Life with MS

The "Must Have" Legal Documents For You and Your Loved Ones

By Valerie L. Peterson, Esq.
Q: What is a durable power of attorney?
A: A durable power of attorney is a legal document that enables you to designate a person to make financial decisions on your belhalf. The document becomes effective immediately after you have signed it, and authorizes the person you name to begin acting on your behalf immediately. Another type of document, called a springing power of attorney, contains the same provisions as a durable power of attorney, but it only becomes effective when your doctor signs an affidavit stating that you are no longer able to manage your affairs.
Q: What is a healthcare surrogate?
A: A healthcare surrogate is a legal document that enables you to designate a person(s) to make healthcare decisions on your behalf when you are incapacitated and cannot make the decisions yourself. This document also authorizes those person(s) to access your private medical information that would otherwise be kept confidential as required by federal HIPAA rules.
Q: What is a living will?
A: A living will is a legal document that states that you do not wish to be kept alive by artificial means, such as intubation (the placement of a breathing tube into the airway) and artificial nutrition and hydration (a feeding tube). This document would become effective if certain medical events occur, such as you entering a permanent vegetative state or suffering from a terminal illness with no chance of recovery. Most living wills specify that you should be given medication, such as pain medication, to keep you comfortable.
Q: What if I do not want a living will?
A: No matter what your wishes are regarding your end-of-life medical treatment, it is critical that you put all your wishes in writing. For those persons who do not want a living will, there is an alternative called a will to live. A will to live enables you to specify that you do wish to be kept alive by artificial means. In addition, you can state any specific circumstances in which you do not wish to be kept alive by artificial means.
Q: What if I do not have a durable power of attorney or a healthcare surrogate?
A: A durable power of attorney and a healthcare surrogate provides someone else the authority to act on your behalf, especially if you become incapacitated and are not able to communicate your wishes. If you become incapacitated and you have not given anyone the authority to act on your behalf, then your family (or the State), may have to go to court and ask for a guardian to be appointed so that someone has legal authority to make decisions for you. A guardian can be a family member, if there is one available and willing to assume the responsibility. Alternatively, the court could appoint a professional guardian. Either way, guardianships can be very expensive to set up and manage. Most importantly, you would no longer have a say in who is appointed to care for your health and finances.
For additional information, contact AARP for advice, support, and resources. Call 888-OUR-AARP (687-2277) or visit
Valerie L. Peterson is the owner of Peterson Law Office, P.A., a Florida-based Elder Law firm that provides guidance and counseling in the areas of estate planning, Medicaid Planning and qualification, Elder Law, and Life Care Planning. She is dedicated to serving the needs of the elderly and their families nationwide.
(Last reviewed 7/2009)