Legal Documents Everyone Should Have
A little more than a quarter-century ago, a young woman named Terri Schivo had a heart attack in the apartment she shared with her husband in St. Petersburg, Florida. She was resuscitated but suffered massive brain damage. Schivo was left in a persistent vegetative state, eventually kicking off a lengthy legal battle that pitted her husband, who wanted his wife's feeding tube removed, against her parents, who wanted her kept alive. After seven years, some 14 appeals and interventions by lawmakers and President George W. Bush, Schivo's feeding tube was disconnected. She died on March 31, 2005.
Although during the infamous case’s long string of lawsuits people close to Schivo testified she never would have wished to be kept alive in such a state, Schivo hadn’t prepared a living will.
“If you don’t write down those intentions, nobody knows what they are,” notes attorney David Getz of the Harrisburg law firm Wix, Wenger and Weidner. “But I think it’s also about taking the decision out of the hands of your family. So, it’s very important to have those documents for your own peace of mind and your family’s peace of mind. Dying is a really difficult time for everybody involved, and it’s made more difficult if there’s indecision and not knowing what people want.”
End-of-life directives aren’t the only legal documents necessary to protect us. Wills, powers of attorney – for financial as well as medical concerns – and prenuptial agreements are all generally recognized by lawyers as crucial for their clients to possess. A financial power of attorney lets someone else, typically a spouse, child, parent or trusted friend handle your monetary affairs. This is particularly useful as you get older. For example, if arthritis causes check writing to become too painful or if confusion is an issue, a financial power of attorney enables someone else to pay those bills for you. A medical power of attorney is similar to a living will but covers more than deathbed concerns, making it possible for someone to receive your medical information and make health care decisions for you if you are incapacitated.
Wills are especially vital for anyone with children. They allow you to name a guardian for your children if you and your partner pass away. This prevents the state from stepping in and deciding who will care for your children or the equally unpalatable possibility of relatives fighting over guardianship.
“Without a will, the result could be that a judge – who is a stranger to the family – has to decide what is best for the child,” notes Getz, “And the next thing you know, you can have an argument while the family is in mourning, and it’s tragic. So it’s best to name who you want to be the guardian of your child.”
Even unmarried individuals with no children should have a will thanks to intestacy, a state law that mandates how your property will pass to your heirs in the absence of a duly executed will. In essence, if you die without a will, the state will make one for you, distributing your assets to your next of kin, who could be someone you’ve had a falling out with or never met.
“Everyone has heirs,” says Mark Hipp, an attorney with Harrisburg firm Mette, Evans & Woodside. “Even if you think you don’t have anyone, the intestacy statute will methodically search out next of kin. I do have clients who wish to leave funds to charity, so having a will would allow you to select the charity and make sure the funds go where you want them to go, rather than to someone with whom you have absolutely no relationship with whatsoever.”
Prenuptial agreements, which provide for distribution of a couple’s assets should the marriage fail, are also important. Without a prenup, divorce proceedings can drag on for years, greatly increasing litigation costs and emotional pain.
“No. 1, prenuptial agreements get the parties talking about finances, which a lot people who are getting married don’t even think about,” says Laurie Saltzgiver, managing partner of Harrisburg’s Meyers, Desfor, Saltzgiver and Boyle. “But, in the event of divorce, you can decide, for instance, you’d want to keep my pension, plus any increase in my pension. If one of the parties has a home prior to the marriage, they can discuss what they would want to have happen to that home if they were to become separated or divorced. So, I think that prenups are really a good thing and important for anyone who is getting married.”
If wills and the other facets of estate planning force people to consider the idea of death, prenups make them tackle the possibility of divorce. Neither issue is pleasant, but preparing for them with legal documents provides undeniable protection as well as blessed peace of mind.