What legal documents will protect my interests as I age?
My greatest worry is that my spouse and my children would not be cared for in the event of my untimely passing or that a scam took away all that I have worked for during a period of incapacity. Therefore, I firmly believe anyone who strongly cares for others that they may leave behind should, at the very least have the following documents prepared with the assistance of an expert attorney to ensure that your financial, physical, and mental interests are the number one priority in any situation throughout the remainder of your life.
Many people know that a will is the legal document that presents you with the opportunity to make your last will and testament known. In other words what do you want done with your loved ones that you are still a legal guardian over and what should we do with all of this stuff that you could not take with you when you passed. If you do not make your last wishes known by properly executing a valid will, then your estate will be cared for via the probate process by what is known as intestate succession also known as dying without a will.
Durable Power of Attorney
During periods of your life you may become incapacitated or physically unable to carry on your typical day to day functions such as paying bills, mortgages, transferring money into the checking account etc. By having a durable power of attorney in place you would have pre-authorized one or more individuals to ensure that your financial affairs are not in disarray when you are fully recovered. A durable power of attorney should authorize your agent to care for all of your financial needs, but should have limiting language that automatically withdraws the agent’s authority in situations of fraud.
Durable Health Care Power of Attorney
When medical care is needed and you are unable to make the needed decisions for the care to be provided you will benefit from a health care power of attorney knowing that you have authorized someone to make those decisions for you. A typical health care power of attorney will not leave your authorized individual to make decisions without any direction. Make sure any health care power of attorney at the very least addresses: who your authorized agent is, treatment that you do not want, organ donation, autopsy, HIPAA waiver of confidentiality, and guardian nomination if needed.
A living will is a legal instrument that provides information on how you want to be cared for in your last days. Do you want your life prolonged at all costs? Do you simply want to pass pain free? Or do you want no care at all? These are decisions that can be made by you and you can make them known to those meant to make decisions for you at the end of your life or the medical professionals caring for you by having a living will prepared.
Durable Mental Health Care Power of Attorney
A durable mental health care power of attorney is similar to the durable health care power of attorney, but is distinguished by its typical specificity when the health care need is in regards to mental incapacity. A psychiatrist or phycologist will typically be brought in to determine whether you have the legal capacity to consent to care for any illness. If you do not have the legal capacity to consent then your pre-authorized agent will be offered access to your medical records to make decisions on the necessary care.
The following documents, if prepared can and will provide additional direction and added protection to your named beneficiaries, when your time has come to leave your estate to them.
A trust is a legal instrument that will shelter your remaining assets from sticky fingers and offer the likelihood of an easier transfer process of your estate to your named beneficiaries. Essentially if you have properly formed and funded the trust while living the transfer of the estate has already occurred and in turn will avoid probate. The avoidance of probate will not benefit you, but only your heirs as you will not be here to find out if your estate will be required to pass through probate.
Final Disposition Authorization and Instructions
When you have passed your family and heirs will be mourning your passing, having pre-planned how and where you prefer your remains to be cared for, will provide a relief to those that you have left in charge of carrying out your last wishes.
Take action today, so you can rest at ease knowing that you have done your part to protect your legal interests, and that you have left your loved ones with unimpeded access to your estate. Also, remember to periodically have your estate planning documents reviewed by a qualified attorney.
Contributing Attorney Writer: Shane Peterson is an attorney at Peterson Law Office PLLC where he focuses on asset protection, ranging from personal estates, to business acquisitions and formation.
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