Basic estate planning documents everyone should have

Ready to execute

Life planning documents that generally outline who you have chosen to make certain decisions for you in case you are incapacitated. Generally, life planning documents include Living Wills, Durable Powers of Attorney, and Health Care Surrogates. You can generally nominate any individual to serve as a fiduciary in your life planning documents.

Who will make decisions for me if I am incapacitated? Will I need a guardian?

Life comes with risks, and there is a possibility that you will be incapacitated during your life. It is during these times that life planning documents become key, especially for those who are unmarried, those whose spouse has predeceased them, or individuals with blended families. Nominating a person to make decisions for you in a binding legal document can save members of the family from fighting with each other and can end up saving you time and money. If a person does not have life planning documents, it may become necessary to have a guardian appointed for that person. The guardian will then have the power to act on behalf of the individual. The guardianship process is one that requires court action, it is not immediate and can be costly.

Life planning documents to the rescue.

To avoid the guardianship process, you can execute life planning documents. As mentioned in the introduction these generally consist of a Durable Power of Attorney, Health Care Surrogate and a Living Will.

A Durable Power of Attorney will allow whomever you nominate to make financial decisions for you, it will allow them to access bank funds, apply for federal benefits, pay your bills, etc. A Health Care Surrogate will allow whomever you name to make health care decisions for you. Finally, a Living Will is a document in which you inform your doctors that you do not wish to have extraordinary means taken to keep you alive, should you have no possibility of recovery and certain conditions are met.

Should I name just one person or two, can one person do it all?

There are different skill sets needed to perform the duties that come with each of the documents named above. For example, if you have two children, one who is an accountant and one who is a doctor or nurse, you may consider naming the accountant as your Power of Attorney, and the doctor as your Health Care Surrogate. Then again, you can name the same person to serve as both your power of attorney and health care surrogate. You should consider naming at least two backups to your primary choice, just in case something happens to that individual, or they do not wish to serve.

Do I have to share these documents with the people I nominate? Do I have to file the documents with the court?

You do not have to share your life planning documents with anyone prior to the time they need to be utilized or let anyone know that they are named in them. Additionally, the documents mentioned in this piece generally do not have to be filed with the court or made public. That said, it may be a good idea to let the person you are nominating as your fiduciary know that you have named them in your documents. As previously mentioned, the person you choose does not have to take on the role you nominated them for, they can always resign, in which case the next person on the list takes over. Having a conversation with the person you intend to nominate in your documents can put them on notice and can lead to a conversation, which may lead you to change your mind or to be put at ease about your choice.

Let your loved ones know that you have life planning documents.

Additionally, you should let someone you are close with know you have life planning documents, as they are no good if no one knows they exist. We give our clients the option of letting us keep their documents at no charge, we also provide you with a letter that you can share with your loved ones, letting them know that if anything happens to you, they should contact us for copies of your life planning documents.

Share your Health Care Surrogate and Living Will with your doctor.

We recommend that you take your Health Care Surrogate and Living Will to your next doctor’s appointment with you. Many new health filing programs now include a space for legal documents, and many doctors are affiliated with certain health groups. Having your doctor have your documents on file is convenient and should help clear up any potential confusion in case of an emergency.

Michael J. Faehner

Michael J. Faehner is the founder of Faehner PLLC in Oldsmar, Florida. Michael focuses his practice on estate planning, corporate,…

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