Mark B. Heffner is an elder law attorney practicing in Warwick, Rhode Island. His practice focuses on special needs planning, elder law and estate planning. Mark is a member of the Special Needs Alliance, and of the National Academy of Elder Law Attorneys. More importantly, at least to us, Mark is a friend of ours. We liked what he had to say about estate planning in this piece, and we asked his permission to share it with our readers. Mark graciously assented.

If "estate planning" means only planning for what happens after we die, it's understandable that many people will procrastinate or avoid estate planning entirely. But in fact, modern estate planning is first focused on what happens during life.

Proper planning provides us with the opportunity to take control over what will happen to ourselves and our assets in the event that we became incapacitated due to an accident or an illness. It's about planning for a time when we will be most vulnerable. By making these choices in advance, we are able to prevent choices being forced on us by well-meaning friends or relatives, or worse yet, strangers.

A prime example is a now-common estate planning tool which was virtually non-existent as recently as 25 years ago. Known as a Durable Power of Attorney for Health Care (or similar name depending on the state), this tool is the result of the adoption by legislatures across the country of statutes authorizing these devices. "Durable" refers to the fact that the Power of Attorney will continue to be effective after we become incapacitated (although it will cease at our death).

By incorporating a Durable Power of Attorney for Health Care as part of our estate planning, each of us can designate in advance whom we wish to take our place in dealing with physicians and other health care providers in the event that we are unable to make decisions for ourselves. In addition to choosing the individual or individuals who will make these decisions on our behalf, we can express in these Durable Powers of Attorney for Health Care our specific desires as to what decisions are to be made.

Many people utilize these devices to express their desire that, in the event they are in a terminal condition or "persistent vegetative state" with no reasonable expectation of recovery, they desire that artificial means of life support either be withheld or withdrawn. In addition to these "end-of-life" decisions, the Durable Power of Attorney for Health Care can also be utilized to direct how we wish to be cared for during periods of incapacity. For example, together with the Financial Powers of Attorney discussed below, the Health Care Power of Attorney can be used to express our preference for home care versus institutional care (if medically possible), and to direct that our funds be utilized for those purposes.

This is just one example of how we can control who is in charge of our assets, as well as to give specific directions as to how assets would be used. We do this through the utilizing another modern estate planning tool, known as a Durable Power of Attorney for Finances. While health care and financial decisions intersect at certain points, these directions are often, and in many ways are preferably, expressed through two different documents. In addition, many people select one individual to serve as agent under a Durable Power of Health Care and a different individual as agent under their Financial Durable Power of Attorney. The choice of that person is critical, as we are relying primarily on of the individual whom we select, who in turn may be faced with circumstances we cannot presently foresee.

For individuals who do not take advantage of these and other estate planning tools and who become incapacitated during their lifetime, the only alternative is often the intervention of a probate court. Like estate planning, most people think of probate as occurring only after death. In fact, much of the activity in probate courts presently involves people who are living and who are in need of -- but have failed to designate in advance -- substitute decision makers (or may have failed to provide them with adequate authority). Such court proceedings are expensive, time consuming and public - the opposite of what all of us would want.

By taking advantage of modern estate planning tools such as Durable Powers of Attorney, we can maintain control of privacy and greatly reduce expense. Of equal importance is the reduction of stress and disruption to family members or other loved ones who would otherwise be faced with deciding who will make decisions and what decisions will be made. A great gift we can give to these people is specific and clear direction in advance. This direction is possible through comprehensive estate planning.

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