Emergency Estate Planning Documents

This past year, it is with a heavy heart that I have witnessed different families we know suffer from not having completed estate planning documents.  Half completed estate plan documents do not exist.  They are either completed or they aren’t. There are formalities that such important documents must meet in order to be valid legal instructions. The basic emergency estate plan documents that every adult should have are below.

• Health Care Power of Attorney

Can cover mental health issues too or be a separate document

• Living Will

• Durable Power of Attorney for Financial Matters

• Will, which should include

Funeral and Burial instructions

Personal Property Directive

• Guardianship/Conservatorship for minor children

I regularly hear people mix up the terminology of the above documents and not understand what each one’s purpose is.  In an effort to help clarify, some key points of each document are provided below in bullet points. By no means is this an exhaustive summary, it is meant to provide a basic understanding of each document.

The Health Care Power of Attorney or Advanced Health Care Directive

This document should be given to your primary care doctors and every time you go into the hospital.

• This document tells the world who you want to act on your behalf, your agent(s)

It is best to name at least two individuals in order of preference

Otherwise, the law/a court decides who makes the decisions for you

• When does it take effect?

When you are incapacitated

You can have a say in how your incapacity is defined

• This document tells your agents and doctors what you want to happen to you.

Without this, doctors do their best to keep you alive

Your agent is left guessing or making decisions based on their feelings/beliefs

• This document is only good while you are alive and terminates at your death

 

Living Will

This document deals with your health care decisions when you are artificially being kept alive or will die, unless life support type measures are taken. This document should also be given to your primary care doctors and when you go into the hospital.

• You chose your agents

• This gives your family and doctors important direction on what you want to have happen in these difficult circumstances.

• Examples:

Do you want to be resuscitated?

Do you want to be left to die at home?

Do you not want a ventilator?

Do you not want fluids and to be artificially fed?

Do you have religious beliefs that impact your decisions that need to be known?

• Do you wish to donate your body or organs to science?

• Do you wish to have an autopsy or do not want one?

Power of Attorney for Financial Matters or regarding real property

This document deals with all the actions your agent can take to manage your financial matters and real property.  This can be a different person than who you pick to make health care decisions for you.

• Who do you want to act for you?

Name at least two agents successively

• When does it take effect?

This usually takes effect upon incapacity

You can have a say in how your incapacity is defined

You can choose to activate it or give a family member, usually a spouse authority now, even if not incapacitated

• Are there any limitations you want to place on your agent?

• Can they pay themselves for their time?

• This enables your agent to act like you in all financial matters

Manage your bank accounts and assets

Pay your bills

• This document is only good while you are alive and terminates at your death

Will

When a person dies it is literally an accounting of their life. This often surprises and overwhelms family members.  A person must settle with their creditors, including their taxes. It is only what is left over after administering a person’s estate and paying their creditors that beneficiaries receive anything from the decedent.  Arizona does have a homestead exemption, spousal allowance and minor child allowance as some minimal protection against creditors for family members.

• If you don’t have a Will, then the law will decide what should happen to your assets and who can act for your estate

• A bond will be required when there is no Will. This requires money, credit check and application with a bond company.

This can be waived in your Will.

• A Will enables you to choose who you trust to safeguard your assets and protect them for your loved ones. This person is called a Personal Representative in Arizona.

• A Will tells the world who you want to receive your assets.

You must provide for minor children

If married, your spouse’s ½ community interest remains

In Arizona, a Will provides authority to two derivative documents that can be updated on their own over time, without requiring a new Will. They are called:

1. Personal Property Directive or Memorandum. This document enables you to give personal property items of financial or sentimental value to specific people.  Example – my Dad’s watch to my eldest son.

2. Funeral and Burial Instructions or Final Disposition Instructions. This document lets your Personal Representative know what should happen to your body (buried/cremated), where your final resting place should be, what kind of ceremony you want in as much or little detail as you wish.

Guardianship/Conservatorship for a minor Child

You get to have a say while you are alive or through this document, in who you want to raise your kids when you are unable to.

• You can nominate a family member or friend.

Discuss this with your child’s other parent

Discuss this with your children, if old enough to understand

Discuss this with the people you nominate

• A Guardian takes care of your child’s person/health.

• A Conservator takes care of your child’s finances.

Can be the same person or different from the Guardian

• The courts will be involved.

In Conclusion

One of the greatest gifts you can give your family is to have your estate planning and financial affairs organized. Should something happen to you either because of an accident or health condition, providing your loved ones with validly legal instructions on what you want to happen relieves considerable mental anguish for them. Organizing your documents and financial statements in a binder or file cannot be overstated in how helpful that is.

Facing such decisions with no legal direction from you overwhelms people and creates unnecessary fighting between family members. This is one area where every family member has an opinion and feels passionately about their wishes. I don’t think anyone wants to be remembered by, “what a mess I left for my family”. I believe we all desire to be remembered for the good we did, the laughter we brought, and the love we gave. Having your emergency estate planning documents carefully thought through and expertly executed can go a long way towards leaving our loved ones the legacy we desire.

Warmly,

C. Margaret Tritch Buonocore