News & Publications
Three Essential Legal Documents that Everyone Should Have (8-4-2012)
During my 40 years of practice I have developed the belief that when advising Estate Planning clients, an attorney should counsel their clients that each of them would be wise to at least give serious thought to preparing and executing the following documents: A Will, Power of Attorney, and a Living Will.
WILL -which is the declaration of a person’s wishes as to the disposition of his/her property to take effect after his/her death.
While there are various methods to dispose of assets subsequent to a person’s death a Will is the only method to distribute assets held solely in the decedent’s name at death without resorting to the State mandated Intestate Law. The Intestate Law was enacted by the Legislature to distribute a decedent’s estate when the individual did not have a Will and as such the distribution set forth therein is general in nature and does not take into account unique circumstances or an individual desires. An example is that a widow may only receive a portion of a decedent’s assets if the decedent does not have a Will.
In the event there are minor children surviving the decedent it is important to be able to express your desires with regard to who will provide for the physical needs of the minors and who, or what entity, will be responsible for dealing with the financial dealings for the minor.
In today’s society, with divorce and second marriages with blended families, it is important to make your desires known as to how assets held in your sole name will be distributed upon your demise.
There are but a few of the considerations that can be addressed through execution of a Will but there are many more issues that can be addressed based upon a person’s desires such as providing for a loved one with a special need or making a bequest to a favored charity, to name a few.
POWER OF ATTORNEY -wherein a person names another trusted and capable person or entity to act on his/her behalf with regard to financial or business affairs.
A Power of Attorney can be as specific or general as a person desires to make it and importantly can be revoked if the maker of the Power of Attorney deems circumstances warrant.
In the event a person becomes physically or mentally incapacitated without having an executed Power of Attorney, a Court may, upon Petition of an interested party, appoint a person or entity to oversee your financial affairs. Even in the event the Court appoints the same person or entity that you desire to handle your financial affairs, the process is time consuming and somewhat expensive.
Execution of a Power of Attorney allows you to control who will be in charge of your financial affairs when you are unable to do so yourself and be able to deal with your affairs in a more timely manner.
HEALTH CARE DIRECTIVE (LIVING WILL) -which is a document reflecting your desires relative to provision of health care to you in the event you are incapable of making decisions for yourself.
A health care directive permits you to express your beliefs and desires with regard to the level or care you desire in various medical situations. An individual can set forth under what circumstances he/she wishes the “plug to be pulled”, he/she desires tube feeding as well as other health care procedures.
A health care directive also enables a person to designate an individual of his/her own choice or a sequential list of individuals of his/her own choice, to make health care treatment decisions for the person when he/she is incapable of making or communicating his/her desires. Absent such a document being executed either the person named in the power of attorney, if the power of attorney grants such power to the Agent named therein, or the next of kin of the person would be the one to make treatment decisions, frequently without any guidance or knowledge of the person’s desires in this regard.