth the transitions that occur up to and beyond the end of a patient's life.1
Editor’s Note: We are extremely saddened to say that on October 21, 2018, Jeffrey Poehlmann passed away. Jeffrey’s advocacy efforts and writing continue to reach many. He will be deeply missed.
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