More than 30% of the calls that come in to the National Legal Office are related to the area of Wills, Trusts and general Estate Planning. We routinely receive calls such as:

“Do I need a Will?”
“What is a Power of Attorney used for?”
“What is Probate, and how do I avoid it?”
“What happens if I have to enter a nursing home?”
“What are estate taxes?”

In this multi-part series, I will look to answer these questions along with explaining the basics of completing a solid estate plan. There are four basic documents to an estate plan that will be discussed in this article.

1. Living Will – This document is not really a Will, and the terminology tends to create confusion among people. A Living Will is an expression of one’s final wishes should a medical emergency arise. This document is optional, of course, but it is very valuable.

Since many of us would not wish to be kept alive if we were in a vegetative state, nor do we wish to be a burden upon our families or loved ones, this document could give your family or loved ones the ability to remove life support and allow you to die with dignity.

Each participant in the Legal Service Plan (along with their spouse/domestic partner) is entitled to this document at no charge. A Living Will needs to be signed and witnessed by two individuals. It is advisable to keep possession of this document and inform your “representatives” of its location; please do not keep it in a safe deposit box, but somewhere else that is fireproof and safe.

Keep in mind that you do NOT need to execute such a document if it is contrary to your beliefs and wishes. This document does not need to be notarized an is revocable at any time by destroying the original.

2. Health Care Proxy or Medical Directive – This document allows you appoint an agent to represent you regarding medical issues if you cannot do so yourself. Your medical agent can consent (or not) to issues such as surgery, transfusions or other medical procedures. You can only appoint one agent at a time but there is a provision available to appoint successor agents.

Without this executed document, it is possible for close blood relatives to interfere in a domestic partnership relationship should one of the partners become ill and medical decisions arise. The law provides for one agent at a time; however, you can designate multiple successive agents. This sometimes creates an issue when a parent has more than one offspring and doesn’t wish to offend one by choosing one over the other.

It is a relatively easy document to execute as it only requires two witnesses and does not have to be notarized. Again, you will want to keep it in a readily available safe location and let the agent know where it is. And those individuals named in the document as agents should not be the witnesses.

Are these two documents recognized in other states? Yes. If I become a resident of another state in the future, must I execute new documents to conform to the new state?

Generally every state recognizes the documents of other states; however, it may be prudent to obtain new documents for your new state of residence to avoid the issue of unfamiliarity. You may obtain the new documents for the new state of residence free of charge.

3. Durable Power of Attorney – This document is extremely useful, but in the wrong hands can be a major problem. The Power of Attorney (if executed properly) gives the selected agent the ability to sign your name; he or she can write checks, make withdrawals from all your various accounts; and even sell your home, vehicle or other titled possessions.

The Power of Attorney is a financial asset document and is “durable”; this means that it’s good for the good for the remainder of your life, regardless of any illness you may suffer (including future mental disability of any nature).

This document ceases to function upon the death of the creator of the document. The Power of Attorney is a very involved document that requires two witnesses and multiple notarizations of your signature, along with notarizations of the signature of your chosen agents. It should be noted, though, that each person should execute their own document in the case of married couples or partnerships.

You may designate more than one agent (attorney-in-fact) to act on your behalf. You also have the option of designating successor agents or co-agents who may act separately or together depending on your wishes. In addition, you have the option of permitting your agents to make gifts to themselves as well as the authority (if so granted) to make “major gifts” by executing a special rider to accomplish that goal.

Powers of Attorney never expire even if new versions are adopted by the State; however, you are entitled to new ones periodically at no charge. Once an individual passes away, though, the Power of Attorney ceases to function and you must look to the Will or Trust to conduct the affairs of the deceased.

Is a Power of Attorney revocable? Yes. The easiest way to revoke it is to simply destroy the original and produce a new one. Copies are not usually viable except under extremely unusual circumstances. If you no longer possess the original, you must notify all of your financial institutions of the revocation of the power but that process can be tedious at best.

If you are required to enter a nursing home in the future and wish to qualify for Medicaid so that all of your medical expenses are covered by Medicaid, you may wish to transfer your assets to your children if they are your agents.

In the past when such a transfer was made to the children by the children, an issue of conflict of interest may have arisen. However, by specifically granting authority to your agent to do such a transfer, that issue is eliminated.

Stay tuned for part two of this article – which will discuss Wills & Trusts – in the January 2017 issue of the Preventive Law Guide.