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Every person’s estate planning situation and needs are different. Nonetheless, there
are some similarities. Most estate plans start with the selection of either a Will or a
revocable trust (sometimes called a “living trust”) as the main transfer vehicle. Either a
Will or a revocable trust forms the centerpiece or cornerstone of the estate plan.
Beyond those documents, there are a number of other documents which should be
included in any comprehensive estate plan. A comprehensive estate plan will usually
include the following documents, depending on the circumstances:
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• Will or Revocable Trust.
• Health Care Directive.
• Power of Attorney (for estate planning, property and financial matters).
• Nomination of Guardian (similar provisions are often included in a health care directive).
• Personal Property List.
(Your Will will allow you to give specific items of
personal property to specific people even if those gifts are not mentioned
in your Will. When you sign your Will, I will give you a blank form you can
use for this purpose. The advantage of the Personal Property List is that
you can prepare and change this list at your own convenience in the
privacy of your own home without having to rewrite your entire Will.)
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I would recommend and encourage you to include a health care directive and power of
attorney in your estate plan in addition to just a Will or revocable trust. Many people
minimize the need for these estate planning documents, or just do not appreciate the
need for them at all. Your Will or revocable trust will provide for the transfer of your
property after your death. But neither of these documents is intended to, or can, take
the place of a health care directive or power of attorney. Both a Will or a revocable trust
should be supplemented with a health care directive and a power of attorney.
A Health Care Directive is your written statement of your instructions to direct your
health care providers, others assisting with your health care and your family members.
Your health care instructions can include your statement of your values, preferences,
guidelines and directions regarding your health care. Your Health Care Directive can
also include your appointment of a health care agent who can make health care
decisions on your behalf when you are unable to make health care decisions for
yourself.
There is not a default health care agent for a person who has not signed a valid and
effective health care directive. No one is automatically your health care agent, not even
your spouse if you are married. You must make a health care directive in order to have someone appointed to serve as your health care agent to make health care decisions
on your behalf when you are unable to make health care decisions for yourself.
A power of attorney allows you (the principal) to appoint someone (called the attorney-in-fact) to serve as your agent to handle your legal and financial affairs, particularly if
you become incapacitated or incompetent, and lists the powers that you give to your
attorney-in-fact.
No one is automatically your attorney-in-fact, not even your spouse if you are married.
You must make a power of attorney in order to have someone appointed to serve as your agent to handle your legal and financial affairs if you become incapacitated or
incompetent.
A power of attorney can be either durable or nondurable. In an estate planning context,
a power of attorney usually should be durable. A non-durable power of attorney is
automatically revoked if you become incapacitated or incompetent. A durable power of
attorney will not automatically be revoked if you become incapacitated or incompetent
but instead will remain in force until your death. A durable power of attorney will also
remain in force after the appointment of a conservator for you, unless the conservator
expressly revokes the power of attorney. All powers of attorney, durable or non
durable, terminate upon your death.
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