by Attorney Alyson C. Fudge, Founder of the Lowcountry Law Office on Aging, Medical Health & Disabilities, LLC
As an Elder Law Attorney, I speak to seniors and their adult-children on a regular basis regarding the myriad of legal issues surrounding the aging process. After more than a decade of practicing law and speaking several times a month, you would imagine that I have answered everyone’s questions by now. However, the number of questions keeps increasing as quickly as I can answer them. Some of the most common questions stem from continued confusion over three “basic” documents—a Will, a Durable Power of Attorney and a Health Care Power of Attorney. So, let’s take them one at a time and discuss exactly what they are—and what they are not.
A Will is what we call an “after-death document.” Why? Because it doesn’t take effect until after you die. It’s a simple as that. The purpose of a Will is to do two things: Name the person who is going to take the Will through probate and say who gets what at the end of the probate process.
The person who is named to take the estate through probate is called the “Personal Representative.” Most people are familiar with the term “Executor” and the term “Personal Representative” actually means the exact same thing. But this is South Carolina, and we like to be different. So we use a term with which no one is familiar instead of the term everyone knows, because, as I’m sure you can imagine, a person who has recently lost a loved one and is grieving really wants to learn new things. And although someone is named, or nominated, to be a Personal Representative, a person only actually becomes a Personal Representative when they are appointed by a Probate Court Judge. This explains why, as I’ve often said before, just because you are nominated as Mom’s Personal Representative, as long as Mom is alive, you are just a nominee. You have not won the Prize yet. When Mom passes away, her will and her death certificate are filed with the Probate Court and her estate is formally opened—which includes the Court appointing a Personal Representative.
In contrast with the “after-death document,” we have two other documents which are “lifetime documents”—the Durable Power of Attorney and the Health Care Power of Attorney. The Durable Power of Attorney confuses people the most. Folks think that “Durable” means that the document continues to work after the person is dead. Nope. Not even close. We call Powers of Attorney “lifetime” documents because that’s when they are in effect—as long as the person is alive. When Dad dies, both of his Power of Attorneys die with him. Dead people have Estates and a Personal Representative. Living People have Agents named in Powers of Attorney. There is no overlap between the documents.
They all do different things, and they do them at different times. The term “Durable” actually means that the document continues to work after Dad loses mental capacity but is still alive. The Durable Power of Attorney gives someonethe legal authority to handle issues such as money, government benefits and real estate.
Health Care Power of Attorney
The flip-side of the coin is the Health Care Power of Attorney. The Health Care Power of Attorney states who has the legal authority to talk to doctors, consent to medical treatment, make decisions regarding caregivers and facilities, and lastly, make end of life decisions when Mom can no longer communicate or make these types of decisions for herself. Some people get confused about this document as well because they do not realize that it is a very specifically written document created by our state legislature in Columbia. It says “South Carolina Health Care Power of Attorney” at the top of the very first page. Any other document which lists a certain number of “wishes” in its title is created and sold by a corporation in Florida, and should not be confused with the official South Carolina Health Care Power of Attorney.
With respect to making medical decisions for another adult—whether that adult is a parent, an adult child or a spouse, talking about your “wishes” doesn’t count. Please remember that even family members need legal authority to handle the affairs of another adult. If the proper documents are not signed before they are needed, a trip to your local Probate Court Judge with your attorney in tow will be the only remaining option. Whereas going to Court is fantastic for those of us who are attorneys, families are best served by staying out of Court and keeping their money in their pockets.
By understanding and obtaining all three of these documents, you are in the best possible position to decide who will or will not be able to handle your affairs when you can no longer do so for yourself.