Providing for Incapacity
In order to protect yourself and your estate If you become temporarily or permanently incapacitated, you must have the proper legal documents assigning someone to act
on your behalf. Many people are under the mistaken impression that their spouse or adult children can automatically take over for them in the event that they become incapacitated. The
truth is, if you want your family to be able to make health care decisions for you or handle your finances, you must designate a person or persons that you trust in a Health Care Directive and a
Financial Durable Power of Attorney. The Health Care Directive allows your designated person (or people) to make medical decisions on your behalf. The Financial Durable Power of Attorney
allows your designated person (or people) the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, etc. Without the Power of Attorney
documents, in order for others to be able to manage critical health care decisions or your finances, they must petition a court to declare you legally incompetent and apply for guardianship.
This process can be lengthy, costly and stressful. Even if the court appoints the person you would have chosen, the court will likely require a conservatorship and your guardian would then have
to report back to the court every year to show how they are spending and investing each and every penny from your Estate.
In addition to a Health Care Directive, you should also have a living will which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.
With proper estate planning, your assets can pass on to your loved ones without undergoing probate in a manner that is quick, inexpensive and private. If you leave your estate to your loved ones using a will, everything you own will pass through probate. The process is expensive, time-consuming and open to the public. The probate court is in control of the process until the estate has been settled and distributed. If you are married and have children, you want to make certain that your surviving family has immediate access to cash to pay for living expenses while your estate is being settled. It is not unusual for the probate courts to freeze assets for weeks or even months while trying to determine the proper disposition of the estate. Your surviving spouse may be forced to apply to the probate court for needed cash to pay current living expenses. You can imagine how stressful this process can be.
Providing for Minor Children
It is important that your estate plan address issues regarding the upbringing of your children. If your children are young, you may want to consider implementing a plan that will allow your surviving spouse to devote more attention to your children, without the burden of work obligations. You may also want to provide for special counseling and resources for your spouse if you believe they lack the experience or ability to handle financial and legal matters. You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously, or within a short duration of time. A contingency plan should provide for persons you’d like to manage your assets as well as the guardian you’d like to nominate for the upbringing of your children. The person, or trustee in charge of the finances need not be the same person as the guardian. In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances. Otherwise, the decision as to who will manage your finances and raise your children will be left to a court of law. Even if you are lucky enough to have the person or persons you would have wanted selected by the court, they may have undue burdens and restrictions placed on them by the court, such as having to provide annual accounting.