CREATING AN ESTATE PLAN

How Planning for your Death could Save Your Life

If you are like many people who call our office, you have probably heard about the importance of setting up an estate plan, but you might still be wondering what exactly an estate plan is. An estate plan can mean a lot of different things to different people, depending on what you are planning for and based on your individual needs. So, what does it mean to set up an estate plan then?

Setting up an estate plan can be defined as making arrangements for how your children will be cared for upon your death. Deciding who might take care of you and your finances in the event you are unable to do so for yourself. Figuring out who will receive your prize-winning baseball card collection after you are gone or deciding under what circumstances you might be willing to let a doctor “pull the plug.” As you can see, an estate plan can be used to cover many different scenarios, or it can be used to cover all of those things at once.

Overall, an estate plan outlines arrangements for your care, as well as the management and disposal of your assets in preparation for the event that you are no longer able to do so yourself. Because estate planning entails planning for a future event that no one wants to think about, it can be a daunting task that gets put off until it is absolutely necessary. The problem is that by the time it becomes necessary to have an estate plan in place, it may be too late to create one.

Generally, there are three main devices in any estate plan—plus an optional fourth device. These include:

1. Power of Attorney

2. Advanced Health Care Directive

3. Last Will & Testament

4. Trust

In this blog, we will discuss the first two devices, as well as the reasons it is important to create these devices well in advance of the need to use them. In future blogs, we will get into much more detail on these two devices, as well as the two other devices of an estate plan. But for now, let’s start with an overview of the Power of Attorney and the Advanced Health Care Directive.

POWER OF ATTORNEY (POA)

Making an assignment for a Power of Attorney is often the first step in creating a thorough estate plan. In straightforward terms, a Power of Attorney is a document used to give someone else, your agent, the ability to make decisions on your behalf. Those decisions can be personal, legal, or related to business, depending on what authority you choose to give to your agent.

Many other considerations go into creating a Power of Attorney. First, you would want to decide if your agent should have a general Power of Attorney, which means that your agent would have the authority to make decisions for you in all matters, so long as such a decision is allowed by state law. This could also mean your agent will only have a limited Power of Attorney, such as managing that beloved baseball card collection we mentioned earlier.

Another consideration that will need to go into creating your Power of Attorney is when your agent might gain the authority to act on your behalf. Will your agent be able to make decisions for you all the time, only if you become incapacitated? Will your agent’s Power of Attorney be limited to the month of June each year, at which time you make your annual pilgrimage to the Amazon rainforest where you have no phone or internet service?

Because your agent will be able to make extremely important decisions for you, it is essential to choose your agent wisely and after much deliberation. If you worry about one person having that much control over your life, it might also be wise to choose a few people to act as co-agents on your behalf.

This thought brings me to my next point – I would assume you do not want your random cousin whom you never got along with to be assigned to handle your affairs, correct? That is why it is necessary to create your Power of Attorney before you need it. Once you have been deemed “incapacitated,” meaning you are unable to make decisions on your own behalf, you will no longer possess the legal authority to create a Power of Attorney. At this point, the decision of who will care for you and your finances could be left up to the Court – and nobody wants that! Therefore, it is best to plan ahead and make that decision on your own before you need it.

ADVANCED HEALTH CARE DIRECTIVE (AHCD)

Many people know this device by many different names – Living Will, Medical Directive, Health Care Proxy, etc. – but almost everyone I speak to knows this device as the one that decides on when to “pull the plug” on their life. Although this device can help create an outline for those end-of-life decisions, there is a lot more to the AHCD than one might expect.

Overall, an AHCD is a legal document used to specify who can make medical decisions on your behalf and what specific types of decisions they will be able to make. It will also specify what actions should be taken for your health if you are no longer able to make those decisions on your behalf. As you can see, an AHCD creates another type of agent for you – a health care agent. One of the many great things about an AHCD is that you can make it as specific or as general as you want.

I often speak to people who say, “I know exactly under what circumstances I would want to be pulled off life support.” Some of these circumstances often include that they are no longer able to communicate, they are no longer able to feed themselves, or they no longer have any brain activity. However, once I start asking clarifying questions, people quickly become less sure about their answers. Some of these questions include, what if you are not able to verbally communicate, but you can squeeze a hand when someone says “I love you,” or, how long would you want to wait to see if brain activity resumes – two hours, two days, two weeks? Obviously, these details can become glaringly much more important when your life is literally at stake.

After this discussion, most people tend to go with a much less detailed approach to their AHCD. Instead, people realize the importance of choosing their health care agent or agents carefully and leaving those end-of-life decisions up to their health care agent, depending on the circumstances. Since this is a lot of responsibility to give someone, it becomes extremely important to figure out who your agent or agents will be ahead of time, so that you will be able to keep them informed about your personal beliefs and feelings over a period of time.

As you can see, it is extremely important to create your Estate Plan now before you need it. Ultimately, you do not want to end up in a situation where these important decisions are being left to someone that you do not know or trust. By creating an estate plan in advance, you will be grateful that you have been able to get all of these systems in place while you are alive and able to make decisions on your behalf so that you can continually keep your agents informed about how you would like them to handle your affairs for you if the need arises.