“I’m too young for these documents!” This statement was overheard recently at a Health Fair at one of the local senior centers. The statement caught me by surprise but also sparked a thought. When we, as lawyers, tell people to get their documents in order they do not understand why these specific documents are so important. From 18 to 118, everyone needs to have the following documents in order.
The documents that everyone, and I do mean everyone, should have in place are:
- General Durable Power of Attorney (finances)
- Health Care Power of Attorney
- Living Will
- Last Will and Testament.
With these four documents and the proper planning, most individuals will be able to make sure that they are covered for planning purposes.
It is important that these documents are executed for several reasons. First, by having power of attorney documents in place, an individual is less likely to require a guardian. If someone appoints a power of attorney (POA) while they are competent, then there will be someone to assist that individual should they be unable to act for themselves. I understand that the thought that you would ever become incompetent is terrifying and overwhelming, but planning for this type of situation will allow you to maintain a level of dignity you would otherwise be unable to have in place.
Another reason these documents are so important is to make it easier on your family, friends, and caregivers whom you have trusted to help you while you age. These documents give your POA the ability to act as if you would in the same circumstances. They can assist with banking, property management, and a variety of other tasks. These documents are not only drafted to put you at ease, but that also can put your loved ones at ease to know you have a plan in place.
Let’s take a look at some common misconceptions that clients or community members are asked questions about or relied on and made mistakes.
“I have a will and an executor so I do not need anyone else.” While having a Last Will and Testament is very helpful, this document will only come into play once a person has died. They still need to appoint a Power of Attorney to assist during life.
“My bank account is a joint account so everything will avoid probate.” While yes, a joint bank account can avoid probate, having the proper estate plan will make sure all assets that can avoid probate do just that. By putting another person’s name on your account may seem like a good idea for probate purposes, this can make your accounts very vulnerable to exploitation, abuse, creditor claims or other legal action involving the other owner. There are much easier ways to avoid probate with the help from an attorney.
“I do not have a lot of money, so probate will never happen.” Probate estates can be of all different sizes. Anything left in your name at the time of death, without a designated beneficiary or similar designation, will need to go through probate. The amount of the assets going through probate will determine the type of estate.
“If I have a Power of Attorney I lose all my rights to make decisions!” This is FALSE! You will be presumed to have the ability to make all of your own decisions until you are deemed incompetent. You can continue to make every decision you normally would after you appoint your POA. Appointing a POA will make it less likely to need a guardian and have court involvement.
Bethany A. Stickradt, Esq. is an associate attorney with the Kabb Law Firm in Beachwood, Ohio www.kabblaw.com