Myths and Facts About Probate

I just need a Will and a Living Will. This will avoid “probate” and allow someone to make medical decisions for me if I cannot express myself.

Not true. A Last Will and Testament is a “road map” that expresses how someone wants their estate (financial and personal belongings that exist at the time of their death) to be distributed by the person they appoint as their Personal Representative.

If your home, car, bank account(s), retirement plans, life insurance policies and other assets that allow designation of a beneficiary upon your death do not make such designations, these assets, even if addressed in your Will, will be required to pass through probate, which can take at least nine months to resolve.

A Living Will is a good starting point to help you plan for medical decisions at the end of your life, because it tells your doctor and hospital what end of life treatments (respirator, dialysis, tube feedings, etc.) that you do or do not want. HOWEVER, IT DOES NOT appoint anyone to make health care decisions for you if you cannot express yourself, you are incapacitated or unconscious.

I don’t need Advance Directives (Living Will and Durable Powers of Attorney for Health Care) because I am married and my spouse can legally make these decisions for me.

It is a common misunderstanding that spouses automatically have the legal right to make health care decisions for one another. Many hospitals, nursing homes, health care workers and facilities will initially often seek direction from a spouse, but if the patient-spouse requires treatment in another facility or more advanced care, a guardianship will be required if no Durable Power of Attorney for Health Care is in place.

I have a Living Will that states that I don’t want any “heroic measures” taken to resuscitate me. Do I really need to talk with my family and doctor about this? No one likes to talk about these things.

Even though these discussions are often very difficult to start, they are essential to really having your end-of-life wishes be carried out. A Living Will that just states that you do not want “anything extreme” or “life-sustaining treatment” without more detail does not provide enough guidance to family members and health care professionals to enable these documents to be useful. Therefore, it is critical to have candid, detailed conversations with your health care providers and family about your wishes – not only for end of life treatment, but regarding autopsy, hospice, nursing home care, funeral matters – everything that is important to you. Even if your family does not like or agree with your wishes, if you document your values and wishes, the likelihood that they will follow them is greatly increased. You should explain that these are your wishes – not theirs.

My child(ren) and/or spouse’s names are on my bank account(s) so I don’t need a General (Financial) Durable Power of Attorney.

Having another person’s name on your bank account allows that person to pay bills for you, but also allows them to use the money in the account for anything else they want – even for their own use. By having someone else’s name on your bank account (even though your name is also on the account) makes that person a joint owner -this gives them the right to use the money in any way they choose.

A safer strategy that allows someone to be able to access your funds when needed to pay your bills, is to create a General (Financial) Durable Power of Attorney. If you can no longer handle your finances, the person named in your General Durable Power of Attorney would take the document to your bank, open a POA account that will be titled in their name as Attorney-In-Fact for you and then be able to pay your bills.

Additionally, a Durable Power of Attorney is necessary even if you have a trust, since there are certain powers that only a person appointed under a Durable Power of Attorney can typically do, such as filing a lawsuit, dealing with insurance issues and handling assets not in your trust.

My Advance Directives are only effective in the state in which I had them prepared, so they have no use if I move or go on vacation and something happens.

No. Every state recognizes these documents and encourages their creation. State requirements for signing, witnessing and notarizing may vary from state to state, but if the document is valid in the state in which it was prepared and complies with the most stringent signature requirements (at least two unrelated witnesses, signed and dated by the persons who created it, all in the presence of a Notary Public), these documents should be legally effective and honored in all 50 States.

I have just been diagnosed with dementia. Now I cannot have Advance Directives prepared, correct?

No. Individuals who are diagnosed with dementia, Alzheimer’s disease or other cognitive disorders are most often absolutely capable of understanding the purpose of Advance Directives and can express their wishes sufficiently to have the documents prepared. If there is a question regarding whether you have the mental capacity to have these documents created, a letter from your physician, prepared close in time to the preparation of your Advance Directives will minimize any challenges that may question your mental ability to have these documents created.

My spouse created a Durable Power of Attorney but now has Alzheimer’s disease. Is the document still valid?

Yes. The document is absolutely valid. This is the purpose of Durable Powers of Attorney – they are meant to be and specifically state that they are to be valid: 1) depending on the wording of the document, upon the occurrence of a certain event identified in the document (i.e.; effective immediately upon signing) or 2) in the event the person who created it becomes incapacitated. If the document specifies that it becomes effective when one or two physicians certifying that the Principal is incapacitated, a letter from however many doctors required by the document will need to be obtained before it can be used.

A Living Will means “Do Not Treat Me”

No, your Living Will can and should state whatever your wishes are regarding your end of life treatment. You can state that you want all, some or no life-sustaining treatment at the end of your life. “Life-sustaining treatment” is considered to be CPR, artificial ventilators, dialysis, surgery, antibiotics, artificial nutrition (tube feedings) and hydration (I.Vs) at a time when you are determined to be in terminal condition, coma, persistent vegetative state, with no reasonable chance of recovery and something changes in your condition, requiring that artificial means be used to maintain your life. Therefore, if you wish to have everything done to maintain your life (all life-sustaining measures), you should have your document clearly state these wishes. Individuals who have strongly held religious or moral beliefs should state any treatment preferences based on those beliefs in their documents and be SURE to discuss these wishes with their health care providers and family.

If I create Advance Directives, I give up complete control and I don’t want to do that.

You can always change your mind and either revoke, destroy your documents or create new documents, even if you are incapacitated. However, if you are incapacitated and revoke your documents, someone will need to go to Court and be appointed to make health and financial decisions for you.

I can’t have these documents created because I have no family in town to help me.

Although it is preferable to have someone local to be able to make urgent/emergency medical decisions for you, the person you believe will best advocate for you and honor your wishes should be appointed. Cell phones, email and faxes makes it possible for out-of-town appointees to be accessible when needed.

Written by Debra K. Schuster, from the Missouri Law Firm of Paule, Camazine & Blumenthal. Attorney Schuster is an experienced Elder Law Attorney and is a Featured Member of the National ElderCare Matters Alliance. She and her law firm are listed on – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the Issues of Aging.

Myths and Facts About Probate was last modified: June 3rd, 2019 by Debra Schuster