Family Values: Why You Should Care About Agency Planning


Sometimes people are a little surprised by the force of my passion for agency documents.

True, I hassle all of my friends, relations, and strangers at cocktail parties, to execute the health care proxies, powers of attorney, living wills, and other documents that form what I like to refer to as Quality of Life Planning. Before you assume that this is a function of my at-rest state being ‘tsittering like a tiny Jewish teakettle’ or, conversely, that I enjoy forcing people to contemplate their own mortality, please allow me to explain myself.

There are laws in New York (and elsewhere) that dictate who gets to be in charge of your body, in the event that you lose the ability to make those decisions yourself. There are similar laws that govern who gets to take off with your assets in the event that you die without a will. These laws set up a hierarchy, or a list of family members in order of who is deemed to be closest to you.  For example, a person’s spouse is at the top of the list; if they have no spouse, their children come next, then parents, and so on. Those laws work pretty well if you are part of a nuclear family that is possessed of things like good health insurance, well-developed communication skills, and many pieces of paper signed by representatives of the state, accurately describing your relationships as familial and loving. Those laws work pretty well if you don’t lose capacity or die until you are very old, and your children are over the age of 18, and are more or less self-sufficient.

But I remember the AIDS crisis. Even as a child, it was obvious to me that we were witnessing a spectacular breakdown of those laws. Because those laws depend for their utility upon a potentially irrelevant definition of family. A statute that give someone’s parents the authority to make health care decisions for them will fail tragically when there is a long-term partner who is more familiar with that individual’s wishes than a perhaps long-estranged mother. When your doctors will not speak to your loved ones, sometimes will not even let you speak to them — when the manner of your living and dying is being determined by the wrong kind of family — this is heartbreak on a deep and irredeemable scale.

Recently the law has asserted that all adult humans in two-partner relationships may marry, and that has expanded the number of people who may be protected by the law’s default hierarchy of family members who may control your body, your assets, and even your children. But not all people in all kinds of relationships have won the right to marry. And for all kinds of reasons, not all people want to marry. Not all people have family, in the legal sense. So if you do not want your health care decisions to be made by your parents, children, or the state, then control those decisions now, by executing a health care proxy appointing someone to make those decisions. Draft and execute a living will, instructing your health care agent about your wishes. And if you do not want a guardian appointed for you by a judge, then execute a power of attorney, outlining the authority your named agent may exercise in caring for you, should you eventually require care. And for goodness sake, execute a will, if for no other reason than to protect your minor children. Even if you have nothing to leave to your children, make sure you leave your children in good hands. This kind of planning is not just helpful in the event of illness or death — but any incapacity. So these documents can be vital for people who are or may become incarcerated or deported.

If you think this kind of planning is only meaningful after you die, think again. If you think this kind of planning is only for the rich, think again. And if you think there isn’t anyone who is going to care about you, or your stuff, or your kids: think again. If you think you can’t afford to do this, or that you will get to it eventually, call me and we can talk discounts and installment plans. Hell, call any qualified practitioner.

I am a big proponent of judicious risk-taking and healthy living, primarily because I harbor fond hopes that we can all have very long and very high quality lives. Anyone who knows me will be familiar with my twin mantras of “Get down from there,” and “Brains on the inside is a sexy look for all seasons.” But even I know that accidents happen, in spite of everyone’s best efforts to always wear a helmet, and a condom, and a sweater, and look both ways, and Get Down From There! Still, as a backup, you should have documents that instruct those who love you on how to proceed (or not) in the event of misfortune. These are documents you want to have, but never need. I sincerely encourage you never to be in a position in which you need them but do not have them. It is not only a gift to yourself, it is truly a gift to your family, whoever your family may be.

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