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Ask an Attorney: Living Will and DNR

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I Created a will and signed a will on what was a legal form for the state of North Dakota, and signed it before witnesses.  I am estranged from my mother, who is divorced from my father.  However, I have learned through relatives that she is against all my wishes for my living will, DNR, and wishes for final services.  Do I need a lawyer to do something to prevent her from taking charge and doing things I wouldn't want?

· Sad situation

· Misunderstanding, fairly common, about what a Will can and cannot do

· So although you and I have discussed similar issues before, wanted to do this segment to clarify again


So what are the things she wants that her Will can't do for her?

· I actually did e-mail this lady to get more facts and see what I could do to help

· Finances are a factor for her

· That's a very common concern, but especially for this lady, who lives on a disability payment

· In her question, she expressed living will, DNR, and desires for final services

· Will can't really help with those


Why not?

· What a Will does is to state how you want your property distributed

· And who you want handling that distribution

· It's a document that essentially begins operating with your death, and often, just in those two limited ways

· One additional concern here


What's that concern?

· In our later e-mail exchange, she made clear even further that she and her mother are so estranged that she wouldn't want her inheriting anything


So why is that a concern?  She said she had made a Will, correct?

· In our further e-mails, she confirmed that it was a form off the internet

· The form may actually do what she wants

· And it may be correctly witnessed

· But she's not law-trained

· A mistake by her in filling this form out could mean that her property isn't distributed the way she wants

· I recently saw a Will that left out the distribution paragraph entirely

· Makes the Will meaningless, really

· Or she might fill it out incorrectly, even if it's otherwise a good form


And if that distribution paragraph doesn't operate to do what she wants with her property, what happens?

· It passes by intestacy laws, as if she had no Will at all

· Her mother and father, from the exchange we had, would equally divide her estate in that situation

· That's not what she wants

· I haven't seen the Will; she said she would bring a copy in, but hasn't done so

· If she wants her mom left out, it's best to put in a specific paragraph disinheriting the mom, and giving at least a short statement of why she's left out

· But that still leaves this lady's major question


And what was that again?

· She has really specific wishes about no funeral, having a DNR, and a living will

· ND hasn't used living wills, as such, for some years now

· And she confirmed to me that she doesn't actually have one from back when they were being done


Okay, first, what does she mean by DNR?

· Again, from our later e-mail exchange, she simply means "do not resuscitate" if there's a medical event which resulted in brain death

· This is what the old living will form primarily discussed

· And it's a big item in what I tend to discuss with my clients current when we do health care directives

· We've talked about those in past segments

· HCDs can do much more than DNR directives


And if she had one of those, would that help with what she says she wants? 

· Yes

· She can express all of those wishes in a Health Care Directive, and name an agent and alternate agent to carry out her wishes

· In this case, from the e-mails we sent back and forth, she wants to name her father as her first choice, and has another individual as her chosen alternate, to do those things


And why is this better than putting things in the Will?

· As I said up front, the Will really is intended just to direct the distribution of your property and who you want doing that distribution

· Not intended for problems that might arise as a result of incapacity during lifetime

· Certainly not intended to keep an estranged parent from having a say in your end of life medical care, if you're not well enough to sign your own consent

· That's what health care directives are for

· Also, from our e-mails it sounded as though she really doesn't have a "probate estate" as such

· If a Will isn't probated through the court, your wishes in that will would be carried out only if the person you named does it informally

· Also, Wills often aren't even opened until some time after your death, so wishes about burial versus cremation, for example, might not even be seen until way too late


How about just a power of attorney?  You've talked about those in the past.

· You can absolutely create a general POA

· And I recommended that she should – everybody should, really

· But for the specific things she talked about – cremation, DNR, for those sorts of things, the HCD is the document that would usually be used

· You can say exactly what you want done about those things, because the form was set up by the Legislature to invite you to state specifics on those points

· Again, intended for the situation where (1) you're not well enough to consent to your own care, and (2) for some immediate post-death wishes


Like what?

· Burial versus cremation

· No funeral

· Possible organ donation

· So this is why estate planning lawyers usually do an estate planning "package" that typically includes Wills, POAs, and HCDs

· Might be other documents too

· But those three ensure that you've done what you can to carry out your pre-death wishes and distributes your estate after you're gone
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