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Marlise Munoz, Advance Directives, and Questions of Death

One of the reasons we’ve recently discussed the Marlise Munoz case, and others like it, is because it touches on one of the most difficult estate planning questions around; talking about death. Everyone knows that our lives are limited, but the subject is such a taboo topic that we rarely speak about it even amongst our closest friends and loved ones.

The question of what happens to us after death, what we want to happen to our possessions and our remains, and what we might have to face when we reach our final moments are all very personal, emotional, and difficult issues. Yet not talking about them can often lead to unnecessary complications and difficulties for your family, and even yourself.

Death, Dying, and Estate Litigation

Though it’s relatively uncommon, serious legal fights can arise out of end-of-life situations. Though estate litigation is often necessary, it can be very damaging to family relationships, not to mention costly and time-consuming.

Yet when you fail to consider what you might want to happen to you or your possessions as you are dying or after you are dead, you can make it much more likely that estate litigation will occur. Whether your family cannot agree on the kinds of medical treatment you would want should you become incapacitated, or they have a disagreement about what you would have wanted to happen to your property after you die, taking those disagreements to court is a natural outcome of not talking about them while you are still able.

Getting the Conversation Started

If you are one of the people who have shied away from talking about death and dying, there are some steps you can take to help you and your family be better prepared.
First, you should consider scheduling an appointment with an estate planning attorney. Talking to a professional about these personal issues can often be much easier for many people than talking to those close to you. An estate planning attorney has a legal obligation to keep whatever you say in confidence, and not to reveal to others what you talk about in the confines of the attorney-client relationship.

Second, once you’ve spoken to an attorney and have a better understanding of what the legal realities surrounding death are, you can use that as a springboard to talk about the issue with friends and family. For example, part the legal process of creating an estate plan is nominating someone who will serve as your medical representative should you become incapacitated. Once you know you can create a medical directive that names a representative, you can then speak to your family about your medical wishes and about who you want to serve in that role.

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