You’ve probably heard the term estate plan thrown around loosely. You may know a last will and testament (usually just called a will) is part of it, but you still aren’t sure what other documents are.
The confusion is understandable, given that some of the estate planning documents you’ve heard about in passing go by different names. Today, however, will end that confusion because below is a discussion about the documents included in an estate plan and the protections they can provide you and the people you care about most.
Last Will and Testament
A last will and testament, or will, is likely the most commonly known estate planning document there is. This is in spite of the fact that too many people believe they don’t need one and, therefore, don’t have one. Or they have an old will that they haven’t updated in years. Neither scenario is opportune.
Everyone, whether young, old, sick, healthy, married, or unmarried, should have a will as part of their estate plan. A last will and testament communicate your wishes, so you call the shots about to whom your assets will go and who will care for the people (or pets) you name instead of potentially the state.
A will can include various provisions, depending on your circumstances. Most commonly, your last will and testament will dictate how you would like your assets to be disposed of between the beneficiaries you list. With a will, there are no assumptions, meaning that the laws of succession will not come into play as they would if you died intestate (i.e., without a will). So, if you don’t want to leave anything to your father due to the contentious relationship you share, despite him being your only living relative, the intentions you set forth in your will must be followed by the executor you appoint.
Other provisions are generally included in a will. They can include the establishment of a testamentary trust, which takes effect upon your death and is used to hold assets for minor children, for example, and the naming of guardians of minor children or special needs adults. Your estate planning lawyer can advise you specifically about what should be in your will when you speak with them. A will’s provisions can entail many more provisions, each of which relates to your unique wishes.
But as important as a will is in your estate plan, it is not the only document that can provide security for you and the people you care most about. A will alone does not constitute an estate plan.
Powers of Attorney
There are two types of powers of attorney: a medical power of attorney and a financial power of attorney. Both serve their own function, and both are important. You should also note that the same person does not need to fill both roles.
Financial power of attorney (durable power of attorney for finances)
A financial power of attorney authorizes the person you name to access your finances even if you cannot do so yourself. Consider, for example, that you have been in an accident and you are unconscious for a month. Your mortgage and car payments will still come due, and hospital bills will need to be paid depending on your insurance coverage. With a financial power of attorney, the person you assign will be able to pay your bills in your stead.
As with anyone you are considering giving access to personal information, it’s critical you consider their trustworthiness and honesty first. Talk with the person you are thinking about naming to see whether they are comfortable with or can assume the role should they need to.
Keep in mind that a financial power of attorney, like any “durable” instrument, can be designated to go into effect for a finite period of time and end with a change of circumstances. Your estate planning attorney can help you decide what needs to happen for this power to go in and out of effect.
Medical power of attorney (durable power of attorney for health care/health care proxy)
A medical power of attorney should not be confused with an advanced care directive, which, to add more confusion, is also known as a living will (discussed in more detail below). A medical power of attorney gives the person appointed by the testator (the person who made the will) the power to make medical decisions according to the wishes the testator has expressed in their living will.
Given the level of responsibility involved, the person you decide to give a medical power of attorney to should be someone you trust and who is also ready and willing to assume the role. To determine whether someone is willing to assume any role in your estate plan, it is best to discuss your intention to name them first before doing so. The idea is not to put someone in an awkward position of having to decline a role, especially at a time when you or your family will need them most, and time loss could negatively impact your care.
As with a financial power of attorney, you can limit the scope of a medical power of attorney, when it takes effect, and when that power ends. Your estate planning attorney can advise you further.
HIPAA Authorization
It’s important to sign a HIPAA authorization form in conjunction with a medical power of attorney. This form allows the person with the medical power of attorney to access confidential medical information regarding your care as needed.
Without this document, doctors and hospitals cannot, by law, divulge anything information included in your medical records. If you have to petition a court to access medical information related to your care, it can result in time delays, time you and they won’t have to spare.
Advance Health Care Directive (a living will)
An advance health care directive, sometimes simply referred to as a living will (these terms are often used interchangeably though a living will is a type of directive) is a document in which you express how you would like to be cared for in the event you are incapacitated. A DNR (Do Not Resuscitate Order) is a well-known piece of the advance directive puzzle, instructing hospital staff if you are in cardiac arrest not to take any life-saving action.
That said, an advance care directive is open to more than this type of instruction. It can cover numerous health care decisions, such as whether you want to receive antibiotics or a feeding tube. Your estate planning attorney can go over the options with you.
Cremation Directive
Though cremation or burial instructions can be included in a will, it is more practical to use an affidavit directing the disposition of remains. Unfortunately, due to poor planning, a will isn’t always easily accessible to family members after a person dies.
The time it can take to find a will (if it can be located at all) or reach an agreement among family members about the disposition of remains may ultimately limit some options due to time constraints. A cremation directive can prevent confusion after you die and allow your final wishes to be honored.
Find an Alabama estate planning lawyer.
Before reading this article, you might not yet have realized that an estate plan is comprised of more than a will. But now that you can see the functions of each document, it is time to speak with an Alabama estate planning lawyer. Whether you currently have a will, some estate planning documents, none at all, or documents you had drafted a long time ago that could use updating due to changes in life circumstances such as divorce, death, or the birth of a child or grandchild, we can help. At Summit Family Law, our team of estate planning lawyers from either our Huntsville or Birmingham offices is here to serve you. Call us today.
