One of the most basic estate plans and one that every individual should have at a very minimum includes a Last Will and Testament, Durable Financial Power of Attorney, Durable Health Care Proxy and a Living Will. However, one mistake that seems to be common for many individuals who had engaged in estate planning years ago was only to have Will.
While this may have been the norm in the past, it is clearly inadequate today because a Will does not assist in any way an individual prior to his or her death. An individual with the best drawn Will could require a probate court appointment of a Guardian for him or her without any input as to who that individual may be simply because they neglected to include adequate Powers of Attorney in their estate plan.
A Last Will and Testament is a written and revocable document that takes effect only after an individual dies. The instrument states how the person wishes to leave their property and to whom they wish to leave it. This all happens once the Will is allowed by the Probate Court where that person was domiciled. (Because a Will must be admitted to probate to have any effect, today we recommend to most of our clients that some form of Trust in addition to a Will may be a better estate planning technique as a most Trusts have the added benefit of avoiding the whole time consuming, public and costly probate process).
A Durable Financial Power of Attorney is a written and revocable document that allows an individual who is competent and at least 18 years old to appoint another individual, called an attorney-in-fact, to act in his or her place. This document allows for such things as signing checks, making deposits, paying bills, contracting for medical or other professional services, selling property, obtaining insurance, and doing all the things that the individual could do in managing his or her own life, even if he or she becomes incompetent to handle his or her own affairs. The Power of Attorney can give very limited or very broad powers to the attorney in fact. There is also a “springing” Power of Attorney, called that because it “springs” into action if you become incapacitated.
A Durable Health Care Proxy is a written and revocable document that allows an individual who is competent and at least 18 years old to appoint another person, called a health care agent, to make decisions about medical care, including whether to sustain life support if health care providers determine that the individual is unable to make or communicate such choices themselves.
A Living Will is a revocable written document which describes the kinds of medical treatment an individual would or would not agree to if he or she were unable to make or communicate those choices himself. This document provides valuable guidance to an individual’s health care agent or health care provider who is trying to make important health care decisions. Ideally, one should have both a Health Care Proxy which gives another person the right to make binding decisions about his or her health care and a Living Will which would provide that heath care agent with additional guidance in making these decisions.
All individuals should have at a minimum all of the above-mentioned estate planning tools. The important distinction between the Last Will and Testament and the Durable Powers of Attorney and Living Will is that the Last Will and Testament operates only after death and approved by the Probate Court while the Powers of Attorney operate only while one is alive. Individuals who only have a Will should understand the importance of having all of these estate planning tools.
In fact, this writer feels that if given the choice, having only Powers of Attorney are more important than having only a Last Will and Testament.
Because while having an alternate decision maker both prior to and after death is very important, personally, I am more concerned with who will make my decisions while I am alive than after I am gone!