17 Sep Your Essential Estate Documents
Everyone should have minimum basic estate docs in a secure and accessible location in event of their disability or death. These legal documents will help your estate administrator/friends/family have the necessary docs and information to carry out your wishes upon disability or death. If you pass without a (properly executed) will, Maine’s intestate succession laws will control how your property is distributed upon your death. If you become incapacitated and do not have a power of attorney document and/or a health care directive executed, an interested person can petition Maine’s probate court for guardianship, and control over you and/or property.
Often called a Last Will and Testament, a will is the most basic estate planning device. A will arranges the handling of, and distribution of, important property matters when you die. A will specifies who gets property stated and covered by the will. In addition, if you are a parent to minor children a will can also name a personal guardian to raise your minor children, as well as establish a testamentary trust for money or property you leave to your kids what are not responsible enough to deal with those things themselves. If you pass without a will and you did not dispose of your assets through other means, such as through a 401(k) beneficiary designation, trust or joint tenancy, the probate court will distribute your property as our state’s intestate succession laws dictate.
Advance Health Care Directives (AHCD)
An AHCD gives direction and legal authority for medical decisions if you are unable to make or communicate such decisions. There are two common advance health care directives: a living will and a durable power of attorney for health care. A living will expresses ones wishes for extraordinary medical treatment if they become unable to make the decisions and choices on their own. A durable power of attorney for health care names a person to be an agent to make health care decisions if one becomes unable to do so. Often a living will and durable power of attorney for health care are combined in one document. Unless one desires a customized attorney drafted AHCD, best practice is to use the Maine Hospital Association (MHA) model Advance Health Care Directive. Using the MHA model AHCD provides standardization and familiarity to health care organizations and physicians following the AHCD to determine a patient’s wishes and care. If you do not have an AHCD and become incompetent or incapacitated, your health care provided may make decisions for you or a judge will appoint a conservator to make decisions for you. Such proceedings are costly, time consuming, and are public and the appointed individual may not know your wishes.
Power of Attorney
A power of attorney allows you to appoint another individual, your attorney-in-fact or agent, to handle your property if you are unable. You can define and limit your attorney-in-fact’s authority, powers and actions. If you do not have a properly executed Power of Attorney document, your spouse, close relative, companion or friend will have to ask a court for authority over some of your affairs if you become incapacitated. This procedure is called a conservatorship or guardianship proceeding, and it can be time-consuming, expensive and stressful.
Your estate documents should express your intentions and wishes, and you should review them annually, and upon the occurrence of major life events, such as marriage, divorce, the birth of any children, or the death of anyone named in your documents. Without these minimum estate documents in place, a court may decide what happens to your assets (and children!) and appoint a guardian to control your medical decisions and/or assets. A will, health care directive and power of attorney are the most basic documents for your estate to express your intentions. Additional estate planning documents, such as trusts, asset lists, final arrangement letters, may be and many times are appropriate for certain estates, and I will discuss those in other posts. Estate planning lawyers and skilled financial planners offer expert assistance in assessing your estate and developing a plan and drafting the appropriate documents that fit your circumstances and grant your wishes in the event of incapacity or death.