Estate planning is not just about planning for death. Medical advances mean many people now survive illnesses and events that once would have been fatal, but often with cognitive or physical limitations. As a result, estate planning must also prepare clients for incapacity and end-of-life decisions. Although advance financial and medical directives are essential components of a comprehensive estate plan, they often receive far less attention than dispositive documents. This article highlights why these directives matter, key issues to discuss with clients, and common pitfalls to avoid. General Powers of Attorney As I have written previously, I frequently recommend revocable inter vivos trusts that are funded during the client’s lifetime. In my experience, financial institutions are far more willing to work with a successor trustee than with an attorney-in-fact acting under a durable power of attorney (POA). Even with a funded trust, however, a POA remains indispensable. Certain assets, most notably qualified retirement plans, cannot be transferred to a trust during the participant’s lifetime. In addition, many clients prefer to keep day-to-day checking and savings accounts titled in their own names to avoid the inconvenience of opening new accounts, changing account numbers, and updating automatic payments and direct deposits. For these assets, a POA can serve as a “less restrictive alternative” to a guardianship if the client becomes incapacitated.1 One of the most important drafting decisions involves the statutory “hot powers,” powers that must be expressly granted because they permit an agent to significantly alter the principal’s estate plan, including making gifts, changing beneficiary designations, creating or amending trusts, and exercising other similarly significant authority.2 Whether to include these powers depends entirely on the client’s circumstances. For example, granting broad authority presents little risk when a married couple in a first marriage names each other as attorney-in-fact, their only child as alternate, and all dispositive documents benefit the surviving spouse and child. The same authority may be inappropriate in a blended family or where multiple children have competing interests. In those situations, the powers can often be tailored. For example, permitting beneficiary changes only to name the principal’s trust as beneficiary or granting the hot powers to a spouse but placing limitations on successor agents. Elder law attorneys also rely on many of these powers for Medicaid planning after incapacity. The key is to evaluate the risks and benefits for each client rather than treating the hot powers as an all-or-nothing proposition. A POA can also nominate a guardian for the principal and request that bond be waived.3 For clients with minor or disabled children, it may also nominate a guardian for those children if the client becomes incapacitated.4 Many clients assume guardian nominations belong exclusively in a will, but a will has no effect until death. Including a nomination in the POA provides protection during the client’s lifetime as well. Another important consideration is whether the POA should be effective immediately or “spring” into effect only upon incapacity or another specified event.5 Although springing POAs appeal to clients who value financial privacy, they often create practical problems. Financial institutions already scrutinize POAs, and requiring proof of incapacity, such as physician certifications, can delay or even prevent an agent from acting when prompt action is needed. Further, physicians may be unwilling to provide the necessary certification, and additional evaluations may become necessary. That said, springing POAs remain appropriate for some clients, particularly those who are unmarried, have no children, or are especially concerned about access to their financial information. Clients should understand both the privacy benefits and the practical drawbacks, and the triggering event should be drafted with precision to avoid unnecessary disputes or delays. Ohio’s statutory POA form6 complies with the Uniform Power of Attorney Act, but, in my view, it does not adequately address many of these client-specific issues. A customized document generally better serves the client’s needs. Finally, although a durable POA remains valid until revoked or terminated by law,7 many financial institutions are reluctant to honor older documents.8 In this region, banks commonly reject POAs that are more than five years old. As a practical matter, clients should periodically execute a new POA, even if nothing has changed, to reduce the likelihood that their family will face an unnecessary guardianship proceeding after incapacity. Health Care Powers of Attorney and Living Will Declarations Unlike General Powers of Attorney, I generally use the standard Health Care Power of Attorney (HCPOA) and Living Will Declaration (LWD) forms promulgated by an interagency initiative9 and available through the OSBA and other bar associations and court websites because these documents are often used in emergency situations and health care providers are familiar with the standard forms and, therefore, more comfortable relying on them. Using the standard form, however, does not eliminate the need to explain each document, when it becomes effective, and the significance of its various options. Clients should first understand the distinction between an HCPOA and an LWD. An HCPOA appoints an agent to make health care decisions when the principal cannot communicate or give informed consent. An LWD, by contrast, allows the declarant to direct end-of-life care in advance and becomes effective only in limited circumstances: a terminal condition where death is deemed imminent10 or when the declarant is in a permanently unconscious state11. Unlike an HCPOA, which authorizes an agent to decide whether to withdraw or refuse life-sustaining treatment, an LWD is the declarant’s own legally enforceable instruction regarding end-of-life care. Clients and their agents also frequently misunderstand Do Not Resuscitate Orders (DNRs). A DNR is a physician’s medical order, not an advance directive. Unless restricted by the document, an HCPOA authorizes an agent to sign a DNR on the principal’s behalf, and a physician may issue a DNR when an LWD has been triggered. Another important discussion involves the “Special Instructions” regarding artificial nutrition and hydration. These provisions apply only when the patient is in a permanently unconscious state, not merely terminally ill. Clients often have deeply held personal or religious beliefs on this issue.12 Some prefer to leave the decision to their health care agent, while others want to make the decision themselves through an LWD to spare loved ones the burden of making it. Whatever approach the client chooses, the documents should accurately reflect that intent. Care should also be taken in the selection of health care agents. It is not uncommon for clients to initially identify the same individual(s) to serve as fiduciary in all of their estate planning documents. I recommend probing further to ensure that the individuals named in the financial roles are also appropriate as the health care agent(s). Like financial POAs, HCPOAs may nominate a guardian and request that bond be waived if a guardianship becomes necessary. When the agents named in the POA and the HCPOA are different or in a different order, care should be taken to ensure the documents work together rather than create conflicting authority in regard to guardian nominations. One Final Planning Tool Although this article focuses on planning for situations arising during life, I want to mention one additional planning tool: Ohio’s Appointment of Representative for Disposition of Bodily Remains, Funeral Arrangements and Burial or Cremation Goods and Services13 (Disposition of Remains). In practice, a Disposition of Remains functions much like a power of attorney that survives death. I do not recommend it for every client, but it is particularly valuable for blended families, unmarried clients without adult children, and clients with strong preferences regarding cremation, burial, or religious observances. The statutory form14 generally works well for these purposes. Many clients assume their will is the appropriate place to provide funeral instructions. In reality, final arrangements are usually made long before anyone reviews the will or an executor is appointed. When clients have specific wishes or want to avoid potential conflict, a Disposition of Remains is an effective tool.15 If one is prepared, it should clearly identify both the client’s wishes and the anticipated source of payment for those arrangements, like insurance policies or trust or probate assets. Conclusion Advance directives are not merely ancillary documents that accompany the “real” estate plan. They are often the documents that have the greatest practical impact during a client’s lifetime. By giving financial and health care directives the same thoughtful attention as wills and trusts, attorneys can better protect clients during periods of incapacity, reduce the likelihood of guardianship proceedings, and help ensure that clients, not courts or family members acting without guidance, make the most important decisions about their lives. Christina Clowers Flanagan is a partner at Wood + Lamping LLP and is currently serving as co-Chair of the CBA Estate Planning & Probate Practice Group and on the Board of Trustees of the Cincinnati Estate Planning Council. She is an OSBA Certified Specialist in Estate Planning, Trust & Probate Law; has received the Accredited Estate Planner® Designation from the National Association of Estate Planners & Councils and is licensed to practice in Ohio and Kentucky.