Wednesday, February 09, 2011

Do I Really Need to See an Estate Planning Attorney?

Nobody likes to think about his or her final days.  It is natural to procrastinate and find excuses to put off making decisions about what you want to happen at the end of your life.  But the reality is that those days can sneak up on you or could happen suddenly, without notice.  When a person puts off dealing with his or her end-of-life decisions it can cause headache and heartache for his or her loved ones.  This is why it is important for you to have a plan and the necessary documents in place before anything unfortunate happens.

The Will: How do I make sure the right people get my property after I die?

If you pass away without a valid will, then Michigan (and most other states) have statutes that govern the distribution of your estate.  A large portion (sometimes the your entire estate) will pass to your surviving spouse if you have one.  The statutes also contain provisions to pass your estate evenly to your children or their children in the unfortunate event that your children pass away before you do.  If you have no spouse or children then the statute distributes your estate to your parents, siblings, nieces and nephews, and so on, and eventually, the State of Michigan.  For some people, this is what they want, but usually there is some family heirloom, some charitable donation, or even just some special piece of personal property that you want to specifically control who receives it.

An Estate Attorney can help you figure out just what documents are necessary to give the people and organizations exactly what you want out of your estate.  He or she can help you to draft a will that will govern part or all of the distribution of your estate.  Think of a will as your final instructions for what to do with your property.  It can be used to give specific items to specific people, make monetary contributions to organizations or individuals, or even give a blanket gift to one or more people.  A will can also be used to designate guardians for your minor children or long-lived pets should something happen to you.  The general rule for all attorneys in creating a will is “what does my client want?” so it is important to give careful consideration to what and how much you want to give to each person or organization.  It is equally important that you give your attorney a full and accurate description of your assets so that he or she can write a will that is effective and enforceable after you pass away.

The Trust: How can I make the most of my estate for my beneficiaries after I die?

Trusts are complicated legal devices that attorneys use to give you even more control over the distribution of your estate.  Trust law is very complex, so if you are considering a trust also consider seeing an attorney who specializes in trust law.  Trusts can be used to set money or property aside while you are still alive for the benefit of your family or friends.  They can also be established to provide for the care of a particular piece of real property, a particular person in your care, or a pet.  Trusts can even be used to hold money safe for young beneficiaries who may not be ready to make the kinds of decisions necessary when a person receives a large amount of money.  Most importantly, the use of a trust can avoid substantial estate taxes that can be imposed against your estate at the time of distribution (if your estate is large enough).  Talk to your attorney about the potential benefits and costs of including a trust in your over all estate plan.  He or she may have some ideas on how to make the most of what you want to give.

The Designation of Patient Advocate and Living Will: How do I control what happens to me in my final days?

Everyone hopes that they will remain healthy throughout their lives until they pass away quietly in their sleep.  Sadly, this is more and more often not the case.  Advances in medical technology have created longer and longer periods of time when the terminally ill are still alive, but not competent to make decisions for their own care.  It is not enough that a person be able to nod or shake his or her head.  For doctors to take the necessary steps to treat a person he or she must be able to give informed consent.  Often, the course of modern medicine requires difficult decisions to be made at a time when the patient is or close to incapable of making those decisions.  The question arises, how do you make sure the doctors do what you want them to do in you final days?

There are two kinds of documents that can assist in this element of estate planning: Living Wills and Designations of Patient Advocates.  A living will is a document that outlines your choices and preferences on end-of-life treatment and so-called “extraordinary measures” including resuscitation.  The extent to which a living will is honored in Michigan is not clear, so this document should be used carefully, and is best if used in conjunction with a Designation of Patient Advocate. 

A Designation of Patient Advocate names one or more persons to make medical decisions on your behalf when you are no longer capable of making them yourself.  The Patient Advocate has final say on the treatment of a patient who is no longer legally competent to give informed consent him or herself.  This includes the right to “pull the plug” or otherwise cease life-prolonging treatments.  Because these decisions are quite literally life and death, it is best to prepare a living will and otherwise give instructions that the Patient Advocate can use to guide him or her in deciding what it is you would have wanted if you were in a position to decide for yourself.

The Durable Power of Attorney: How do I make sure that my affairs are taken care of in my final days?

The Durable Power of Attorney is the most often overlooked of the estate planning documents.  Where the Designation of Patient Advocate names a person to make medical decisions for you, the Durable Power of Attorney is the document that allows another person to make all the other important decisions.  This includes everything from making your mortgage payment to paying for that expensive end-of-life medical treatment while you are in the hospital.  Remember, if you are legally incompetent, then your signature will not be enough to write checks or authorize payments for all those things that you pay for every day.  The Durable Power of Attorney gives another person the authority to enter into contractual agreements on your behalf, even if you are not able to enter them yourself.  That makes the Durable Power of Attorney an essential part of an estate plan that should not be omitted.

Estate planning takes time and careful forethought into your wishes and the best ways to carry them out.  While it is possible to go it alone and rely on state statutes, an Estate Attorney can help you to take control of your affairs and make sure that what you want happens both in your final days and after you have passed away.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have questions related to a Probate Law matter such as an estate plan.