Alexandria, VA Estate Planning Blog

Tuesday, October 13, 2009

The Consequences of Failing to Plan for Incapacity: Medical and Burial Directives

If you fail to dictate your medical and burial desires then you may be saddling your family with an awful burden. Failing to plan is tantamount to kicking the can down the road and passing the baton of responsibility to your family. Imagine the stress and emotional burden your loved ones would face if they were asked to determine whether you would have wanted life prolonging procedures? Do you want them to make the decision without your input? A potentially life or death decision that may implicate deeply rooted religious beliefs.

Virginia Code § 54.1-2983.3 provides that the absence of an advanced medical directive by an adult patient shall not give rise to any presumption for treatment. Consequently there is no presumption of life or death. The decision whether you live or die could be in the hands of a stranger, an estranged family member, or a group of family members. Many people are shocked to learn that Virginia Code § 54.1-2986 provides that an appointed guardian, not your spouse or child, has first priority to make the decision.

Failing to plan can be the catalyst for the breakdown of the family unit. It doesn’t matter if your family has a close loving relationship or a more tumultuous one. Every family is susceptible. You cannot guarantee that your family will stay together after you are gone. However you can reduce the risk that your family will stop speaking to one another because of a dispute about what treatment you would have wanted.

The costs of inaction can be astronomical. Informal disputes over your medical treatment can easily escalate into formal litigation. The result can be high court costs, attorneys’ fees, and expert witness fees. Additionally your beneficiaries’ inheritance can be exhausted on doctor and hospital bills that you never wanted to incur.

Your failure to act now can have devastating consequences later. But there is a simple and inexpensive solution. A properly drafted advanced medical directive, living will, or healthcare power of attorney can be the solution. Caution! These documents impact life and death decisions and they should be explained and drafted by a professional.

Careful planning can reduce unnecessary burdens and wasteful costs. It's very important that you consult an estate planning attorney during the drafting process. Contact us today and let a knowledgeable estate planning professional go to work for you.


Authored by Luke Anthony Lenzi, Esq.


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