Wills – Basic Estate Planning Documents
All people need a basic estate plan. What is essential for you? In our opinion everyone needs a will, health care proxy, and power of attorney.
Wills
A Will is your simple instructions to tell the court who will get the assets you own after you die and who will ensure it gets done (your Executor). Without a Will, your assets will go to the people the State of New York dictates, which may not agree with what you would want. More importantly, if you do not have a Will, the state will dictate who is in control of your assets and the distribution process. Most people do “Sweetheart Wills”; everything to my wife or everything to my husband. A properly drawn Will should have “stand by” provisions for underage or disabled beneficiaries. Many people do not want underage beneficiaries to be receiving large sums of money on their 18th birthday which occurs in most simple Wills. Additionally, today many people are receiving some form of state or federal benefits to help pay for a disability they may have. Naming them as beneficiary in your Will could instantaneously disqualify them from those state and federal benefits they are receiving. A properly drawn Will should have a stand by Special Needs Trust so you can still leave your bequest to a disabled beneficiary without worrying about it disqualifying them from their state or federal aid. And lastly, for those who choose to pursue it, a Will can incorporate a trust at your death to set up protection of the assets for your family members you leave behind which would provide them use of the assets without making the assets available to their spouses in divorce, lawsuits, creditors, or nursing homes. Unfortunately, since the trust is in the will it will still need to go through probate to be created and will not be automatically created upon your death. Contact us to discover the different types of Wills and which is best for you.
Joint and Beneficiary Accounts
Many people consider joint accounts, beneficiary-designated accounts, or payable-on-death accounts to avoid the need of a Will. While this does bypass the need for a Will and provides the named individual will receive your assets immediately after your death, there is no protection or guidance in the event the individual is not able to receive it or if you become incapacitated. For example, if you own something joint with a spouse and she is disabled at the time of your death, all your assets will go to her and then be available to pay for her costs in a nursing home. In addition, if you own assets joint with your children, they can be lost to your children creditors. If your child ends up in bankruptcy or divorce, oftentimes your assets may end up in the hands of a former spouse or bankruptcy court. Having joint accounts or beneficiary-designated accounts can be very dangerous. In limited circumstances, they do work but we recommend a comprehensive review of your accounts to determine the risks to your family and determine the best way to own your assets.
Health Care Proxy and Living Will
Many people confuse a Health Care Proxy and Living Will. A Health Care Proxy is a legal document that authorizes someone to make your health care decisions for you in the event you are unable to. These decisions usually relate to life and death. A Living Will, on the other hand, is a legal document you create that states what your wishes are with regard to whether you want to be kept alive by heroic measures in a life and death situation. Typically, Living Wills indicate whether or not you want to receive cardiac pulmonary resuscitation (CPR), artificial respiration, intravenous or tube-type feeding, dialysis, or other more extreme medical support. Unfortunately, most standard Health Care Proxies and Living Wills fail to deal with the everyday issues of your health care needs in the event of your incompetency. We recommend you work with us to ensure the proper instructions are included in your health care documents.
Personal Care Plan
A personal care plan is a detailed set of instructions for your loved ones that identifies the specific request you have with regard to your care if you become mentally incapacitated. Most of us think of incapacity as being slouched over in a wheelchair drooling on ourselves, in fact, many people are healthy physically, walk, talk, laugh and enjoy life, but just may not know who they are. In these circumstances, you can present instructions as to what type of care you want provided for you should you need assisted living or nursing home care. This includes describing your personal hygiene needs, provide you access to outdoors, your willingness and guidelines for visiting family, go to public places, theater, what you like to eat, what you like to watch on TV, hobbies, books, other reading material and even if you want to attend church services. This is a very important guide to help your family members care for you in the way you would want them to but don’t assume your family members know.
Power of Attorney
Power of Attorney is a legal document that authorizes another person to handle your legal or financial matters. Most Powers of Attorney are valid when signed. That is, after signing the Power of Attorney, the individual appointed can go and empty your bank account immediately. Having a Power of Attorney is essential as without it, your family may be required to file a legal proceeding seeking guardianship. This process involves a court, lawyers and usually costs $3,000.00 to $5,000.00, and can take up to a year. A properly drawn Power of Attorney, on the other hand, can be as little as $150.00. The state has created “Statutory Powers of Attorney” which are used by many law firms and are also available in stationary stores. Unfortunately, while these provide general powers and authority, we consider them to be “blank checks”. The reason is these documents give broad authority without any instructions of how to use it. If there is a disagreement as to how it’s being used the courts will have to settle whether the agent acted properly. Another drawback of the Statutory Powers of Attorney is they fail to give enough of the necessary powers. For example, the standard Statutory Power of Attorney does not permit your agent to access safe deposit boxes, create trusts, do asset protection planning, or Medicaid planning in the event of your disability. These, along with many other powers that are not included, are essential to have in an estate planning context if one of those issues were to happen to you. Contact us to learn more about how to create a power of attorney that will be sufficient for all your needs but also include specific instructions so there’s no disagreement or lawsuits between family members.
