Estate Planning & Advance Directives
Estate planning should be completed while you are alive. Estate planning is when you prepare documents to tell others how to take care of yourself and your assets. Some documents go into effect after you die; others go into effect if you are alive and not able to communicate your wishes (i.e. if you have dementia or are in a coma). These documents can also be used if you need temporary assistance to manage your financial or medical matters, for example, having someone else pay your bills while you are in rehabilitation.
How Do I Get This?
An estate plan is usually made with an attorney but you can also fill out many of these forms on your own -- see “Legal Assistance” resource guide for more information. An estate plan should be reviewed annually to be sure they still reflect your wishes. You can revoke or update these documents at any time before you become incapacitated. Estate plans may include:
Advance Medical Directives
Financial Power of Attorney
Wills and Trusts
The term “Advance Medical Directives” refers to the documents that allow you to plan ahead in writing to make sure your consent or refusal for medical treatment is respected in situations where you cannot communicate yourself.
By signing an advance medical directive, you are not giving away your right to make medical decisions when you are able to communicate them. It simply makes your beliefs and wishes known in the event that you are not able to communicate for yourself.
Advance medical directives include:
A Medical Durable Power of Attorney (MDPOA) is a document where you designate who can make medical decisions for you if you become unable to do so yourself. By selecting this person and preparing this document, you make your wishes known to the medical community and your loved ones. Additionally, veterans who are registered with the VA medical center must have a separate MDPOA called a VAPOA generated by the Veterans Administration -- ask your VA healthcare provider for more information.
A Living Will is a document that tells healthcare providers and appointed representatives what life-sustaining treatments you do or do not want in the event that you have a terminal condition and cannot make your own decisions, or if you are in a persistent vegetative state. Your healthcare providers must follow your instructions. This form requires the signatures of two witnesses.
A CPR Directive is a form that allows you to choose if you want cardiopulmonary resuscitation (CPR) in an emergency. It tells healthcare providers not to resuscitate you if you stop breathing or your heart stops beating. A CPR Directive is signed by your healthcare provider after you’ve had a discussion about whether or not you want CPR performed.
You may also hear about a do-not-resuscitate (DNR) order. This form is filled out for your medical chart if you are receiving care in a healthcare facility and do not want to be resuscitated if your heart or breathing stops. It is also filled out if you go on hospice services. A DNR expires when you are discharged from the facility or from hospice so if you return to the facility or start hospice services again, a new DNR order will need to be completed. Signing a CPR Directive or a DNR order does not mean you will not receive treatment for other things like infections or broken bones.
The Medical Orders for Scope of Treatment (MOST) form is a bright green, two-sided document that becomes a set of medical orders when signed by your healthcare provider. Where a Living Will is a legal document, the signed MOST form is a medical order. The MOST form overrides a Living Will but the MOST form should reflect the wishes of your current Living Will.
Financial Power of Attorney is a form giving someone else the authority to manage your finances, property, and other business actions (for example, pay bills). It is called a Durable Power of Attorney if it only goes into effect when you are incapacitated. Your power of attorney must follow your preferences listed in this document and cannot override them. You can have a Limited Power of Attorney which allows someone to do specific tasks for you such as cashing checks.
Upon death, advance directives and power of attorney forms become null and void. Wills and trusts give direction on how to manage remaining assets of the deceased person.
Things to consider + Forms
Many individuals complete their medical advance care planning documents with their attorney, however an attorney is not required for most medical advance care planning documents. The forms you need are available through many healthcare offices and online at Colorado Care Planning — https://coloradocareplanning.org/ — a website dedicated to comprehensive tools for completing your directives. If you live in Colorado, use a Colorado form because requirements vary by state (see link to forms for other states below). It is encouraged to have your advance medical directives notarized, especially if you will be traveling out of state.
Here are some of your options:
Colorado Hospital Association - Your Right to Make Healthcare Decisions:
Forms include: Medical Durable Power of Attorney, Living Will, and CPR Directive; also includes succinct explanations each form; this booklet is frequently used by medical professionals and the forms have been approved by the Colorado Bar Association.
Easy-to-Read Colorado Advance Health Care Directive: https://coloradocareplanning.org/wp-content/uploads/2018/04/CO-PREPARE-Advance-Directive-English.pdf
Forms available in Spanish and for other states: https://prepareforyourcare.org/advance-directive
This form is a medical order (once signed by your doctor) which makes decisions about life-sustaining care and treatment. Generally, it is completed if you have a serious illness or are extremely frail — it must be signed by your doctor.
Spanish: http://coloradoadvancedirectives.com/wp-content/uploads/2014/07/Spanish-MOST-Form-Front-Page-Apr-15.pdf Note: The MOST is intended to be communication tool between you and the medical community. Because English is the primary language for healthcare in Colorado, the Spanish version is not an acceptable medical order. It can be used to help discuss options and ensure understanding but you must sign the English-language form in order for it to be official.
Quick tip: Do not keep these documents in your safe deposit box. Keep your original with other important documents that are easily accessible, give each appointed representative a copy, and give copies to your healthcare providers.
What happens if I don’t complete my estate planning forms?
Others will make these decisions for you and may have to pursue legal action in a case where you can’t communicate for yourself. If you do not designate a representative to act on your behalf and you become incapacitated, the courts can order someone else to manage your care or your resources:
Medical (or Healthcare) Proxy: In Colorado, if you do not choose someone to be your healthcare agent on your MDPOA form, healthcare providers may choose an alternate decision-maker called a “medical proxy” to make healthcare decisions for you if you can’t. Medical professionals will make an effort to contact all the people whom they believe have an interest in your care and then try to reach consensus about who will serve as the proxy decision-maker. They must make an effort to inform you of the decision. You have the right to contest a proxy chosen for you. For more information: cobar.org/For-the-Public/Advance-Medical-Directives
Conservatorships are when someone else manages your estate and finances. Conservatorships are appointed by a judge in the courts when they determine you are unable to make financial decisions for yourself.
Guardianships are court-appointments made by a judge designating someone to oversee your personal affairs including where you live or what healthcare providers you see. Guardianships are put in place when a court determines you are unable to make decisions for yourself. A representative cannot be both a guardian and a conservator.
Elder Probate/Mediation is a less formal and usually less expensive way than going through court to settle conflicts related to wills, trusts, conservatorships/guardianships, end-of-life decisions, family disputes, and more. Mediation is available at any time. It is helpful in maintaining relationships and when the interested parties are open to negotiation.
Where can I get more assistance or talk to someone?
Colorado Legal Services: (303) 837-1313 (limited legal assistance available to people over the age of 60)
Disability Law Colorado: 1-800-288-1376 or visit disabilitylawco.org (limited legal assistance for people with disabilities)
Aging & Disability Resources for the Denver Metro Area: (303) 480-6700
Aging & Disability Resources for Colorado: 1-844-265-2372
Western Care Partners is certified in Advance Care Planning and can assist individuals and families with completing advance directives — contact us to find out more about these services: (720) 675-9902.
Find an Elder Law Attorney: www.naela.org/Public/Find_a_Lawyer/Find_Lawyer.aspx
How to Choose a Lawyer: www.cobar.org/For-the-Public/How-to-Choose-and-Use-a-Lawyer
File a complaint about a lawyer: Call the Office of Attorney Regulation at 1-877-888-1370.
Quick Tip: Many attorneys will provide a free initial consultation regarding a variety of interests and concerns. Ask about this before scheduling your first appointment.
Self-Help or Low-Cost Services
See a list of low-cost legal services on the Colorado Bar Association’s website or consider attending a Senior Law Day or a Legal Clinic if you want more specific legal information: www.cobar.org/For-the-Public.
Colorado Senior Law Handbook: www.cobar.org/seniorlawhandbook
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This guide is brought to you by the Denver Coordinated Workgroup. The Denver Coordinated Workgroup is made up of experts from the field of aging who are committed to creating and sharing information in order to guide people to the services they need to thrive as they grow older. Western Care Partners is proud to serve with this group of talented professionals.