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Tuesday, 29 June 2010 00:00

Basic Estate Planning & Health Care Directive Documents

Why Wait Any Longer?

Health care has dominated the social and political conversation for well over a year.  People have expressed genuine concerns about the future of the health care system, the ability to control medical costs, and the opportunities to manage one’s own health.  Although you cannot control the health care system and medical costs, and you can only partly control how healthy you are, you can take immediate steps to control your own medical care preferences and estate planning – and make sure your preferences are followed.

Dempsey Law’s Trust & Estate Planning attorneys have the experience and can ably assist you with the documents that will meet your needs.  You owe it to yourself and to your family to see that you have the appropriate estate planning documents in place.  Often, basic estate planning will include these five documents: a last will and testament; a durable financial power of attorney; a power of attorney for health care; a living will; and an authorization for final disposition.

Last Will and Testament

For almost everyone, a simple last will and testament can meet your basic testamentary needs.  It is a single legal document that can accomplish the following goals:  identify the proper beneficiaries of your estate, which may include family members, friends, or charities; appoint your personal representative (and a successor) who is the person legally responsible for seeing that your wishes are carried out; designate a person who will care for your minor children, if needed, or for anyone else you may be responsible for and provide directions for their care; and control how you want your assets to be distributed to the beneficiaries of your estate after your death.  If you die without a will, then your estate will be divided according to the laws of intestacy under the Wisconsin Statutes which may be different than how you wish your estate to be 

handled.  Of course, if you have accumulated significant wealth (generally, a gross estate of more than $3,000,000), if you own a business, or if you have property in multiple states, you may need more extensive planning and a more complex estate plan to maximize what can be transferred to your heirs to specify how the assets are to be transferred, and also to minimize any federal or state tax impact. 

Durable Financial Power of Attorney

If you ever have a mental or physical incapacity or are out of the country, a durable financial power of attorney may be necessary.  This is a legal document that authorizes an individual or entity (called an “agent”) to act on your behalf for financial matters.  The most common uses for financial powers of attorney are for financial transactions or real estate matters.  With a durable financial power of attorney, you can choose when and to what extent you want to give power to another to act for you in financial matters.  Often, the power of attorney encompasses bill paying, banking, insurance, real estate, income taxes and the ability to do other specified acts.  It can be open-ended in time or can terminate on a specific date.  It is revocable at any time.  Having a durable power of attorney will protect against the prospect of your family having to go to court to have a guardian appointed for you in the event of incapacity.

Medical Power of Attorney – Power of Attorney for Health Care

A medical power of attorney, called a “Power of Attorney for Health Care” in Wisconsin, is a legal document that appoints an individual (usually a spouse, family member or trusted friend) as your health care agent to make medical decisions for you in the event that you are no longer able to do so.  The medical power of attorney may also include the agent’s powers regarding your admission to a nursing home or to a community-based residential facility.  It may also include provisions regarding your baby if you are pregnant at the time of your incapacity.  And, if you have not already done so, you may also make anatomical gifts at the time of your death.  The most common situation arises when you are either unconscious or your mental state no longer allows you the legal capacity to make decisions for yourself.  An executed copy of your medical power of attorney is also often kept on file with your medical provider, in case it is needed.

Having a medical power of attorney will protect against the prospect of your family having to go to court to have a guardian appointed for you in the event of incapacity.

Living Will – Declaration to Physicians

A living will, called a “Declaration to Physicians” in Wisconsin, is a legal document that identifies the types of medical treatments and life-sustaining steps or procedures you would, or would not, want, such as mechanical breathing, a feeding tube, or other means to extend or prolong your life in the event that you have a “terminal condition” or if you are in a “persistent vegetative state” as defined under Wisconsin law.  Having a living will affirmatively states your wishes to your family, loved ones and the world concerning your desires if you are ever in such a difficult situation.  A living will applies in circumstances where the decision to use medical treatments may extend your life for a limited period of time and not obtaining treatment would result in your death.  A living will is not intended to and does not prevent medical providers from denying you pain medications and other measures that would relieve pain or otherwise make you more comfortable.  A living will does not affect your medical treatment in the ordinary course in situations that are not life-threatening.  The determination whether your condition meets the definition of “terminal condition” or “persistent vegetative state” is determined by medical professionals, usually your doctor and at least one other doctor, or your doctor and a licensed psychologist who have examined you and/or reviewed your medical history and status.  An executed copy of your living will is often kept on file with your medical provider, in case it is needed.

Authorization for Final Disposition

An Authorization for Final Disposition is a legal document that allows you to identify who you want to be in charge of arranging your funeral or cremation services.  It also allows you the ability to put into writing what your wishes are for a funeral service, the scattering of ashes after a cremation, or any other wish or desire that you may have for handling the disposition of your remains.  In the event that there is no Authorization for Final Disposition document, the planning for these issues is often left up to the first heir to step up and be willing to pay for such services.

Conclusion

The medical profession has an ever-increasing ability to prolong lives.  Better diet and being more health-conscious also contribute to extending your years.  However, if you fall into frail health or if some misfortune should overcome you, you need to have a plan, and these basic legal documents will allow you to deal effectively with these situations.  You owe it to yourself and to your family to have a plan and have these essential documents in place.  The documents discussed in this article can provide you with that plan and protect your family from ever having to make very difficult decisions without knowing precisely what your desires are or from enduring time-consuming and costly court hearings in order to carry out your wishes.

Should you wish to discuss any of these documents in more detail, or if you already have any these documents but think that they may be in need of updating, our Trust and Estate Planning attorneys will be happy to talk with you and provide you with the benefit of their experience and knowledge.

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