It is incredibly important to have proper estate planning documents in place to protect yourself and your assets in the event of your incapacity, and so you can control what happens to your assets after you die.

But equally important is having the right documents in place for while you are still living. If you become incapacitated, who is going to make decisions on your behalf or manage your finances?

The following are two documents that can greatly impact your answers and should be discussed with your estate planning attorney, your financial adviser and/or your doctor.

General durable power of attorney

A durable general power of attorney names an individual to act for you in the event of your incapacity. This person is known as an “agent.” It is important to note that this type of power of attorney can be valid upon on signing or upon your incapacity. Additionally, the word “durable” implies that this document is valid until you either revoke it or pass away.

Finally, while this document often contains broad powers, so that your agent has the ability to act on your behalf in almost any situation, it is important to note that this document does not typically allow your agent to act with regards to any assets held in a trust (if you have one). Instead, a trustee would deal with all trust assets. In some cases, the agent and trustee are the same person, but they are not required to be.

Advance directive for health care
(durable power of attorney for health care
and living will)

An advance directive names someone to make health care decisions on your behalf if you are unable to do so yourself and to allow a person to die with dignity and not be kept alive by a machine under certain conditions.

While this document allows you to choose who makes these decisions and also dictate what type of care you want in specific situations, this document is not a DNR (Do Not Resuscitate order), which can only be completed by your doctor.

Additionally, it important to note that the New Hampshire Legislature most recently updated these documents in 2021. That does not invalidate a previously executed advance health care directive, but it is always recommended to have the most current version. As such, you may want to discuss updating these documents with your estate planning attorney or doctor’s office.

Stephanie J. Thomson is an attorney focusing on estate planning, probate, business representation and residential and commercial real estate transactions at Upton & Hatfield in Peterborough.