1. Advance Health Care Directive
As an adult in the United States, you have the legal right to consent to or refuse medical treatment. You also have the right to give this power to another person under special circumstances (as when you are unconscious or otherwise incapacitated). Making your wishes known about the treatment you want when you are unable to communicate – or giving another the power to make specific medical decisions under those circumstances – – can be very helpful to medical personnel and to your family.
You can accomplish both things – empowering another to make medical decisions and stating your wishes regarding treatment – in a single document called an “Advance Health Care Directive” (also sometimes known as a “Medical Power of Attorney”). The portion of the Advance Heath Care Directive that that states your own wishes regarding medical treatment (as distinct from giving another person the right to make medical decisions) is usually referred to as a “Living Will”.
You will have the opportunity to consult with a JAG prior to your deployment at Soldier Readiness Processing (“SRP”) to discuss the Medical Power of Attorney and who you should designate as your health care agent.
2. Powers of Attorney
A Power of Attorney is a legal document that allows a person you designate (your agent or “attorney in fact”) to act on your behalf when you are unavailable. Upon deployment, you may not be able to manage some of your own affairs and you may need to appoint someone else to act for you. There are two primary types of powers of attorney –
❑ General: The individual you name can act in all matters. A general power of attorney gives your representative the authority to conduct any transaction on your behalf. The benefit to a general power of attorney is that your representative can use the power of attorney to handle any unforeseen issues that may arise during deployment. The danger of a general power of attorney is that you are legally bound by any decisions this person may make, including using your credit, and buying or selling property in your name. With proper planning, a general power of attorney is almost never necessary, and JAG recommends that you use a limited or special power of attorney instead.
❑ Limited/Special: A limited or special power of attorney grants your agent the right to act on your behalf only for specific matters. For example, the limited power of attorney form can be drafted to give your agent (usually a family member or fiancée) specific authority to manage household expenses and deal with insurance, taxes and other listed matters in their absence. You can specify on the form of limited power of attorney exactly what powers you wish to give your agent.
A will is a document that states how you want your property distributed upon your death and can contain provisions expressing your desires concerning care of your children, funeral arrangements and other matters. Your will must be in writing and must be signed by you and at least two witnesses. These requirements must be carefully observed, and it is strongly advised that you have your will prepared by a JAG or other attorney.
You will have the opportunity to consult with a JAG prior to your deployment at SRP to obtain or modify a will.
Maintaining Your Will. After your will has been signed and witnessed, you should give a copy to the person you appointed to be in charge of implementing your will (the “executor”). If you keep your will in your possession, you should store it in a safe, fireproof container. Your executor should be informed of where your will is kept at all times so that the probate of your estate may proceed smoothly in the event of your death.
Note: It is generally not a good idea to place a will in a safe deposit box because the bank will usually require a court order to open a safe deposit box in the event of the owner’s death.
Changing or Revoking Your Will. You can change or cancel your will at any time as long as you are of sound mind. Major life events such as marriage, divorce, death of a family member, or a new baby are good reasons to consider changing your will. You may revoke your old will simply by destroying it, or by writing a new will. Do not erase any part of your will or attempt to insert changes.
All military members married to military members or who are single parents with minor children are required to have a Family Care Plan. This is a working plan that outlines how your children and other dependents will be cared for during any period of separation—whether for short-term absences of 30 days or less (such as for temporary duty or annual training) or for long-term absences of 31 days or more (such as for deployments or extended temporary duty assignments). If you are single, you should also make a plan to address matters such as personal property (referred to as a Personal Care Plan.)
Although JAGs generally do not prepare Family Care Plans, we are available to advise soldiers on legal issues relating to these documents.