INFORMATIONAL RESOURCES IN PINE CITY, MN

Health Care Directives & Living Wills

When I am sick, in a hospital, or unable to care for myself, how can I let others know my wishes? You can answer these questions in a written document called a Health Care Directive (also called a Living Will).

Minnesota Law:

In 1998, Minnesota law authorized the use of health care directives, which allows you to appoint a health care agent to make health care decisions when you become unable or unwilling to make or communicate such decisions, and to give instructions as to what choices you prefer. The health care directives law combined and replaced what was previously called a Living Will and a Durable Power of Attorney for Health Care. A health care directive can outline and describe your preferences about issues such as surgery, nursing home or specialized care, medication, religious concerns, funeral planning, organ donation and the types of life‐sustaining procedures you may want or not want for yourself.

What is a Health Care Directive?

A health care directive is a written document that informs others of your wishes about your health care. It allows you to name a person ("agent") to decide for you if you are unable to decide. You must be at least 18 years old to make a health care directive.

Why have a HCD?

A health care directive is important if your attending physician determines you can't communicate your health care choices (because of physical or mental incapacity). It is also important if you wish to have someone else make your health care decisions for you. In some circumstances, your directive may state that you want someone other than an attending physician to decide when you cannot make your own decisions.

Must I have a HCD? What happens if I don’t have one?

You don't have to have a health care directive. But, writing one helps to make sure your wishes are followed. You will still receive medical treatment if you don't have a written directive. Health care providers will listen to what people close to you say about your treatment preferences, but the best way to be sure your wishes are followed is to have a health care directive.

How do I make a HCD?

There are forms for health care directives. You don't have to use a form, but your health care directive must meet the following requirements to be legal:

What can I put in a HCD?

You have many choices of what to put in your health care directive. For example, you may include:

• The person you trust as your agent to make health care decisions for you. You can name alternative agents in case the first agent is unavailable, or joint agents.
• Your goals, values and preferences about health care.
• The types of medical treatment you would want (or not want).
• How you want your agent or agents to decide.
• Where you want to receive care.
• Instructions about artificial nutrition and hydration.
• Mental health treatments that use electroshock therapy or neuroleptic medications.
• Instructions if you are pregnant.
• Donation of organs, tissues and eyes.
• Funeral arrangements.
• Who you would like as your guardian or conservator if there is a court action.



You may be as specific or as general as you wish. You can choose which issues or treatments to deal with in your health care directive.

Are there any limits to what I can put into my HCD?

There are some limits about what you can put in your health care directive. For instance:

• Your agent must be at least 18 years of age.
• Your agent cannot be your health care provider, unless the health care provider is a family member or you give reasons for the naming of the agent in your directive.
• You cannot request health care treatment that is outside of reasonable medical practice.

What should I do with my HCD after I have signed it?

You may wish to inform family members, your health care agent or agents, and your health care providers that you have a health care directive. You should give them an original. It's a good idea to review and update your directive as your needs change. Keep it in a safe place where it is easily found.

Losing a loved one can be a very emotional and challenging experience. On top of that, having to deal with the property and assets of the deceased can add a whole new level of stress and frustration. This guide is intended to provide some guidance on what to do after your loved one passes away. It is not intended to be completely exhaustive for every situation, but merely provide suggestions on what to consider. As always, contacting an attorney can ease a lot of the stress and worry.

To do list:

• Notify the Social Security Administration of the death. If you are a spouse, or if you are a minor child of the deceased, you may be eligible for death benefits. Also, notify the County if deceased is receiving any public benefits.
• If the deceased was a member of the military or a veteran, notify the Department of Defense, VA and/or the proper Minnesota or Federal government agency of the death and check for possible death benefits.
• Have all mail forwarded through the Post Office.
• Notify all insurance companies, and/or pension and retirement companies.
• Order several copies of the Death Certificate. You will need them to transfer bank and other financial accounts, and to send to insurers and others who may be holding assets or benefits payable to the estate. It’s a good idea to order 5‐10 of these. Often, these are obtained through the funeral home.
• Notify banks and other institutions where the deceased had loans, checking and/or savings accounts.
• Removed the deceased’s name from all car titles and other vehicle titles by contacting the proper motor vehicle registration office.
• Notify the employer and all former employers of the deceased; check out possible pension benefits.
• Gather all documents regarding outstanding debts and liabilities of the deceased.
• Gather all documentation for all real and personal property owned by the deceased (either individually or as joint owners).
• If necessary, file health care claims to pay expenses of the last illness.
• Gather names and address of all the possible heirs (children, parents, nieces/nephews, grandchildren, etc.).
• If a credit card of the deceased was in the name of both of you, you are liable for the bills. Remove the deceased’s name from the account; close the account if you don’t want to continue using it. If the account was just in the deceased’s name, close it and you might not be liable for those bills. In Minnesota, a spouse is responsible only for the “family necessary” bills, including medical bills, on the account of the deceased spouse.
• If the deceased owned $50,000.00 or more worth of property in his or her name alone, you must check with a probate attorney. If the deceased left a will, the personal representative named in the will can do this.
• If you own property in joint tenancy, a life estate, or a Transfer on Death Deed, file an Affidavit of Identity and Survivorship (along with a certified copy of the death certificate) to remove the deceased’s name from the property.

A "power of attorney" is a legal document that delegates legal authority to another person. The person who delegates legal authority to another person is called the "principal." The person to whom legal authority is delegated is called the "attorney‐in‐fact" or the "agent." The use of the term "attorney‐in‐fact" does not refer to a lawyer. Instead, it refers to any person who is authorized to act for, or on behalf of, another person. Conversely, a lawyer is often referred to as an "attorney‐at‐law."

A principal can give an agent very broad or very limited powers. In either case, the powers conferred upon an agent are always spelled out in the power of attorney document.

A principal can grant an agent the authority to do virtually anything the principal could do on his or her own. A POA that grants broad powers to an agent is often referred to as a "general power of attorney." A POA that grants only limited or specific powers is referred to as a "special power of attorney."

Generally speaking, a principal can give an agent the authority to do any act that the principal could do on his or her own, unless prohibited by public policy or a contractual obligation. Although the laws governing a power of attorney are still evolving and each state is free to determine its own rules, the following acts are generally not permitted by an agent on behalf of a principal:

• Marriage or Divorce. Matters pertaining to marriage and divorce cannot be delegated to an agent.
• Voting. An agent cannot vote on behalf of a principal.
• Testament. No state (with the possible exception of the State of Washington) currently allows an agent to create, amend or revoke a Last Will and Testament on behalf of a principal.
• Amending or revoking revocable living trusts. If a revocable living trust provides for the disposition of assets upon the death of the grantor, then the common law provides that an agent cannot act on behalf of the grantor to amend or revoke the trust.
• Representing a principal in court. An agent may not represent a principal in court. The exception, of course, is if the agent is also an attorney at law.
• Bankruptcy. The bankruptcy courts are divided on this issue. One bankruptcy court (the United States Bankruptcy Court for the Eastern District of Virginia) has denied a bankruptcy petition filed by an agent on behalf of a principal. Other bankruptcy courts have permitted such filings.
• Retirement benefits. Neither the Department of Veterans Affairs, the Social Security Administration, nor the United States Office of Personnel Management recognizes an agent under a POA.

To be legal, only one copy of a power of attorney has to be signed. The better question, though, is whether more than one copy should be signed. There is no right answer to that question. It depends upon whether the POA is going to be used for a single purpose (such as a real estate closing) or for many purposes (such as managing your personal finances in the event you become incapacitated). In the former case, the agent will probably only need one copy to give to the buyer at the closing. In the latter case, the agent may need two or more originals. Financial institutions, for example, often request either an original or a certified copy. An agent should always resist giving away an original because an original always has to be shown when the agent is acting on behalf of a principal. If all the originals are given away, the agent may not be able to transact further business on behalf of the principal.

Unless the POA is to be used immediately, the original should always be retained by the principal in a safe place. The agent should be advised that he or she has been named as agent and should also be advised as to the location of the original and the number of originals that have been signed. If the principal stores the originals of the POA in a safe‐deposit box, the principal should authorize the bank to allow the agent access to it and should also give the agent a key. If the principal stores the originals of the power of attorney at home, then the originals should be kept in a fire and water proof safe. The agent should also have access to the home, either with a key or through contact with a neighbor or relative.

Yes. You can appoint multiple agents if you wish. If you appoint two or more agents, you must decide whether each agent can act separately in managing your affairs or whether they both must act together. Requiring both agents to act together can help protect against abuse, but it also makes it more difficult for the agents to get things done. This is especially true if one agent is local and the other is out of state. One solution is to allow either agent to write checks for the payment of regular recurring bills, but to require both agents to sign for other actions, such as changing investments, signing accounting and tax forms, etc.

Yes. The agent named in a POA is only the representative of the principal. As long as the principal is capable of making his or her own decisions, then the principal is free to carry on as though the POA didn’t exist.

A power of attorney that survives the incompetency of the principal is referred to as a "durable power of attorney" or "DPOA." For the most part, a DPOA is intended to be used in the event the principal is unable to make decisions on his or her own. It is generally thought to be a much better solution than having the courts appoint a guardian or conservator to act for the principal. Many professionals also prefer to use a DPOA even if the power is to be used immediately for a specific purpose, such as for a real estate transfer. In that case, if the principal should become incompetent prior to the occurrence of the specific purpose, then the agent could still complete the transaction

A POA becomes effective as soon as it is signed by the principal. A "springing power of attorney" does not become effective as soon as it is signed by the principal. Instead, it becomes effective upon the happening of a specific future event, such as the incompetency of the principal. Many institutions have difficulty accepting a springing POA because it is often difficult to determine if the specific future event has actually occurred. Incompetency, for example, often occurs over a long period of time and it is difficult to determine when someone crossess the line. For this reason, most professionals will provide in a springing POA that a physician must certify that the principal is incompetent in order for the POA to "spring" into effect. A POA that is neither a "durable" nor a "springing" power of attorney is simply referred to as a power of attorney. However, some people do refer to it as a "non‐durable power of attorney."

Probate is a legal process involving the Court system that finalizes a person’s affairs after their death.

It usually includes the following:

• Proving to the Court that the Will is valid and effective Identifying and making an inventory of the deceased person’s property
• Appraising the value of the assets
• Paying the debts or taxes owed by the deceased person 
• Distributing the person’s property according to the Will or the laws of intestate succession

The person who will handle the probate is called the “Personal Representative” (or also sometimes known as the “Executor”). This person is named in the deceased person’s Will or appointed by the Court depending on the circumstances

No. In order to have any authority to act on your behalf, the Personal Representative must first be appointed via a judge or court administrator. Until this happens, that person has no powers at all.

No. A Power of Attorney and Will are two completely separate documents. A POA has absolutely no power after you pass away

Because a PR must first be appointed by the Court, there will be a lag time between your passing and that appointment. It is usually advisable to set up an account at a local bank with about $10k ‐ $15k in it, and name your PR as the payable on death beneficiary. This way, that person will have some funds immediately available to pay burial and funeral costs, hospital bills, and pay for a retainer to hire an attorney to conduct a probate.

No. You do not need to hire an attorney to handle the probate estate. Some estates are fairly uncomplicated and can be handled by the well‐read and ambitious Personal Representative. However, an attorney can make your life a lot easier as they can advise you on the best way to handle the estate, can work with the court directly, and ensure that the assets are properly distributed. A Personal Representative can become personally liable if they fail to pay a debt or improperly distribute the assets. At the very least, you should consult an attorney before you start anything for advice on the proper probate process to start, or if one is even needed.

As a Personal Representative, you are entitled by statute to hire professionals to help you administer the estate (i.e an attorney, accountant, etc). The fees for these professionals can be taken out of the deceased person’s estate as long as they are reasonable. Most ethical attorneys will charge a fee for the time incurred on the file. Be careful of those that charge a flat percentage of the estate.

No. It is quite common that a person can pass away and their entire estate can be transferred without a probate proceeding. Many assets are transferred automatically upon passing and do not need a court to transfer them. Some of these assets include: real estate owned in joint tenancies and life estates, payable on death bank accounts, named beneficiaries on life insurance and retirement/investment accounts, etc. Also, small estates (under $50,000 in value) may be able to be transferred by an Affidavit instead of probate. You should consult with an attorney to determine if a probate is necessary.

There are two ways a probate may proceed:

• Formally
• Involves a judge and court hearings
• Can be supervised or unsupervised
• Informally
• Involves the probate administrator rather than a judge
• Usually fewer costs involved
• Can only be used with the most basic of estates