By Robert J. Green, Esq.
When most people hear the term “estate plan” they think of a Last Will and Testament. A Will is an important document that serves as a set of instructions to be carried out upon a person’s death. However, an estate plan is actually a collection of several documents that not only deal with a person’s estate upon their death, but also controls decision-making if a person is alive, but unable to make their own decisions. These documents are called Power of Attorney documents and Advanced Directive documents, and they should be part of your planning documents.
While every situation is unique, I often suggest to my own clients that the documents dealing with what should happen if someone cannot make their own decisions are more important than a person’s Will. This is simply because unlike a Will, these documents deal with very important decisions about a person’s health, welfare, and finances while that person is still alive. You will not be around to assess how well your Will is used or followed, but you would live through every minute of the circumstances created by use of your Power of Attorney and Advanced Directive documents.
Power of Attorney documents will typically include two categories: health care decision making, and financial decision making. These are the documents in which you get to determine who will make all of your health care and financial choices for you if you are unable to make those decisions yourself. On the health care side, this can include things like what doctor you see, what insurance options you use, what medications you do or do not take, where you live (own residence vs. assisted living or nursing home, for example), and what treatments or interventions should or should not be provided to you near then end of your life. Advanced Directives such as a Living Will, and a Physician’s Order for Scope of Treatment can also be part of the determination about what treatments and interventions will be provided to or withheld from you.
On the financial side, your Power of Attorney document is where you indicate who will make all decisions and manage all aspects (unless you limit them) of the things you own. This typically includes all of your bank and financial accounts, your real property, your taxes, your social security or other government benefits, your business interests, your monthly income and expenditures, and anything else related to what you “owe, own or loan.”
If you imagine for a moment that someone other than you is making all of the decisions in your life concerning all of the important topics just mentioned, it is not hard to be convinced that the documents deciding who that person is and what that person can or cannot do may be the most important part of your estate plan. Yet, I often meet people who do not have any of the above documents in place, or have old and outdated versions that do not express their current wishes or even the current status of the law. It is also important to know that if you do not have Power of Attorney documents in place, and you do become in need of someone to make your decisions for you, someone is going to have to go before a judge in a guardianship and/or conservatorship court process to get that authority. That process is expensive, time consuming, and has no guarantee of resulting in an outcome you would like.
Don’t leave these matters to chance, and don’t assume you have what you need in this regard. Getting these important documents in place is typically easy to do. Some law firms, such as my own, will offer you a free consultation to come discuss these topics and even review any of your existing documents to be sure they will accomplish your desired outcome. Be sure to get good advice about what may be the most important part of your estate plan.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.