A not-uncommon anxiety from many who are creating their estate documents for the first time is the concern that your wishes will be ignored or misunderstood. There’s often a desire to lay out everything you can possibly think of and to account for every scenario.
More often than not, you do not need to try to account for every possibility. Your estate planning documents will account for the most likely scenarios and then empower the people you trust most to follow your wishes to do exactly that in the scenarios no one could think of. This is why it is so important to choose people you trust as your representatives and agents.
But what happens if your agent does ignore your wishes? Is that even a possibility? Let’s explore this a little further.
For medical wishes, it is illegal for doctors and medical facilities to ignore your stated wishes in an advance directive or similar legal document. If you have created a living will or powers of attorney and stated your wishes in either document (or both), those documents are binding. A living will can be made with non-binding guidance, but the principle still applies that however you have set down your wishes, that document legally must be followed.
It is important to note that while your advance directives are binding, “doctors can always refuse to comply with your wishes if they have an objection of conscience or consider your wishes medically inappropriate,” according to Charles Sabatino, Director of the ABA Commission on Law and Aging in Washington, DC. However, this doesn’t mean they can refuse you treatment or perform an alternative procedure without your express consent. Instead, if the doctor refuses to follow your legal wishes, they must transfer your care to another provider.
If you have not created documents and you only verbally communicate your wishes to your spouse or children, then it is much more difficult to say for certain what you would have wanted. As the Maryland Attorney General points out, perceptions vary from individual to individual, and memory fades over time. Your loved ones may not remember word for word what you said you wanted, particularly if they are trying to make decisions during a medical emergency for you.
That covers medical wishes, but what about your wishes regarding property and beneficiaries? Your personal representative, sometimes also called your executor if they are in charge of your estate, is bound to follow your wishes regarding how to distribute your assets. An executor is not empowered to make changes to a will or to deviate from the language in that will unless a court order has been issued ordering a change. In order to close an estate, paperwork is filed with the state, the IRS, and other state and federal officials regarding the legality and veracity of its distributions. An executor must file the Will with the probate court in order to have full legal authority to act, and then certain information also needs to be reported to the court as part of the closing process: distributions, appraisals, expenditures, etc. It is not impossible for an executor to engage in misconduct—but it is highly visible, and very likely that a rogue executor may be caught.
Only you can make a legal change to your documents, including your advance directives. Your family, friends, and health care providers cannot change or revoke your wishes as long as they are laid out in a legal document.
Find more information on advance directives at the Maryland Attorney General’s website: https://www.marylandattorneygeneral.gov/Pages/HealthPolicy/AdvanceDirectives.aspx