Why is it that when you enter a hospital they always ask if you have a Living Will or Durable Power of Attorney for Health Care?  Those documents, referred to Advance Health Care Directives, give to the health care providers and your loved ones your wishes regarding the termination of life support under the proper circumstances. Those circumstances vary from state to state.  Under Ohio law, they may be executed if two physicians have indicated in writing that you are either (1) terminally ill (going to pass away soon) or (2) permanently unconscious (as in a coma).

The Living Will is self-executing:  if you sign it and the circumstances described above exist, your wishes will be carried out, without anyone else required to act (although the persons you designate will be notified by the providers).  The Power of Attorney for Health Care requires the decisions of both the two physicians plus the individual you select before your wishes may be carried out.  In the event that you have signed both of those documents, the Living Will trumps.

Which of those alternatives is right for you?  This should be carefully discussed with your
estate planning attorney.  However, failure to have either or both of those documents could result in you being kept alive when there is no hope of recovery.

The Alpern Law Firm is a member of the American Academy of Estate Planning Attorneys.

Divorce and separation are becoming all too common in today’s society.  With the emotional, not to mention the financial, aspects becoming the focus, many people facing the breakup of a marriage tend to overlook another important issue, the estate planning aspect.

Often as part of estate planning, a husband and wife will execute either a durable power of attorney or a general power of attorney in which they will name each other as an attorney in fact or an agent. Normally, these powers of attorney grant the other spouse control over the assets of the individual granting the power.

If a husband gives a wife a general power of attorney, the wife can use this power to close or make withdrawals from the husband’s individual bank accounts, brokerage accounts and other assets. With emotions running high when a separation or divorce is looming, this is not a good situation.

To revoke a power of attorney, you must locate all of the original documents and destroy them and/or notify the agent that the power is revoked. Notifying the spouse that his power of attorney is revoked will do little good if the spouse is bent on taking your assets.

To address this, you should give written notice to all the institutions which hold your assets to inform them that the power of attorney has been revoked. If the issue of a spouse improperly using a power of attorney is exposed during the divorce, certainly a Court would try to remedy the situation, but if the money is gone, it’s gone, there may be no remedy in some cases.

If you are facing the breakup of a relationship in which you have legal documents executed naming someone as an executor, an agent or proxy, consult with an estate planning attorney to make sure you address the impact on your estate planning documents.

The Alpern Law Firm is a member of the American Academy of Estate Planning Attorneys.

Living trusts and a Durable Power of Attorney are both powerful estate planning tools – but which is best for your estate plan to manage assets later in life?

A revocable living trust allows you to transfer assets such as a home, financial accounts and personal property to a trust. These assets are then managed for your benefit during your lifetime, and either continue to be held and managed or transferred to your beneficiaries when you die.  Living trusts have become popular not only to avoid probate, but to help manage your assets later in life. 

A living trust’s greatest advantage is probably its use in managing property in the event of your incapacity. Establishing a revocable living trust now can prevent the need for a guardianship of your estate and property later.  The trustee of a living trust can be given the responsibility of managing your income-producing properties, such as investment assets and business interests. You can choose a trustee with expertise in those areas, such as a bank or a law firm, or even a family member to handle the Trustee duties.  In fact, living trusts are can also be used not only in the event of incapacitation, but also if you do not want to spend your time managing assets.   In addition, assets you place in trust while you are alive and able to transfer them will avoid probate. 

A Durable Power of Attorney, on the other hand, is a less formal estate planning tool that can be used in incapacity planning.  A Durable Power of Attorney is a document that allows you to appoint a person or professional to handle your affairs while you are unable to do so. The person or organization you appoint is referred to as an “Attorney-in-Fact” or “Agent.”

A Durable Power of Attorney can provide a simpler and more inexpensive method for managing your assets should you become incapacitated.  Your chosen agent must be someone you can trust to act in your best interests, as your only recourse for improper acts by your agent will be either to revoke the agency or, if you are unable to do so because of incapacity, for your family to seek legal intervention.

Many who have smaller estates find that a Durable Power of Attorney meets their needs, while more complex estates may benefit from the formality of living trust.  An estate planning attorney with expertise in living trusts can best advise you on the proper estate planning tool to meet your specific needs.

The Alpern Law Firm is a member of the American Academy of Estate Planning Attorneys.

A Power of Attorney is a legal document that authorizes someone else to act on your behalf. Powers of Attorney are most commonly used in legal transactions, especially those where you elect to have your attorney represent you, such as in a real estate negotiation.

But this kind of POA is automatically revoked in the event you become disabled. If you want your Power of Attorney to protect you during disability, it must be “durable.”

To create a Durable Power of Attorney, the document must clearly state that it is durable. You can then use that document to act as a safety net in the event that you are incapacitated.

There are two basic types of Durable POAs: one for financial matters and one for healthcare.

The Financial Durable POA allows someone of your choosing to handle your financial affairs when you’re not able to do so yourself. They can pay your bills for example, transfer money to and from your checking and savings accounts, and discuss payment plans with your creditors.

A Healthcare Durable POA on the other hand, is designed to designate an agent to speak on your behalf regarding medical treatments. This person will have the authority to accept or decline medical procedures on your behalf when you can no longer speak for yourself.

This is important if you have opinions about using life support methods such as feedings tubes and respirators. Without a Healthcare Power of Attorney, also often called an Advanced Healthcare Directive, the decision will be left up to your family members and in their grief-stricken state, they may or may not make the choice you want.

To learn more about Powers of Attorney and incapacity planning, call our office today.

The Alpern Law Firm is a member of the American Academy of Estate Planning Attorneys.