Estate Planning Documents
The estate planning documents I will discuss in this post are important for every family to consider. They reduce stress in circumstances that commonly arise as people age. No one wants to think about what will happen as we or our parents get older, but it is best to be prepared for everything, rather than wait until it is too late. Indeed, it is a sad reality that death and disability often come unexpectedly even to younger people. With that in mind, here are the first two of the “big five” estate planning documents that everyone should consider having:
Power of Attorney
1. Power of Attorney – Statistically speaking, most people have a greater chance of becoming disabled in any given year, than of dying. Without having a power of attorney in effect, it is far more likely that filing a court action to become the guardian for the disabled person would be necessary, which is a very costly process.
A Power of Attorney gives a designated person the power to make financial decisions for someone else, typically a spouse or parent. The person so designated, known as the “attorney in fact” (not to be confused with an “attorney-at-law”, which is what I am), can thereafter handle the financial affairs of the person who gave them power of attorney. Note that a power of attorney can be drafted only to take effect upon disability, or it can be drafted to take effect immediately, regardless of disability.
2. Health-Care Proxy – One of the hardest issues that arises when a person becomes disabled is who should make the health care decisions for them. This document lets them select who that person will be, and set guidelines for care, and for when the “plug can be pulled” before it’s too late. Otherwise, a situation may arise where a court order is necessary, which can be very expensive to obtain.
3. HIPAA Form– This form lets doctors disclose to one person, such as an adult son or daughter, otherwise confidential medical information about the person, such as a parent. As a practical matter, it allows an adult child to be directly involved in the medical treatment of their parent, even if the parent is not yet disabled to the extent that the Health Care Proxy (discussed last time) needs to be invoked.
4. A Will – Sets forth how you want your assets disposed of after your death. Avoids the confusion of what someone would want done with his or her assets after they die. It also allows you, not a judge, to decide who will be the legal guardian for your minor children. Finally, in some cases, it allows you to reduce or eliminate certain estate taxes that your family would otherwise have to pay on their inheritance.
5. Revocable Trust (in some cases—not always necessary). A revocable trust is something that you can put assets into and bypass probate (though not necessarily estate taxes) with respect to those assets. The assets would pass after death directly as specified in the trust. This can be useful, for example, for real estate located in a state where probate is very cumbersome, or for assets that the beneficiaries will need quick access to after death, as even a simple probate takes several weeks.
Our office can advise you with respect to the possible necessity to prepare some or all of these documents in your particular circumstances.