Fundamental Virginia Estate Planning

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There are many legal strategies you might consider implementing as you design your estate plan. However, there are a handful of "must have" estate planning documents you must create as part of your plan.

What are these essential documents I must create
without delay?

You should have: (i) a will – everyone needs a will; (ii) a medical power of attorney/advance health care directive appointing an agent for decisions concerning medical treatment when you cannot make or communicate your own wishes; (iii) durable financial power of attorney authorizing an agent you know and trust to take care of your financial matters when you are unable to do so yourself; (iv) a HIPAA directive, which is a legal authorization that allows a loved one or friend to access your medical information; and (v) a trust (based on your situation) to manage, protect, and eventually distribute your assets.

Will. A will is a legal document that describes your intentions for your estate when you pass away. Without a will, a person would die "intestate." In that case, state law divides and distributes the estate to surviving family members based on their legal relationship to the deceased. No consideration is given under state law to how "close" such family members were to the deceased (or if they fought constantly). Contrary to popular belief, a will still has to be probated – that is, there is still a complex, often expensive and time-consuming court process that your family members must endure before they receive an inheritance. In addition, because your will is not effective until death, it has no authority to appoint financial or health care decision-makers (agents) for you if you are incapacitated by an illness or injury. A will or other legal document is also required to appoint guardians (caregivers) for minor children. What could be more important than appointing the people you want to rear your children if you are not around?

Health Care Directive. A health care directive, often known by other names such as an "advance directive" or “living will,” is a document you sign now to specify the type and extent of medical and personal care you would want later, if you are unable to make and communicate your own decisions. Everyone age 18 and older needs to have this fundamental legal document signed, a copy on file with their physician, and a copy given to each of their appointed agents.

How does a health care directive help my family?
A health care power-of-attorney appoints the persons you want to make health care decisions for you, whether in order of priority or as a "team." A living will makes known your end-of-life decisions, so your family and the medical staff know what to do (or what not to do). A directive can take some of the worry and anxiety out of your final days for your family, as they will know your wishes when it comes to making tough choices. With that in mind, choose your "point persons" carefully. They will be charged with carrying out some potentially difficult decision and, perhaps, dealing with difficult family members.

Power of Attorney. This is a legal document giving another person — sometimes called "the attorney-in-fact" or "agent" — the legal authority to make decisions on business matters and other issues on your behalf. The exact scope of the power given is spelled out in the document itself. These powers cease when the maker passes away; they also may no longer be in effect when the maker becomes unable to make or communicate decisions. A "durable" power of attorney should be used in that situation, or a health care directive.

Permission to Access Personal Medical Information. This document should be right on top of or specifically incorporated within your health care directive. It is your authorization for named persons to view your medical records and discuss your care with medical providers. Without this document or specific authorization, there is the possibility your doctor may decide not to speak to your designated "point persons" — the persons you want to make those tough decisions about your care if you are in an unresponsive state.

Trusts. These come in all sorts of shapes and sizes. Generally speaking, a trust is a legal entity with at least three parties: the creator of the trust, the trustee, and the beneficiary. With most "revocable living trusts," you are all three parties. Depending on your circumstances, there could be advantages to establishing a trust. The most common advantage is avoiding probate. This can help streamline administration of your estate should you become incapacitated and upon your death, keeping your plans private in the process. Some irrevocable trusts may protect trust assets from creditors. For example, trusts established under a will or revocable living trust can protect the inheritance for loved ones from squandering, divorces, lawsuits and bankruptcies.

What type of trust is right for you?

It depends on a great many factors. Consult the experienced estate planning attorneys at Stapleton Elder Law to thoroughly review your situation and your objectives.

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