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Most people think of estate planning as preparing for death. But some of the most important documents in any estate plan have nothing to do with what happens after you die — they address what happens if you become unable to make decisions for yourself while you are still alive.

A stroke, a serious accident, a sudden illness, a period of cognitive decline — any of these can leave you unable to manage your finances, communicate your medical wishes, or direct your own care. Without the right documents in place, the people who love you may have no legal authority to help, even when the need is urgent. Let’s consider the documents that everyone should have in place to effectively deal with incapacity.

The Durable Power of Attorney for Finances

A durable power of attorney for finances is a legal document that authorizes another person — your agent — to manage your financial affairs on your behalf. This includes paying bills, managing bank accounts, handling investments, filing tax returns, and dealing with real estate. The word “durable” is critical: it means the document remains in effect even if you become incapacitated. A non-durable power of attorney automatically terminates the moment you lose capacity, which is exactly when you need it most.

Without a durable power of attorney, a spouse or other family member who needs to manage your finances may have no choice but to petition an Idaho court for a guardianship or conservatorship. That process is expensive, time-consuming, emotionally taxing, very invasive into your family’s privacy — and it could have been avoided entirely with a single document signed while you were healthy.

The Healthcare Power of Attorney

A healthcare power of attorney designates a healthcare proxy: a person authorized to make medical decisions on your behalf if you cannot make them yourself. People are often surprised to learn that family members, and even spouses, do not automatically have the legal right to make medical decisions for an incapacitated loved one in all circumstances. To ensure the right people do have this authority without them having to go to court for guardianship, you need to set up a health care power of attorney document.

Idaho law also recognizes living wills to address questions like: Do you want life-sustaining treatment if there is no reasonable chance of recovery? What are your wishes about artificial nutrition? Would you want to be kept comfortable and allowed to die naturally under certain circumstances? A living will document can be completed in addition to your health care power of attorney document — so that nothing is left unaddressed.

These are not easy things to think about. But they are far better answered in a quiet moment with your family and your attorney than in a hospital waiting room during a crisis — or worse, by a judge because there is a fight among your family members or treatment providers about what should happen next.

Choosing the Right People

Both documents require you to name someone you trust absolutely. A few things worth considering as you make those choices:

• Availability matters. The person you name should be someone who is reachable and able to act quickly when needed. Geographic distance is worth factoring in — though it is not necessarily the most important consideration given modern communication options (phone, email, electronic signature, Zoom meetings, etc).

• Separate roles are allowed. There is no rule that your financial agent and your healthcare proxy must be the same person. Many people choose a financially savvy family member for one role and a more emotionally attuned person for the other.

• Name backups. Life changes. The person you name today may predecease you, become incapacitated themselves, or simply be unavailable. Always designate at least one successor agent, and more than one back up is even better.

• Have the conversation. Tell your agent what you are asking them to do and what you would want. A person who understands your goals and values will be far better positioned to advocate for you than one who is left guessing.

These Documents Are for Everyone

Powers of attorney and healthcare directives are not just for the elderly. Accidents and sudden illness do not follow a schedule, and every adult — regardless of age or health — should have these documents in place. If you have an 18-year-old in college or a young adult child anywhere, that is a conversation worth having: once a child turns 18, parents no longer have automatic legal authority to make decisions on their behalf.

If these documents are missing from your estate plan, or if it has been several years since you reviewed them, our office is glad to help. Putting them in place is one of the most straightforward and meaningful things you can do to protect yourself and the people who care about you.

My law firm is currently offering free telephonic, electronic, or in-person consultations concerning probating estates or creating estate planning documents.

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Robert J. Green is an Elder Law, Trust, Estate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Kootenai Law at 208-765-6555, [email protected], or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.