Estate Planning
PURPOSE OF ESTATE PLANNING
Before you begin making decisions on who you will designate as your agents in your estate planning documents, it is important you understand the purpose of each document. Overall, the Revocable Trust, Last Will and Testament, Durable Power of Attorney, Health Care Surrogate and Living Will are powerful planning tools for dealing with incapacity and disability.
TRUST AGREEMENT
Trusts are commonly used in estate planning, to plan for incapacity or disability, and after your death. The type of trust most commonly used is the revocable grantor trust, revocable living trust, or just revocable trust. A trust is a legal fiction or entity that owns property through its agent – the Trustee. After signing your Trust, you must fund the Trust by transferring certain real estate into the Trust (by way of a Deed), and changing the title of bank accounts, broker accounts, bonds, securities and other property into the name of the Trust.
*SEE Section on TRUST AGREEMENTS or TRUST ADMINISTRATION
LAST WILL AND TESTAMENT
It is important to have a Will if you own property, have children, or wish to make a special bequest to a friend, charity or a relative. Your Will is the best way to ensure that your property is distributed according to your wishes, next to a revocable trust agreement. If you were to create a Trust Agreement, we will be using what is referred to as a Pourover Will, which directs your assets be transferred (“pour over”) into your Trust upon your death.
DURABLE POWER OF ATTORNEY
This document is a very powerful and broad grant of authority to your designated agent, and, if need be, the alternate agent. This document allows your designated agent to manage your financials affairs. It gives them the legal right to sign your name to such documents as bank documents, the deed to your home, and tax returns. The effectiveness of the Power of Attorney begins upon signing and ends when you die.
ADVANCED HEALTH CARE DIRECTIVES
The Advanced Health Care Directives authorize your designated agents to carry out your directives in the event you are unable to communicate your desire to extend, withhold or withdraw life-prolonging procedures under certain legally-permissible circumstances. The Advanced Health Care Directives do not come into effect until you are incapacitated. The two principal Advanced Health Care Directives are the Living Will (regarding end-of-life decisions) and the Health Care Power of Attorney (regarding non-terminal issues).
HEALTH CARE POWER OF ATTORNEY
The Health Care Power of Attorney is a document in which you authorize someone to make health care decisions on your behalf, to the extent permitted by law. This document is used in conjunction with your Living Will, with regards to life-prolonging procedures, and provides for decisions where your death is not imminent.
LIVING WILL
The Living Will or Declaration regarding Life-Prolonging Procedures is your personal directions to your health care providers and designated agents regarding medical procedures designed to keep you alive. This typically occurs in situations where there is no chance of recovery and your death is close or imminent, but for the medical procedures.
HIPAA RELEASE
The Authorization for Release of Protected Health Information (a/k/a HIPAA Release) is a document where you authorize the release of limited private medical information to your designated agent(s), so that an agent can make informed decisions on your behalf when you are incapacitated. Unlike the Living Will and Health Care Power of Attorney, the HIPAA Release IS NOT limited to times when you are incapacitated.
DESIGNATION OF PRENEED GUARDIAN
Like the Durable Power of Attorney and Health Care Surrogate, the Designation of Preneed Guardian designates a Guardian of your person and property in the unlikely event a guardianship was imposed. While the Power of Attorney is intended to avoid the need for a guardianship, if such proceedings are commenced, the Designation informs the Court of who you think is best suited to act in your behalf.
