Estate Planning Basics

Will (AKA last will and testament)– A legal document that communicates a person’s final wishes pertaining to assets and dependents. A person’s last will and testament outlines what to do with possessions, whether the deceased will leave them to another person, a group or donate them to charity, and what happens to other things he or she is responsible for, such as custody of dependents, and management of accounts and interests. Some states do allow for unusual wills, such as a holographic will, others do not.

(Durable) Power of Attorney documents– This legal document allows another person, or persons, (the agent, or agents) to “step into your shoes”, so to speak, if you (the “principal” in the document) are unable to take care of these activities and tasks yourself, due to a temporary or permanent disability. Your agent can remain in control of certain legal, property or financial matters specifically spelled out in the agreement, even after you become mentally incapacitated. While a DPOA can pay medical bills on behalf of the principal, the durable agent cannot make decisions related to the principal’s health (e.g., taking the principal off life support is not up to a DPOA).

The principal can sign a separate durable power of attorney for health care, or healthcare power of attorney (HCPA), if he wants an agent to have the power to make health-related

(Health Care) Power of Attorney documents– The principal can sign a durable power of attorney for health care, or healthcare power of attorney (HCPA), if he wants an agent to have the power to make health-related decisions. This document also called a healthcare proxy, outlines the principal’s consent to give the agent POA privileges in the event of an unfortunate medical condition. The durable POA for healthcare is legally bound to oversee medical care decisions on behalf of the principal.

Revocable Living Trusts– a trust document created by an individual that can be changed over time. Designated beneficiaries, assets, distribution of those assets, and assigned trustees can be changed at the request of the trust owner at any time after the trust is established or while it is in force. Similarly, if the trust owner decides the trust is no longer appropriate, they can revoke it altogether. A change to a revocable living trust is completed through a trust amendment document initiated by the trust owner.

Irrevocable Trusts– a type of trust where its terms cannot be modified, amended or terminated without the permission of the grantor’s named beneficiary or beneficiaries. The grantor, having effectively transferred all ownership of assets into the trust, legally removes all of their rights of ownership to the assets and the trust.

Due to the fact that the laws vary from state to state, it is advisable to have an elder care attorney draft wills, and power of attorney documents for you. This is not an area to skimp on, with all due respect!

The Five Wishes

Wish1: The Person I Want to Make Care Decisions for Me When I Can’t. …

Wish2: The Kind of Medical Treatment I Want or Don’t Want. …

Wish3: How Comfortable I Want to Be. …

Wish4: How I Want People to Treat Me. …

Wish 5: What I Want My Loved Ones to Know.

The Difference Between A Living Will and a Health Care Proxy (Advance Healthcare Directives)

Living will

A living will is also known as a health care or medical directive. It is separate from the will that determines the inheritance of your assets. It focuses on your preferences concerning medical treatment if you develop a terminal illness or injury, such as a brain tumor, Alzheimer’s disease or head trauma that causes you to lose brain activity. Medical care in a living will may include instructions for the following:

  • Tube feeding
  • Assisted breathing
  • Resuscitation
  • Other life-prolonging procedures

It may also outline your religious or philosophical beliefs and how you would like your life to end. A living will is only valid if you are unable to communicate your wishes.

Health care power of attorney

A health care power of attorney gives someone else (the proxy) the ability to make decisions for you regarding your health care. Unlike a living will, it applies to both end-of-life treatment as well as other areas of medical care. However, like a living will, the proxy only has power to act on your behalf when you are unable to do so yourself, whether from loss of consciousness or mental ability. Medical professionals will determine if you are capable or not.

A living trust, also called an intervivus or revocable trust is a written legal document that can substitute for a will. Your assets and beneficiary designations are re-titled into the name of the trust during your lifetime, and then distributed to your chosen beneficiaries by your “successor” trustee. A device known as a “pour-over will” is also used to make sure that any assets that were not titled in the name of the trust at your death are “poured over” into the trust before being distributed.

The 3 Main Benefits of a Revocable Living Trust

1. Continuity of Management – Your successor or backup trustee can automatically step in and start managing your affairs if you become ill or incapacitated. You do not need a doctor’s certification or a power of attorney to take effort- it is built into the revocable living trust.

2. Avoidance of Probate – the probate process can be both slow and expensive, especially if an attorney is involved with the estate settlement process. This process is much faster with a living trust, because your trustee will pay your final debts and distribute your assets in weeks, generally, instead of many months or a year or two, which is common with the formal probate process.

3. Privacy – a will is a public document, so transactions can be public as well. A living will is a private document, and upon your death, your estate will be distributed in private.