Every adult should have the following four essential estate planning documents in place:
The first of these documents is the last will and testament or simply will. When you create a will, you are known as the testator. The person whose job it is to gather and safeguard all your assets effective upon your death is the personal representative, otherwise known as an executor. The personal representative is responsible for paying any valid creditor claims owed by your estate as well as any taxes that might be due, and then distributing any remaining assets of your probate estate to the persons named as devisees (another name for beneficiaries) in your will. In the absence of a will, the decedent is said to have died intestate (without a will). In that case, the law dictates who the heirs (yet another name for beneficiaries) of the estate are. Again, it is the personal representative who is responsible for administering the estate. It’s always a good idea to name at least one alternate personal representative, if not two.
The second document is a general durable power of attorney for financial affairs. You, as the principal, select an agent to be responsible for managing your financial affairs when you cannot do so yourself for any reason. The circumstance we are most concerned about is who will manage your financial affairs in the event you can no longer do so because of incapacity. Powers of attorney typically fall under two broad categories: presently effective or “springing.” A presently effective power of attorney means that your agent has the authority to act on your behalf immediately after you sign it. With a “springing” power attorney, your agent does not have the authority to act until you are incapacitated. In order to demonstrate your incapacity, the agent is required to obtain a written statement from one or more of your physicians stating that you are unable to attend to your financial affairs. The agent then affixes then physician’s written statement to the power of attorney to demonstrate his or her authority to act. Again, it’s always a good idea to name at least one alternate agent, if not two.
The third document is a Health Care Power of Attorney. In this case, your agent is responsible for making health care decisions on your behalf in the event you are no longer able to give “informed consent.” This includes the authority to make medical decisions on your behalf whether it is in the
hospital or an outpatient setting. The agent’s authority also includes the ability to consent to your admission to a skilled nursing facility or assisted living community.
The fourth essential estate planning document is the living will. The purpose of a living will is to state your preferences regarding end of life care. Typically, it states that if you are in a terminal condition, persistent vegetative state, or a coma, and two of your physicians reasonably conclude that you will not recover, then and only then, you are instructing that any further life sustaining treatment should be withheld. If you fall within one of those specific categories, you are letting it be known that you do not want your life to be artificially prolonged through means such as artificial breathing or artificial administration of food or fluids. If you have specific wishes about what the living will should say, you can modify its terms accordingly. For example, if you don’t like the idea of fluid being withheld under any circumstances, you could eliminate that provision only.
Please contact us today at (520) 790-7337 to schedule an appointment with an attorney to discuss preparation of a new or updated will, power of attorney, and living will.