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LIFE AND ESTATE PLANNING: The BASICS

Everyone should have these Basic Life and Estate planning documents.

NOTE: When I say everyone, I mean EVERY person over 18 and able to sign these documents. This includes children who have turned 18. The law considers them adults. Parents are no longer legal guardians with the right to make decisions for them or access private information like banking, medical or school records.

When I meet with you I’ll ask if you have them.

If you do, please bring copies.

If you don’t, I will recommend that you have them.

A Will: A Will controls how your property passes, and to whom it passes after your death. In it you select your Executor and perhaps Guardians and Trustees if necessary.

  • A Will is only effective after you die.
  • A Will requires a proceeding in Probate Court.
  • A Will only disposes of property that goes into a Probate Estate, not property owned jointly or with named beneficiaries.

 

A Durable Power of Attorney: A Durable Power of Attorney names someone as your agent to make “business” decisions for you.

  • A Durable Power of Attorney can be effective only if you are disabled and unable to make your own decisions, or it can be effective immediately.
  • A Durable Power of Attorney can be very broad or very limited in the scope of powers granted, but usually it is very broad.
  • A Durable Power of Attorney is very helpful for disability planning, as an alternative to a Guardianship.
  • A Durable Power of Attorney should have specific gifting powers to enable it to be used for Medicaid planning.

 
Warning! A Durable Power of Attorney can be a blank check! Choose your agents wisely.

An Advance Health Care Directive: An Advance Health Care Directive allows you to do several things in one document. Like the former Durable Power of Attorney for Health Care (which it replaced in July of 2004) it allows you to do the following:

  • An Advance Health Care Directive names someone to make medical decisions for you when you can’t make them yourself.
  • An Advance Health Care Directive is only effective if you are unable to make medical decisions for yourself.
  • An Advance Health Care Directive can specify any treatment you want or that you don’t want.
  • An Advance Health Care Directive can specify terminal care decisions.
  • An Advance Health Care Directive is much broader than just terminal care decisions, it allows all decisions for all types of medical procedures, from the mundane and routine to the experimental.

 
The Advance Health Care Directive also replaces what used to be called the Living Will. It allows you to state the kind of medical treatment you want if, and only if, you are in a Terminal State with no reasonable prospect of recovering the ability to think and act for yourself. If you already have a Living Will you should know the following:

  • A Living Will is a statement to family, medical providers, friends and anyone else as to what your wishes are.
  • A Living Will is not a replacement for an Advance Health Care Directive.
  • A Living Will compliments an Advance Health Care Directive.
  • A Living Will is also called a Terminal Care Document.)

 

The latest Advance Health Care Directive law also adds several new components to the former documents.

  • You may make a statement about your wish to be an organ or tissue donor in the document.
  • You may give your agent the authority to make decisions regarding the disposal of your remains after your death, including burial instructions.
  • You may designate your Health Agent as your Medical Guardian in the event of Guardianship.
  • You may deal with mental health issues specifically.
  • You may state in more detail quality of life issues and desires.
  • You may, under certain circumstances, allow your agent to make decisions while you are competent and even over your objection.

 
A HIPAA Release: A HIPAA Release authorizes the hospital, your doctor and any other medical professional to release your personal medical information and discuss the same with those whom you specify in the document.

    • Most doctors and hospitals have you sign their own form when you are admitted. However the form may not be complete as to your wishes at the time.
    • You may not be able to sign when you are admitted, which means unless you have signed in advance, there is a restrictive list to whom information may be revealed.
    • This form becomes more or less important, depending on your other planning documents. However, it needs to be considered and is becoming more important all the time.