What estate planning documents do I really need to protect my family and myself? Even though Virginia’s laws governing wills, estates, and fiduciaries allow for many things to be accomplished without the intervention of the courts, part of proper estate planning involves creating documents which are useful during your lifetime as well as an effectively drawn will that can simplify the task of the person handling the affairs of an estate.
An Up-to-date Will
A will passes your property at your death. It can be revoked or changed any time before you die. A will only becomes effective at your death, when it is filed for record, with the appropriate Virginia Circuit Court Clerk. If prepared properly, with good professional counsel, your will can effectively pass property to your loved ones in a way that is helpful rather than harmful to them. Without a will, Virginia statutes will dictate what happens to your property at death. A will can also be used to help determine who will raise and provide for children under age 18, when their parents are no longer living.
A will must be signed with very strict formalities, or it may be of no effect. An experienced attorney best carries out execution of the will.
A General (Durable) Power of Attorney
A general power of attorney (POA) delegates power to another person to handle your financial matters while you are living. It expires when you do, unlike a will, which only becomes effective after death. If you became disabled, either temporarily or permanently, a will does not serve you as would a POA. No one has power to handle your financial accounts unless that person is a joint account holder. If you own real estate with another person, including a spouse, the property cannot be sold or refinanced if either owner is unable or unavailable to act. Anyone, young or old, could become incapacitated at any time. Without a POA, an expensive, time-consuming court-supervised conservatorship is necessary to deal with property matters. A POA allows you, not the court, to keep control and keep the lights on and the bills paid.
We often refer to a POA as “durable” when it contains provisions that the grant of authority does not terminate upon a subsequent disability of the person granting the power.
An Advance Directive for Health Care
Having an advanced health directive (a document that usually incorporates language commonly referred to as a “living will”) allows you to name a Healthcare Agent to make medical decisions for you if you are not able to do so. The document should also give your agent access to your medical records and allow your treating physicians and agent to discuss your health issues; powers which are not readily available because of state and federal (HIPAA) privacy laws. You can also make your wishes clear about special concerns such as autopsy, organ donation, and life support. It is literally a matter of life and death. Do not neglect this crucial area.
According to Consumer Reports only 7 percent of those persons ages 18 to 29 have an advance directive. At age 18, a child is an adult for purposes of medical decision-making. Unanticipated tragedy can strike, even those ages 18 to 29. If you have a child in that age range, suggest that he or she sign an advance directive for health care with appropriate HIPAA releases and designation of a Healthcare Agent.