By Jackie Bedard, Carolina Family Estate Planning, Cary, NC

If you’re reading this blog, then you’ve probably already done a bit of homework regarding estate planning and may have already read that a durable power of attorney is an important part of a comprehensive estate plan.  What you may not realize, however, is that there is a spectrum as to how complete and thorough the power of attorney can be.

Powers of attorney can range in scope from those that are “limited” to a specific task or set of tasks such as authorizing an agent to complete a real estate transaction on your behalf, to more broad powers that are intended to be ‘comprehensive.’

When it comes to estate planning, we’re typically talking about those ‘comprehensive’ powers of attorney.  However, there is still a broad spectrum of quality and comprehensiveness.  For example, the North Carolina General Statutes include a “Short Form Power of Attorney.”  Occasionally, I’ll have someone come in for a consultation that has one of these Short Form Powers of Attorney and thinks that they’re protected.  While it’s a start, unfortunately, I cringe a little when I see them, because I think this document often gives people a false sense of security.

First, one of the major motivations for executing a durable power of attorney is to ensure that your family doesn’t have to deal with an expensive and time consuming guardianship proceeding on your behalf if you should ever become incapacitated.  However, the statutory Short Form Power of Attorney leaves out many key provisions that may be needed by your family and it does not waive the ‘reporting requirement.’  What this means, is that if your family actually has to use the power of attorney, they’ll still have to go through a time-consuming and aggravating process of filing it with the clerk of court and filing regular accountings to the court system.

But even durable powers of attorney drafted by well-intentioned lawyers sometimes lack key provisions.  For example, one of the services that we provide is Medicaid and Nursing Home Planning.  Frequently, it will actually be the child of an aging parent that will seek our guidance.  In such instances, we then have to review the parent’s power of attorney to see what it authorizes.  Many powers of attorney do not provide the authority to create a trust, do asset protection planning r Medicaid planning or convey assets for planning purposes.  This can really limit our planning options.  The end result is that we might miss out on being able to save that family thousands of dollars.

A properly drafted durable power of attorney should be clearly drafted with thorough instructions so as to avoid family disputes but also provide the flexibility your family may need.  Don’t wait until a crisis for your family to discover the pitfalls in your current documents.  Call our office at (919)443-3035 and ask about our Upcoming Workshops.

When it comes to protecting your rights as a member of the aging LGBT community, you should consider consulting an estate planning lawyer who can help you make the right choices.  We hear horror stories of life-long partners who are denied access to one another, who lose their homes, or who don’t have access to inheritances upon the death of their spouse or significant other.  Planning in advance can help minimize the chances for these injustices.

There are different ways to protect your partner upon your death.

• Domestic Partnership – As the states go through the rigmarole of determining what does and does not constitute a marriage, there are still some designations that can protect your assets.  In some cases, this is the domestic partnership.  This type of legal declaration can provide the ability to inherit and to make medical decisions.  With the stringency of HIPAA regulations, the designation of “spouse” can be a very important one.
• Power of Attorney – A Cary estate planning lawyer who is familiar with LGBT concerns will likely advise you to go beyond the domestic partnership and also put powers of attorney in place.  These provide even more legal recourse that allows one partner to be responsible for the other in emergencies.  There are both health powers of attorney and financial powers of attorney, and both may be necessary for full protection.
• Wills – In order to circumvent the negative repercussions of a family that is unwilling to deal fairly with a surviving partner, a last will and testament can be an important legal document.  It can also help speed up the probate process and help ensure that your affairs are dealt with in a timely manner. For even greater privacy and protection, you may also want to establish a living trust.
• Beneficiaries – When setting up a bank account or insurance policy, be sure to clearly name your partner as beneficiary.  Otherwise, biological family members (or even previous legal spouses) may have rights to the money, leaving your partner out in the cold.

Of course, these are just some of the situations that may need particular attention from members of the LGBT community.  There are many, many concerns that need to be considered by all members of the aging generation.  Consulting a Cary estate planning lawyer is likely the most efficient and intelligent way to deal with all of these issues.

Ready to get started?  Call our office a call at (919)443-3035 and request a Peace of Mind Planning Session.

By Jackie Bedard, Carolina Family Estate Planning

Whether you live in Cary, North Carolina or Twodot, Montana, the need for estate planning is the same.  Sure, there are some laws that vary a bit from state to state.  Americans in general, though, need to prepare their estates in order to protect both their assets and those they wish to receive them.

If it mirrors the national average, then only about 35% of Cary residents have estate plans.  That means that 65% of Americans have not yet prepared for what will happen to their assets when they die.  These assets might include cash, stocks, bonds, real estate, insurance policies, and even personal items and heirlooms.  Without proper estate planning, none of those things are well protected.

The first step in estate planning is to make a list of your assets.  This can then be used to create a last will and testament.  It’s generally best to meet with an estate planning attorney, especially if minor children are involved.  In addition to figuring out who gets what item, this attorney can help you set up trusts and guardianships for those children.

Whether you have young children, adult children, or none at all, it is also important to create a health care power of attorney.  This document allows you to make choices about your medical care should you be unable to explain them yourself due to illness or injury.  This explains to doctors the proper course of action to take, according to your wishes, even though you are unable to discuss it with them at the time of treatment.

Estate planning for Cary residents should consider this vital information, including a power of attorney that officially transfers your legal and financial decision-making authority to the person of your choice when needed.

Finally, it will be necessary to name someone as the executor of your will.  When you pass away, this person will handle the administration of your last will and testament, as per your instructions.  When conducting estate planning for Cary residents, a qualified estate lawyer will ensure that this executor is given the appropriate legal authority.  In some cases, the attorney may actually be the appointed executor.

According to Cary estate planning attorney, Jackie Bedard, Alzheimer’s and Dementia Awareness Week (February 14^th –21^st) is the perfect time to have ‘tough conversations’ with aging parents about their wishes and plans should the disease ever strike.

CARY, NC, FEBRUARY 2011: “Does mom want to live in a nursing home?”

“How would dad expect living with Alzheimer’s or Dementia to affect his quality of life?”

“Is there legal documentation in place that ensures someone can act financially on mom or dad’s behalf if they are unable to?”

These are just three of many questions that experts are urging adult children to ask their parents during Alzheimer’s and Dementia Awareness Week (February 14^th- 21^st).   Without the answers to such questions, families could be left battling over long-term care, struggling financially and not truly honoring their parent’s wishes should the disease strike their family and their parents wishes not be known.

“Many families avoid talking about Alzheimer’s or Dementia until it’s too late,” says Cary estate planning lawyer, Bedard.  “Especially from a legal standpoint, if you don’t know your parents’ wishes or have the proper documentation in place, you could be left struggling financially to provide the quality care they need.

According to Bedard, there are five specific conversations adult children should have with their parents as soon as the opportunity presents itself.  They comprise the following:

1. Long-term care preferences- Does mom or dad want to live in a nursing home or would they prefer in-home care if the need presented itself?  If they prefer a facility, what amenities and activities are important to them at this point in their life?  These are questions that if discussed in advance can make the transition into an assisted living facility or a home-health care program much easier on everyone when the time comes.
2. Current legal documentation- It’s imperative that adult children find out what legal documentation their parents have in place before incapacity occurs.  This includes making sure their parents have a power of attorney, health care directive and HIPAA forms so someone can easily step in to make financial or medical decisions on their behalf.  Otherwise the family will be forced to petition a court for control over their parent’s affairs if they have passed the point of legal capacity.  Also, the adult children should know where such documents are kept and have easy access to them if needed.
3. Medical preferences and wishes- Adult children are urged to find out what type and how much medical care their parents want after receiving a diagnosis of Alzheimer’s or Dementia. Do they have specific wishes about life support or other end-of life medical treatments?  Who do they want to make such decisions on their behalf?  The answers to these questions will help your parents to feel secure knowing their wishes will be carried out during an otherwise emotionally-charged time.
4. Current state of financial affairs-  To ensure finances stay properly managed after a diagnosis of Alzheimer’s or Dementia, adult children should use this week to start asking tough questions about their parent’s financial affairs.  This includes finding out the location of any safety deposit boxes, bank accounts, investment or brokerage accounts, outstanding debts or other assets unknown to the family.   Otherwise, necessary assets needed to cover long-term care or other expenses could be overlooked when memory loss ultimately occurs.
5. Important contacts and information- While their memory is sharp, adult children should work with aging parents to compile a list of important contacts and information that will be useful to the family if memory loss occurs. This includes documenting key doctors, professional advisors (i.e. accountant, attorney, financial advisor) and important passwords for online accounts.

“While these conversations are certainly not easy to have, families can make the transition into living with Alzheimer’s or Dementia disease much easier by simply planning ahead,” says Bedard.  “Not to mention, mom or dad will appreciate your willingness to make sure their wishes are honored if and when incapacity occurs”.

Attorney, Jackie Bedard is the founder of Carolina Family Estate Planning in Cary, NC, a practice that specializes in estate planning law.  She is also an active member of the National Network of Estate Planning Attorneys.  For more information on how you can protect yourself and your loved ones, visit www.CarolinaFEP.com or call (919) 443-3035.

By Jackie Bedard, Carolina Family Estate Planning

As an estate planning attorney, I know Generation Y has a lot to think about…starting their careers, buying their first home, starting a family.  All of these things are beginnings, so it’s a rare day when someone in this generation wants to think about The End.  But there are 4 reasons that they might need to…

A lot of people think that youth is an excuse for putting off doing a will or trust.  But estate planning is not just about planning for your death.  It is also prepares you in the event you experience an incapacitating injury and are unable to make your own financial or medical decisions.  While the odds are certainly in your favor that you will not need an estate plan, should you have the misfortune of needing it, you and your family will be thankful.  Consider these four scenarios…

You need a plan in the event that you become disabled or incapacitated.

Unfortunately tragedies happen every day.  And you are not immune to them because you are young.  If something happens to you and you are no longer able to make decisions regarding your own financial, legal, and medical affairs you’ll need to make sure that there are basic documents in place such as a health care power of attorney, financial power of attorney and HIPAA authorization so someone can make decisions on your behalf.

You need to pass your assets.

You might be asking, “What assets?”  Even if you do not yet own your own home, you need to consider IRAs, retirement accounts and life insurance accounts offered through your employer. You need to make sure that beneficiaries are named in the right way to make sure that the people you want to leave them to get maximum benefit.

You need to name guardians for your children.

If you have children, you simply must name guardians.  You should be the one who decides who will raise them if you are no longer around.  You do not want this decision left to squabbling relatives or to a court system who doesn’t know you or your child.

You need to plan for your pets.

If you have a pet, chances are they are a big part of your life.  They are totally devoted to you and also totally dependent on you.  Have you stopped to think what might happen to them if something were to happen to you?  If you want to make sure your companion is cared for if the unexpected happens, you could choose to put together a plan for their continued care.  The plan may include directions about feeding, medical care and other needs along with funds necessary to provide for your pet’s support and to compensate the caretaker.

The scenarios above are just a few to consider when deciding if you need a will or trust.  I encourage you to talk with a wills and trusts lawyer.  Only then will you have the peace of mind of knowing that you are fully protected.

By Jackie Bedard, Carolina Family Estate Planning

If one of your 2011 resolutions includes getting your financial and legal affairs in order should something unexpectedly happen to you, I have a gift I think you’ll enjoy.

To be specific, I just put the finishing touches on a free report I wrote entitled, “What You Don’t Know CAN Hurt Your Family: 5 Easy Ways to Make Sure Your Children, Wishes and Assets Stay Protected Should Something Happen to You”.

In this report you’ll learn 5 easy ways to get your legal and financial affairs in order.  You won’t even need the help of an attorney for some of these important steps; simply follow my instructions in the guide and cross each item off of your “to-do” list as you go.

You’ll also discover:

• How to legally name guardians for your minor children in a way that will hold up in a court of law
• The difference between a will and a trust, and which tool you really need to make sure your family, wishes and assets stay protected upon your passing.
• The details about a simple document you can use to give someone legal permission to act on your behalf if you were incapacitated in an accident but did not die (…and without this document, your family could be facing some hurdles under the current HIPAA privacy laws!)
• How to amass your “entire family wealth” and leave a true legacy to your children (hint: you don’t have to be wealthy and it’s easier than you think!)
• And so much more!

To grab a copy of this report, simply visit http://www.carolinafep.com/5waysrequest.html

I’d also like to encourage you to forward this to any of your family or friends who really need to get their affairs in order.  I would especially encourage you to reach out to anyone who has minor children, owns their own home, cares for aging parents or is approaching retirement age themselves.

This article was originally included in our email newsletter on August 21, 2009. It may have been edited somewhat from the version that was originally emailed, so be sure to sign up in the upper right corner of our website to make sure you are getting our email newsletter hot off the press!

With all of the health care talk–as well as the debacles left behind by recent celebrity deaths–we’re hearing a lot about these:

• Will
• Living Trust
• Guardianship
• Probate

While this is a great opportunity for the media to educate the public on these important legal issues, the truth is often getting mangled. Furthermore, for most of the public, the information is confusing, stressful and they would just rather not hear about it.

So let me clear up the confusion, as one who deals with this on a *daily* basis…

Let’s start with the basics. Typically, in North Carolina, when a person with assets over $20,000 ($30,000 in certain instances) passes away, their assets will be handled in one of three ways:

(1) If they had no will, their assets will be distributed as mandated by the state statutory law through a court proceeding called probate,

(2) If the person had a valid will, the estate will still have to go through the probate process, but the court will carry out their wishes as stated in their will,

(3) If the person had a valid living trust (and their assets were re-titled in the name of their living trust–this is called “funding”), their wishes would be carried out in private, without the court’s involvement.

So … why does it matter to you?

The answer to this question depends on how much you care about what your loved ones will have to deal with after you are gone and how much control you want to have as to who gets what, and when and how they get it.

If you do nothing, you get no input on any of these questions and the court and one of your eager family members/friend/creditor who petitions the court will make these decisions on your behalf through a process called probate. Why do you care about probate? Often, the probate process can take 9-18 months and can be extremely costly. Your loved ones may have limited control and access to assets, it’s stressful for your family, and the process is completely public. The probate process can often lead to squabbling between family members and airing of the family’s dirty laundry.

If a person leaves a valid will, it will still have to go through the probate process described above and the headaches that go along therewith, but the court will have the benefit of knowing how you want your affairs handled. Instead of relying on the laws of intestate succession (which is the law that distributes your assets to your family members in the order of their relation to you–you can read more here), the court will pass on your assets to the specific people you have identified in your will.

Through a valid will, you can control WHO gets your assets, but you will have no control as to HOW and WHEN they get it.

A living trust (that has been properly funded!), on the other hand, gives you more control and offers significant protection to your family. If you are working with an attorney who has expertise in this field, you can control WHO gets your assets, WHEN and HOW they get it without the court’s involvement. Even better–with a living trust, it is a private administration and can generally be handled in a short period of time. Furthermore, a living trust can incorporate a lot of other great protections including protection from taxes, creditors, predators, medical catastrophe, divorce, remarriage and more.

You may be asking yourself: why would someone ever do a will instead of a living trust? Typically, a person will choose a will over a living trust for one of two reasons:

(1) they don’t know the difference between the two or
(2) the perceived “cost” of doing a living trust.

There are some obvious advantages to doing a living trust over a will, but starting with anything is better than ending up with nothing. If you are not yet ready to make a leap into the world of living trusts, a basic, will-based estate plan is a starting point. In addition to giving the court direction about how you want your assets distributed, every estate plan should also include:

(1) an advance health care directive, which identifies the person(s) that will make health care decisions for you, if you’re incapacitated, and expresses your wishes regarding health care treatments;

(2) a durable power of attorney, which identifies the person(s) that will make financial and legal decisions, when you can’t; and

(3) if you have children, it should also include a Children’s Safeguard Plan, naming both short and long term guardians to care for your children in the event of an emergency, as well as clear and specific directions to those guardians about how you would wish your children to be raised in your absence.

While we all care about what happens to our assets, every person over the age of 18 needs to have an advance health care directive and durable power of attorney (this includes adult children heading off to college!).

I hope this clears up the confusion…

If you’d like to read a little more about these documents, here are some links to past blog articles that go more in depth:

What Is A Trust?

Parents: 13 Reasons Why Trusts Aren’t Just For The Wealthy

What Happens If I Die Without A Will?

Problems With Intestacy

What Is A Will? Introduction to North Carolina Wills

What Is Estate Planning?

Two Legal Documents Every Adult Needs: Part 1

Two Legal Documents Ever Adult Needs: Part 2

We’re here to help!

The following article, written by national legal expert, Alexis Martin Neely, originated from Chris Brogan’s Dad-O-Matic blog.  Alexis was featured in an interview on Good Morning America this morning, where shared some important information that all parents need to hear:

***Featured on Good Morning America***

Here’s the segment on 5 Legal Documents Everyone Should Have

with Chris Cuomo & Alexis Neely

Becoming a dad is the ultimate step into adulthood.  It simply doesn’t get more real than that, does it?  That little face looking up at you makes you realize that life isn’t just about you anymore.  Suddenly, you are responsible for the well-being and care of a little person who is totally reliant on you.  And in some ways, this new “mini-you” that has come into the world makes you feel immortal.

On the flip side though is the lurking thought “what will happen to mini-me if something happens?”  If you are like most people (69%), you push away the thought because it’s too scary to contemplate your child being raised by anyone besides you.

But, here’s the thing … if you aren’t willing to take the time and invest the energy in setting things up for your little one (and her mom) the right way, you will leave your family with a world of hurt if something happens to you.

The good news is that setting things up the right way and doing the right thing by your family doesn’t have to be as painful as you think it will be.  If you are in the know about what you need and how to get it taken care of, getting your personal affairs in order can even be downright enlightening.

Let’s start with the bare minimum of what every dad needs to have in place to make life as easy for his kids and their mom if anything happens.

Document Set #1: Kids Protection Plan
Regardless of the size of your bank account, if you’ve got a child at home who depends on you, you need to have a comprehensive Kids Protection Plan® (KPP) in place to ensure her well-being and care in case you can’t be there.

A KPP begins with naming legal guardians to raise your children if anything happens to you and their mother.  But, that’s just the beginning. A comprehensive KPP will also name local friends or family as guardians for the immediate/short-term care of your children so that the authorities never have to take your children out of your home and into the care of strangers.  With a KPP in place, you’ll carry an ID card in your wallet listing the names and addresses of your immediate/short-term guardians as well as provide written instructions to all of the people who care for your children, such as babysitters and schools.  Finally, a KPP will confidentially exclude anyone you know you would never want to serve as guardian of your children to ensure there are no court-room battles over your child’s care and will also provide detailed instructions about things like health care, education, discipline and your values, so your children are raised the way you want, no matter what.

To get started with your Kids Protection Plan® by naming long-term guardians (which EVERY parent must do), go here and be guided through a process of first choosing the right people to raise your kids if you can’t and then easily document your choices … legally.

Document Set #2: Financial Durable Power of Attorney

A financial durable power of attorney is something every adult needs, even if you don’t have little kids at home.  This document is what will let your family access your bank accounts, pay your bills, and make financial and legal decisions for you if you are hospitalized or otherwise incapacitated.

This story should bring home the importance of having a durable power of attorney in place:

My law firm was contacted by a young woman after her father was hurt at his janitorial job, hospitalized and unable to communicate.  This man thought he didn’t need estate planning because his income was very low and he had less than $10,000 in the bank.

Unfortunately though, his failure to plan left his family in a lurch. They needed the little bit of money he had in the bank, but couldn’t access it without going to Court because the account was in his name and he didn’t have a durable power of attorney naming anyone to act for him legally.

The cost of going to Court was going to cost their family more than the money that was in the bank!

Don’t leave your family in this kind of a painful situation unable to access the limited resources you have because you didn’t do what you need to do.  Be sure you have a financial durable power of attorney in place and make sure it’s comprehensive and will work when your family needs it.

Document Set #3:  Health Care Directive (Living Will)

A Health Care Directive (also known as a Living Will or Health Care Power of Attorney) is another document set that every adult needs, even if you don’t have little ones at home counting on you.

These set of documents do two important things:

1. Appoint the person you want to make health care decisions for you, if you cannot make them for yourself; and
2. Tell your appointed decision-maker how you want those decisions to be made.

Each state has its own rules for how these documents should be prepared.  In some cases, your instructions can be all in one document and in others they need to be two separate documents.  The most important thing is that you get something down in writing.

And, once again, make sure you’ve got something that will really work when your family needs it.  I recommend giving broad discretion to someone you trust to make decisions about all of your health care decisions, including not only life-saving medical care, such as respiration, but continued nutrition and hydration in case you are incapacitated.  If you recall the Terry Schiavo case from several years ago, in which her husband and her parents fought over whether she should be kept alive or not and the case was brought all the way to the Florida Supreme Court, the issue was not whether to continue to keep her lungs pumping, but whether to continue to provide nutrition and hydration – be sure your medical directive addresses these issues.

Document Set #4:  Will:

When it comes to estate planning, most people think of having a Will.  Unfortunately, having a Will often provides a false sense of security to people who think “I have a Will, therefore, I’ve taken care of everything.”  That’s a myth. In fact, your Will is the least important of the 5 legal documents every dad must know about.

A Will sets forth what you want to happen to your assets at the time of your death.  But, here’s the thing, where there’s a Will and your assets are owned in your name, the Will merely acts as instructions to the Court as to what to do with your assets. That means your family is stuck dealing with the Court after you are gone.  Nobody wants that, trust me.

The Court process for handling your assets after your death is called probate.  It’s typically expensive, time-consuming, and always totally public, which means anyone in town can find out how much you’ve left behind, who it went to and when they get it.  That puts your loved ones on the radar of every con artist in the neighborhood.

A Will alone is really only appropriate for dad’s who have no (or very limited) assets titled in their name.  If you have assets, such as a home, bank accounts, life insurance, and retirement accounts, you need to have a Living Trust to keep everything out of court, totally private and make it super easy for your loved ones.
You may have heard that if you only have life insurance and retirement accounts that you could simply name beneficiaries on those assets and avoid probate.  That’s true, but not going to work if you have minor children because they are too young to be the beneficiaries of your assets and would end up in Court with a guardian appointed to handle them.  Not what you want.

Document Set #5:  Trust

If you have financial assets or real estate, you want to have a Living Trust.  A Living Trust is the single best way to make things as easy as possible for the people you love, bar none.

But, and it’s a big BUT, most people who have a Living Trust in place have one that won’t work when their family needs it.
It’s the same for each of these documents I’ve talked about; they are only going to work the way they were designed to work if the law stays the same and your life stays the same.

As your life changes, the documents need to change.
As the law changes, the documents need to change.

And, for your Living Trust, it won’t work unless all of your assets are titled in the name of it, not just once, but every time you acquire an asset in the future.

I’ve met with loads of people who thought they had everything taken care of because they had prepared these 5 documents or had them prepared by a lawyer, but because they had not been kept up to date or their assets were not owned properly, the documents didn’t work!

In fact, that happened in my own family when my father in law died.  He had spent thousands of dollars to work with a lawyer who put in place a set of documents for him and then didn’t keep them up to date and didn’t make sure his assets were owned properly on an ongoing basis.  What that meant is at the end of his life, we were stuck dealing with the one thing he thought he was protecting us against – the probate court and a fight with his ex-wife.

Even Michael Jackson, who no doubt spent hundreds of thousands of dollars with his lawyers, had a trust-based estate plan that he was probably told would keep his family out of court.  As we now know, it must have failed because his family has been dragged into court already multiple times since his death with everything open to the public.

So, yes, these 5 documents are absolutely vital because they will make life as easy as possible for your family, keep your loved ones out of court and get them easy access to your assets in the midst of a crisis, but only if they are kept up to date and your assets are owned properly.

Most people do not have the time, knowledge and discipline to do this for themselves the right way.  If you do, great.  But, who is going to guide your family to make the right decisions and carry things out the right way after you are gone?

Because when all is said and done, that’s really what this about, isn’t?

There’s nothing more important to you than your family.  They are why you do everything you do, right?  So, for them, find a lawyer who will guide you right during your lifetime and be there for your loved ones when you can’t be.  It’s far easier for you to take care of things now, while you are living and able than it will be for them to take care of things after you are gone.  Legal planning is not about the money; it’s about making life as easy as possible for the people you love … no matter what.

Alexis Martin Neely is America’s Personal Family Lawyer, author of the bestselling book “Wear Clean Underwear! A Fast, Fun, Friendly – and Essential – Guide to Legal Planning for Busy Parents” and the nation’s leading legal expert guiding you to smart financial and legal decisions for your family. Subscribe to Alexis’ free online magazine, Family Wealth Secrets, and have wealth advice delivered right to your inbox each week.

Special Update!

In honor of the Dad-o-Matic article and her appearance on Good Morning America, Alexis has convinced her publisher to give her vital book on legal planning for parents (Wear Clean Underwear, Morgan James Publishing 2008) away on Kindle for just .99.  Get your copy today right here.

Every adult should have a Financial Durable Power of Attorney and a Health Care Power of Attorney (also sometimes referred to as a Living Will, Advance Medical Directive, or Health Care Directive).  Regardless of your financial circumstances, these documents are critical for anyone who wants to protect their own well-being and wants to spare their loved ones from likely pain and aggravation. If you are in an accident and you do not have these documents in place, a significant burden may be placed upon your family.

A Financial Durable Power of Attorney (often referred to simply as a Durable Power of Attorney) allows you to appoint a person (referred to as your agent) to make financial decisions on your behalf, access your financial records, and take appropriate action to handle your financial affairs.

If you become incapacitated, your loved ones may not be able to access the appropriate assets and records to manage your financial affairs. Especially in the event of long-term incapacitation, it is crucial that you have appointed an agent to handle your finances.

The Durable Power of Attorney will allow your agent to use your assets to pay for the day-to-day expenses of you and your family, such as paying the mortgage or rent, utilities, medical bills, and so on.  It will also allow your agent to collect, on your behalf, any income which you may be entitled to such as Social Security, disability insurance benefits, or other benefits.  The Durable Power of Attorney will also allow your agent o file and pay your taxes, manage your stocks, bonds, retirement accounts and so on.  And, while your agent has broad powers, the agent is required to act in your best interests.

A Durable Power of Attorney can be drafted to be effective as soon as you sign it–this is commonly used by spouses so they may act on behalf of each other, for example, if one spouse is out of town.  Alternatively, you may prefer to use a “springing” Durable Power of Attorney, meaning that it will not take effect until a doctor certifies that you are incapacitated.  This creates a hurdle for your agent to obtain a doctor’s affidavit, but it can give you peace of mind if the idea of an immediately effective Durable Power of Attorney makes you uncomfortable.

Using a Durable Power of Attorney form from the internet is ill-advised.  Many, especially those of the “check the box” variety, are too generic and may not be honored by your bank or other financial institutions.  The internet document may not comport with the laws of your state of residence.   In addition, it is important that the power of attorney contain the appropriate “durability” language.   Without such language, a power of attorney will be ineffective upon your incapacity–the exact situation we are trying to protect!

If you do not have a proper Durable Power of Attorney in place and something happens to you, your family will be stuck with the frustrating, time-consuming and expensive process of having the court system appoint an agent on your behalf.  The time to complete such a process can create financial hardship for your loved ones and may result in the appointment of an agent that you would not have selected for yourself.  Take the time now to make sure that you and your family are protected.

See Two Legal Documents Every Adult Needs: Part 1 for more information on the Health Care Power of Attorney.

Every adult should have a Financial Durable Power of Attorney and a Health Care Power of Attorney (also sometimes referred to as a Living Will, Advance Medical Directive, or Health Care Directive).  Regardless of your financial circumstances, these documents are critical for anyone who wants to protect their own well-being and wants to spare their loved ones from likely pain and aggravation. If you are in an accident and you do not have these documents in place, a significant burden may be placed upon your family.

If something terrible happens and you are in the hospital and unable to communicate, the hospital will need someone else to make health care decisions on your behalf.  Deciding who will make such decisions, and the decisions themselves, can create an enormous family dispute among your loved ones as they attempt to determine what you would want to happen.

A Health Care Power of Attorney allows you to name the person (your agent) that you want to make your health care decisions if you are unable to make those decisions yourself. It also allows you to let your agent know how you want your health care decisions to be made.

The Health Insurance Portability and Accountability Act (HIPAA) strictly protects who may access your medical records.  A Health Care Power of Attorney will include the appropriate language to ensure that your appointed health care agent will be able to access your medical records so as to be better equipped to make an informed decision regarding your treatment.

Remember, if you are in an accident or some other ill fate befalls you, your family will already be scared and worried about you.  A Health Care Power of Attorney will make it easier for your family to navigate the legal red tape and help them feel comforted in knowing that your health care decisions are being made in accordance with your wishes and beliefs.

See Two Legal Documents Every Adult Needs: Part 2 for more details on the Durable Financial Power of Attorney.