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Where There's A Will – There's a Way: Core Estate Planning Documents

Most people think of Wills when they think of estate planning. However, the distribution of assets after death is only one issue to be considered. Perhaps more important is making sure that a person has access to his or her finances and good health care if sick and incapacitated. The basic documents of estate planning are the Will, the durable power of attorney and the health care power of attorney.

The Last Will and Testament is the written document that sets forth how a person wants their assets distributed upon death. A typewritten Will needs to have two witnesses, the witnesses need to swear to a specifically worded affidavit and the document needs to be notarized. Without these requirements, the Will will not be considered “self-proving” and a hearing will have to be held in court.

A Will can be self-proving if it is completely handwritten by the testator or testatrix (the man or woman who is writing the Will). A hand-written Will is called a holographic Will and will be acceptable as long as the material provisions are handwritten.

A durable power of attorney is a written document which names an agent, who is given authority to act on behalf of the principal (the person creating the power of attorney) in regard to finances and business decisions. An alternate agent should also be named in case the first agent cannot serve.

A financial power of attorney is “durable” if it remains in effect even if the principal becomes incapacitated. The principal can still revoke and change the power of attorney at any time, as long as the principal has capacity.

Unless the durable power of attorney is limited to a specific purpose or duty, the durable power of attorney must be signed before a witness who attests to the capacity and willingness of the principal. The signatures of the principal and the witness must be notarized.

A health care power of attorney allows a person to nominate an agent who can give consent to health care if the principal is unable to give consent. Usually an alternate agent is also nominated in case the first agent is not reachable.

For single persons, the health care power of attorney is very important in order for a significant other to be able to obtain proper health care. Married persons benefit from health care powers of attorney because it enlarges the types of health care that can be approved by a spouse or other family member. For example, mental health care can be included. Sometimes, long term illnesses can be accompanied with depression or temporary dementia. Such illnesses could not be treated without the inclusion of mental health care power in the health care power of attorney.

Also, under a recently enacted state law, you can now designate if you want to be cremated or buried in your health care power of attorney. Without such designation, your designated agent will not have authority to direct the mortuary of your wishes.