When potential clients seek my estate planning services, they often start the conversation by asking about drawing up a will. This is a natural impulse, since it’s a document that is used in non-legal conversation, and is seen in movies and on television.
A will allows you to determine what should happen to your assets when you die. If you have special distributions that you would like to make that are different than the state laws for a deceased’s estate distribution, then a will is particularly important.
A will can also serve as a useful tool to your executor, the person administering and distributing your assets, and it may even be able to keep your estate out of probate, saving time and money.
However, a will only goes into effect once you die. It does not have any power while you are still alive, and in my opinion, the documents which control your assets and/or person while you are alive are far more important than those that go into effect upon your death.
Namely, you should think about a package that includes a power of attorney form, a medical power of attorney form, and a declaration of guardianship. While some may assume that these documents only go into effect upon your incapacitation–whether temporary or permanent–this is not necessarily the case for each document.
In this article, I will briefly discuss the three documents I believe are very crucial to every living individual. For further discussion on each document, stayed tuned to future blog articles. But for now, let’s take a brief overview.
A statutory durable power of attorney form allows the person creating it to designate a person to act on his or her behalf on a wide range of financial and legal issues. When executing a power of attorney, the individual doing so may decide to strictly limit the powers given to the named power of attorney (POA), or the power can be broad and wide reaching. I always advise my clients to make the power of attorney durable so that is it valid even after he or she becomes incapacitated. Naming a POA can make one’s life easier when one is unavailable to get to the bank, or out of town and dealing with something that has happened to one’s house or car. It can also alleviate the need for court intervention upon incapacitation of the individual. Overall, it can make one’s life much easier and less stressful. Who wouldn’t want this?
A medical power of attorney is specifically concerned with medical decisions. This document may also be called a designation of a health care agent. The person you designate with your power of attorney can also serve as your medical power of attorney, but this do not have to be the same person. While a statutory durable power of attorney may become effective immediately, a medical power of attorney will only become effective upon your incapacity. While you still have capacity, your health care providers should also come first regarding your healthcare decisions. (It is common to also file a Directive to Physicians, articulating your specific wishes should you find yourself in a terminal or irreversible condition, but having both is not necessary. The MPOA is just another way though for you to control the situation should you be unable to do so. For your own medical care, if you’re incapacitated, the person you’ve designated as your medical power of attorney will be called on to make decisions for matters not covered in your Directive to Physicians.)
Lastly, the Declaration of Guardianship is your safety net; it is a document designed to help head off the conflicts over guardianship I discussed in a previous article. In filing this document, you designate the person whom you wish to serve as your guardian should you become incapacitated and you either do not have the above names powers already assigned and/or because someone has obtained an improper power of attorney (durable or medical). Prior to incapacitation, you may designate in this form, which will be used later as an exhibit to the Judge of your desire, of who you wish to have the ability to make decisions regarding your person and your estate. This may be the same person, or you can divide the responsibilities. You may also state anyone that you wish shall be prohibited form obtaining such powers.
Your initial impulse might be to only get a will put together when you call an estate planning lawyer, but I recommend a package of estate planning documents, which includes the three documents I’ve just discussed along with a will and any other documents which your attorney may designate as a need to fulfill your wishes. Planning for your death is smart, but planning for you while you’re still alive is even smarter.