krooks1026

By Bernard A. Krooks, Certified Elder Law Attorney
Special Contributor: Joel Krooks, Esq.

When preparing for surgery, most people focus on the procedure, recovery, transportation, and post-operative care. Estate planning documents, however, are often overlooked. Whether surgery is routine or serious, it is important to make sure the right people have the legal authority to act for you if you are temporarily unable to make decisions yourself.

Too often, people wait until the day before surgery—or even until they are already in the hospital—to address these issues. A little advance planning can make a significant difference.

Health Care Proxy: One of the most important documents to have before surgery is a Health Care Proxy. This document allows you to appoint someone you trust to make medical decisions for you if you are unable to do so.

Your agent may need to communicate with doctors, consent to treatment, address rehabilitation options, or make other important medical decisions. Choose someone who understands your wishes and can make difficult decisions under pressure. It is also wise to name an alternate agent in case your first choice is unavailable.

Simply telling a spouse, child, sibling, or friend what you would want is not the same as giving that person legal authority to act.

Living Will: A Living Will works together with a Health Care Proxy. While the Health Care Proxy identifies the person who will make medical decisions, a Living Will provides written guidance about your wishes concerning life-sustaining treatment if you cannot communicate.

These may include decisions involving artificial nutrition and hydration, mechanical ventilation, resuscitation, and other medical interventions. Although these can be difficult subjects to discuss, putting your wishes in writing can spare your family from having to guess what you would have wanted during a medical crisis.

Power of Attorney: Medical decisions are only part of the picture. If you are temporarily incapacitated after surgery, someone may also need to handle financial and legal matters.

A properly drafted Durable Power of Attorney can allow your agent to pay bills, communicate with banks and insurance companies, manage property, and handle other financial matters. Many people assume a spouse or adult child automatically has this authority, but that is not always the case.

Without a Power of Attorney, even routine financial matters can become difficult. In more serious situations, the lack of proper planning can result in the need for a costly guardianship proceeding.

Review Your Will, Trusts and Beneficiary Designations: Surgery is also a good reminder to review your Will and any trusts. Ask whether they still reflect your wishes and whether the people named as Executor or Trustee remain the right choices. Consider whether there have been marriages, divorces, births, deaths, or other significant family changes.

If you have a Revocable Trust, make sure it has been properly funded. Having a trust document is only part of the planning; assets generally need to be properly titled or coordinated with the trust.

You should also review beneficiary designations on retirement accounts, life insurance policies, annuities, and other accounts that pass directly to named beneficiaries. These designations can take precedence over instructions in your Will, so outdated information could unintentionally undermine your overall estate plan.

Don’t Wait Until the Last Minute: Perhaps the most important advice is simple: don’t wait until the day before surgery to begin estate planning.

Good planning takes time. Your attorney needs to understand your family, assets, goals, and concerns. Documents may need to be drafted or revised, and proper witnessing or notarization may be required.

Waiting until you are already hospitalized can create additional complications, particularly if anesthesia, strong pain medication, or a significant medical event affects your ability to make decisions. A hospital room is rarely the ideal place to make important estate planning decisions.

The better approach is to prepare while you are healthy and able to thoughtfully consider your options.

Plan Before You Need the Documents: Most surgeries go as planned, but preparing for the unexpected is an important part of protecting yourself and your family.

Before undergoing surgery, make sure your Health Care Proxy, Living Will, Power of Attorney, Will, trusts, and beneficiary designations are current. Make sure the people you have appointed understand their roles and know where important documents can be found.

The best time to prepare for an emergency is before there is one.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named the 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC) and is a past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at 914-684-2100 or at www.littmankrooks.com.