How to Make Estate Planning an Attainable New Year Resolution
Estate planning can be intimidating. Wills, Powers of Attorney, Guardianship, Deeds, Trusts, and lawyers. The subject of estate planning is very mysterious to most people and can even feel scary to talk about. This can cause individuals to leave estate planning goals on the back burner. Truly, estate planning isn’t too complicated. The goals are often the same: 1) avoid conflict between family and friends when people become incapacitated or pass away and 2) avoid probate. We try to make these subjects far more palatable at Wakefield Law – we always offer free consultations with no obligation in estate planning. A comprehensive review can shed light on the unknown. Also, when we actually do get hired, we can often offer flat fees for plans, which takes the guesswork out of how much services will cost. In this blog, we’ll have a quick overview of some of the most important concepts in estate planning.
Have you ever asked yourself this question: who gets to make the decisions if you are unable to do so yourself? In this context, we are talking about all decisions: financial, medical, legal. Do you know? If you don’t have any documents in place authorizing certain people to make these decisions on your behalf, a court will end up appointing someone for you. What if the person the court chooses isn’t who you would choose yourself? What if the court lands on the right person, but you’ve never had a conversation with them about what you want them to do? What if, by the time the court gets involved, the medical decisions have already been made and unintended consequences occur?
First, Definitions
Ok, before we get ahead of ourselves, let’s back up a minute and do definitions. There are three main documents we are talking about when we talk about decision-making and incapacity:
● Power of Attorney - this is a legal document that allows you to appoint someone to make financial and legal decisions on your behalf.
● Advance Medical Directive - in this document, you are able to select a person who can make medical decisions on your behalf if you are unable to communicate your wishes to your healthcare providers.
● HIPAA Authorization - this short but incredibly important document acts as a release that allows your healthcare providers to discuss your private medical information with a particular person.
Without these documents in place, your family members, friends, and significant others may not be able to participate in your medical care (they may not even be allowed to get the full story about your condition from a doctor) without court intervention. If medical decisions need to be made quickly, getting the courts involved may take too long. And what about your financial obligations? Let’s take a deeper dive into each of these documents.
Let’s Take Things a Little Deeper with POAs
Imagine you are in a car accident and you are temporarily unable to communicate. While you are in the hospital recuperating, who will pay your rent? Who is entitled to access your business bank accounts to pay your employees? What about taxes? What about credit card payments? The list goes on and on.
POAs are used to solve these problems by authorizing a trusted individual to step in on your behalf if you ever need a financial and legal representative. POAs typically come into effect as soon as they are signed. Because they are always in effect, they allow your appointed representative to take on your financial and legal duties immediately when you are injured or become ill. However, you would really only want to choose an individual you trust implicitly. The fact that the POA goes into effect as soon as it is signed means that your representative could, in theory, actually take control of your finances or legal decisions even if you aren’t incapacitated.
It’s also possible to make POAs springing, so that they only become effective under certain circumstances, such as incapacity. This limited effectiveness reduces the risk that the person you choose would take over your decision-making without you needing them to do so. But, the challenge with springing POAs is that they don’t immediately go into effect. Certain conditions would need to be met before the POA goes into effect.
Keep Your Loved Ones in the Loop with Medical Authorizations
Let’s continue with the same scenario as above: you are in a car accident and are temporarily unable to communicate. Your long-time boyfriend or girlfriend rushes to the hospital. They want to talk to the doctor. They want to know what’s going on. Maybe the doctors have a choice of treatments, and they need to know what you would prefer. Without an Advance Medical Directive and HIPAA Authorization, not only can your partner not share your wishes with your healthcare providers, he or she can’t even get an update about your condition.
Ok, so your partner goes to the court to get authorization to give input on your medical condition. But wait, you aren’t married, and there is someone else -- say, a family member you aren’t particularly close to -- who shows up and wants to be authorized instead. What’s going to happen? It’s hard to say. That’s why an Advance Medical Directive is so important. It not only allows you to appoint a Healthcare Proxy who can make medical decisions on your behalf, it also allows you to state your preferences for care and end-of-life decisions right in the document.
Avoiding the Uncomfortable, Keep Your Documents Updated and Accessible
Even if you have completed these documents in the past, it’s important to update them regularly. Keep them in a place that is easy to access and make sure that trusted family members know where to find them. Maybe even send a copy to each of the individuals you appoint. Your documents do you no good if they can’t be found when they are needed. You may no longer be close to, or even on good terms with, a person you previously appointed. You wouldn’t want a former spouse or an estranged relative taking priority over your current partner for medical decisions, right?
Get in Touch with Wakefield Law to Get these Essential Documents in Place
Why not get started with Wakefield Law and cross estate planning off your resolution list? Give Wakefield Law a call to get these documents in place or update your old, outdated documents. We can talk about how to save yourself and your loved ones money, too. But let’s start with the most important stuff. 703-771-9740