What is a Will?

Many people consider utilizing joint accounts, beneficiary-designated accounts, or payable-on-death accounts to avoid the need of a Will and avoid probate administration. While this does bypass the need for a Will and the necessity of having to probate the assets, and provides the named individual will receive your assets immediately after your death, there is no protection or guidance in the event the individual is not able to receive it or if you become incapacitated. For example, if you own something joint with a spouse and she is disabled at the time of your death, all your assets will go to her and then be available to pay for her costs in a nursing home. In addition, if you own assets joint with your children, they can be lost to their creditors. If your child ends up in bankruptcy or divorce, your assets may end up in the hands of a former spouse or bankruptcy court. Having joint accounts or beneficiary-designated accounts can be very dangerous. In limited circumstances, they do work but we recommend a comprehensive review of your accounts to determine the risks to your family and determine the best way to own your assets.

Many people confuse a Health Care Proxy and Living Will. A Health Care Proxy is a legal document that authorizes someone to make your health care decisions for you in the event you are unable to. These decisions usually relate to life and death. A Living Will, on the other hand, is a legal document you create that states what your wishes are with regard to whether you want to be kept alive by heroic measures in a life and death situation. Typically, Living Wills indicate whether or not you want to receive cardiac-pulmonary resuscitation (CPR), artificial respiration, intravenous or tube-type feeding, dialysis, or other more extreme medical support. Unfortunately, most standard Health Care Proxies and Living Wills fail to deal with the everyday issues of your health care needs in the event of your incompetency.

A personal care plan is a detailed set of instructions for your loved ones that identifies the specific request you have with regard to your care if you become mentally incapacitated. Most of us think of incapacity as being slouched over in a wheelchair drooling on ourselves, in fact, many people are healthy physically, walk, talk, laugh and enjoy life, but just may not know who they are. In these circumstances, you can preset instructions as to what type of care you want provided for you should you need assisted living or nursing home care. This includes describing your personal hygiene needs, provide you access to outdoors, your willingness and guidelines for visiting family, go to public places, theater, what you like to eat, what you like to watch on TV, hobbies, books, other reading material and even if you want to attend church services. This is a very important guide to help your family members care for you in the way you would want them to but don’t assume your family members know.

A Power of Attorney is a legal document that authorizes another person to handle your legal or financial matters. Most Powers of Attorney are valid upon signing. That means once you sign the Power of Attorney, the individual appointed can go and empty your bank account immediately. Having a Power of Attorney is essential as without it, your family may be required to file a conservatorship proceeding in probate court seeking conservatorship. This process involves a court, lawyers and usually costs $3,000.00 to $5,000.00, and can take several months. This conservatorship proceeding can be avoided by having a properly drawn Power of Attorney in place.  A properly drawn Power of Attorney can cost as little as $150.00. The state has created “Statutory Powers of Attorney” which are used by many law firms and are also available in stationary stores. Unfortunately, while these provide general powers and authority, we consider them to be “blank checks”. The reason is these documents give broad authority without any instructions of how to use it. If there is a disagreement as to how it’s being used the courts will have to settle whether the agent acted properly. Another drawback of the Statutory Powers of Attorney is they fail to give enough of the necessary powers. For example, the standard Statutory Power of Attorney does not permit your agent to access safe deposit boxes, create trusts, do asset protection planning, or Medicaid planning in the event of your disability. These, along with many other powers that are not included, are essential to have in an estate planning context if one of those events were to occur.