Three Essential Estate Planning Legal Documents
The Living Will, Power of Attorney, and Last Will and Testament
Nov 5, 2009
In the real world no one lives forever and illness and injury along life's road comes at the most unexpected time. Unfortunately, the most difficult estate planning lessons are learned when an elderly parent becomes ill or dies and requires family members to be of assistance but there are no estate planning documents in place.
Planning for illness, injury and death is important regardless of health, age, or financial status. This article will generally discuss the Living Will, Power of Attorneys, and Last Will and Testament as essential estate planning legal documents.
Living Will
The Living Will speaks at the time one is unable to communicate regarding the medical care need in the event of a terminal illness or critical injury that leaves one unconscious. This document is not only for the person under medical care but for the family. It relieves the family of the difficult task of making these decisions during a highly stressful time.
According to the NOLO publication "Get It Together: Organize Your Records So Your Family Won't Have To," by Melanie Cullen and Shae Irving J.D., the Living Will advance directive addresses the type of health care treatment that will or will not be accepted and for how long. It also addresses preferences regarding life-sustaining measures and resuscitation or do not resuscitate (DNR) orders.
The requirements of a living will, as with all estate planning documents, are governed by state law in the United States. Elderly people and their families should consult an attorney to make sure that non-compliance with state law doesn't make this estate planning document ineffective or subject to a legal challenge.
Power of Attorney
The Power of Attorney is a very effective estate planning legal document. It addresses the question of who is elected to look after an elderly person when he is unable to look after himself? The Power of Attorney gives authority to another person to manage health care, business and personal affairs in the event the appointing person is unable to look after himself.
The existence of a Power of Attorney is important in conservatorship and guardianship court proceedings. Conservatorship and guardianships are commenced by the filing of a petition in a competent court, usually a local state probate court. The testimony or affidavit of a physician is typically required before a court can establish a conservatorship or guardianship estate. If the court, after a hearing whereby sufficient proof is presented, deems a conservatorship or guardianship necessary, the judge will then decide who to appoint. If, however, there is an effective Power of Attorney in place, the court would have to give due consideration to this legal document in making this appointment.
Shelby County, Tennessee Probate Judge Robert S. Benham, stated in a recent continuing legal education seminar to lawyers in Memphis that he sees an alarming increase in the number of contested conservatorships before his court. This means that either the respondent, family members or other interested parties are involved in an adversary proceeding over whether the petition should be granted and, if it is to be granted, who should be appointed over the estate. This means lots of lawyers and lots of money.
Depending again on the applicable state law, it may be best for an elderly person to have two separate Power of Attorney documents: one for health care and one for financial affairs. Often, state law requires that the health care power of attorney contain specific language. It is best to consult a lawyer regarding state's specific requirements.
Last Will and Testament
This is a written statement of a person's last wishes on how his property should be taken care of after he passes away. It doesn't only convey what the person wishes to leave behind to people and organizations, it is also often used as a medium for letting loved ones hear last words on what they meant to the testator.
The most important thing to remember is that if there is no Last Will and Testament, the judge will distribute assets according to the mandates of state law in an intestate proceeding. In addition to the results sometimes being completely contrary to what the decedent may have wished, this also involves what is often a costly and emotionally taxing probate court proceeding.
The mandates of state law should be consulted to determine the requirements of a valid Last Will and Testament in any given state. This will include such matters as the level of competency required to execute a Will and the number of witnesses required.
An elderly person who plans for injury, illness, and death is a performing a community act. Not only does it benefit the planner, but also the the family, friends, and favorite organizations. The Living Will, Power of Attorney, and Last Will and Testament are three essential legal documents to have for responsible living. After these essential estate planning documents are prepared, an attorney should be consulted regarding the registration options available to assure that they are on-hand when needed.
 |
