Who’s In Charge of Your Last Wishes?

last wishes

Family may not always be best choice

Selecting the right individual(s) to carry out your last wishes under your Will, Health Care Directive and Power of Attorney should be one of the most important considerations you make during the estate planning process. Choosing the correct decision-maker (known as the “fiduciary”) will directly impact your healthcare and financial decisions (during your life) and the probate process (after you pass away).

Will: As background, the fiduciary under your Will is known as the Executor. Generally, the Executor’s job is to pay your estate debts, honor your funeral wishes and make your desired distributions to your beneficiaries. Note that more than one individual may be appointed as your Executor and it is wise to select back-ups. When choosing an Executor, consider someone who is trustworthy, organized, loyal and dedicated to following your directions and carrying out your last wishes. The surviving spouse is most often placed in this position by default, though there is no legal requirement that you must choose a family member for this task.

Healthcare Directive/Living Will/Medical Power of Attorney: The person you designate in your Healthcare Directive to make decisions on your behalf is known as your Healthcare Representative or Agent. This person is responsible for making medical, surgical or life support decisions for you when you are unable. You may appoint more than one person to this task and he or she may also have access to your private personal health information, so choose wisely. There is no requirement that this person be related to you and it is best to discuss your medical and life support desires in advance of a crisis. Finally, be sure to select individuals who will carry out your medical desires, notwithstanding their own personal beliefs.

Durable Power of Attorney: The person you select to make financial and legal decisions on your behalf is known as your agent or attorney-in-fact. Depending on the type of Power of Attorney, this person can be responsible for making financial decisions for you even when you have the mental capacity to make such decisions on your own. This means that trustworthiness and loyalty should be extremely important criteria in your selection process. Like your Will and Healthcare Directive, you can appoint more than one person and it is wise to have back-ups. Also give serious thought to the level of gifting power you grant to your fiduciary.
Lastly, when selecting the appropriate fiduciary, also consider such individual’s own health, age and ability to make tough decisions. One size does not fit all and a person who is perfect as your medical decision-maker may be a poor choice when finances are involved.

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About Dan Del Collo

Daniel Del Collo, III, Esq. is an attorney at Rice Elder Law, a four-attorney firm with offices in Cherry Hill and Ocean City, NJ. Daniel focuses his practice in the areas of Estates and Elder Law, including Wills, Trusts, Guardianships and Medicaid planning. He also specializes in financial planning for individuals with disabilities and those in need of home health, assisted living and nursing home care. www.riceelderlaw.com

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