One of the more common phrases I hear in my practice is, ‘It’s what mom would have wanted.’  It might be said with respect to a decision about the use of end of life medical measures, about funeral arrangements, or about distributing tangible personal property.  I’m sure in many of those cases, the choice is what mom (or dad or Aunt Jane) would have wanted.  However, it is not unusual to have one family member insisting that what the deceased or incapacitated person ‘would have wanted’ is one thing, and to have another family member stating the opposite just as adamantly.

The best way to make sure that your intentions are carried out and to minimize friction among your family members is to clearly communicate those intentions.  Of course it is important to have basic estate planning documents in place including a Will, a Power of Attorney and a Health Care Proxy, but it is also important to make sure that your wishes are understood by the people you have named to carry them out.

For example, many Wills include a general statement directing distribution of tangible personal property ‘equally among my children’ or some similar phrase.  Tangible personal property consists of your ‘things’ – car, jewelry, artwork, photographs, etc.  While there are good reasons for not including a laundry list of these items in your Will, you can, and should, create a list separate from your Will on which you indicate to whom items of significant sentimental or monetary value should be given.   As I like to say, it’s easy to divide a bank account three ways, it’s hard to divide mom’s diamond ring.

Similarly, while your Health Care Proxy designates the person who will make health care decisions for you if you are not able to do so, the Proxy does not tell your Health Care Agent how you feel about use of life-extending treatments or extraordinary medical measures.  Those types of decisions are often very emotional ones for family members and otherwise reasonable minds can differ when it comes to end of life medical care.  To minimize the possibility that your family will find themselves at odds regarding these types of decisions, write down your wishes.

A Living Will  is a document that can be used to express a person’s wish that life-extending measures not be used in certain circumstances. Five Wishes  is a comprehensive document created by Aging with Dignity, a national non-profit organization whose mission is to affirm and safeguard the human dignity of individuals as they age, which many people use to provide detailed instructions regarding end of life care.

The distribution of your personal items at your death, the manner in which you want to be cared for, and whether you want to be buried or cremated (or both!) are all intensely personal decisions and they are decisions about which family members often feel passionately.  Do yourself and your loved ones a favor and write down your wishes about these matters so that when your children say, ‘It’s what mom would have wanted’ it is really is what you would have wanted.

Published May 2014