Do not try this at home!

April 17, 2012

Easter is past, spring is in the air, and most of us feel rejuvenation from the doldrums of winter. As we think about new life, budding plants, and growth, thoughts of death and incapacity move off. Since spring and summer are prime travel and move about times, however, they are often times when the lack of dispositive legal documents becomes an issue. Since these take awhile to prepare properly, now is a good time to start on them.
Many people believe that they do not need a Will, and, in some cases, they are correct. However, a Power of Attorney is something every adult should have. This is a document that allows a person you trust implicitly to take actions concerning your affairs. It is not necessary that you be incapacitated; for example, military couples use these to allow one spouse to sign tax returns, deal with investments and property while the other is deployed. In that instance, a good Power of Attorney is a convenience; in the event of an accident or illness rendering the person granting the powers unable to do business for even a limited period of time, it becomes invaluable. While a stroke or accident victim may eventually recover enough to handle his or her investments, home, bills, and other business, there is likely to be a time during which such decisions are beyond the victim’s abilities. Family members are faced with a choice. They can spend the money to obtain a guardianship, reducing the victim to the legal status of a child, and take over business affairs in that manner, or they can do nothing, leaving the victim to face penalties, discontinued services, and an assortment of legal problems on recovery. With a guardianship, legal fees will again be incurred to lift it should the victim regain the ability to manage affairs. A well drafted Power of Attorney, signed while the individual is undeniably competent, allows the designated person to carry on, until the person who has been temporarily incapacitated is able to take over again. Most Powers of Attorney allow for the designation of a principal “attorney in fact”, as well as a secondary one, should the first named be unable or unwilling to serve. These can cover everything from the intricacies of caring for a child to selling real property or the filing and settling of law suits, but does not cover the ability to make health care decisions.
Hand in hand with the Power of Attorney is the Durable Power of Attorney for Health Care. Anyone who has been admitted to a health care facility has been encouraged to sign one of these. The better practice, however, is to prepare one when there is ample time to read it, understand it, and select the people who will be making the decisions. This document will designate a person to work with the physician in making health care decisions if the patient is unable to do so. The gravity of the decision can range from the treatment choices for a broken hip to the use of various measures to extend life. By having the document prepared before a medical crisis exists, and taking the time to discuss desires and beliefs with the person designated to make the decisions (as well as with any alternate individuals who are designated to step in if the primary person is unable or unwilling to serve), the person signing the document can relax, knowing that things will be handled in the manner that he or she would prefer.
Powers of Attorney – of any variety – loose their power when the person who signed them dies. The person who held the Power of Attorney may or may not be involved in opening or settling the estate. He or she has no authority to pay bills, sign checks, or make decisions after the principal is dead. These documents are not substitutes for a well drafted Will.
Wills come in many forms, from extremely simple to highly complex. Any person who owns property should have a Will, if for no other reason than to simplify the transfer of it to the next person. At different times, a family may need different ones. When children are small, consideration must be given to who will raise them, and whether or not financial assistance will be given. Once the children are grown, many couples alter their Will, based in part on whether or not the children have married, the apparent stability of the marriage, and the presence or absence of grandchildren. Some individuals or couples have sufficient assets to justify a trust; most, however, do not. Between changes in the regulations of the Internal Revenue Service and state laws, there are several factors to consider when determining the type of Will or trust that is appropriate for a given situation. While most of these documents are available on the Internet, they are not accompanied by the advise of people who have taken the time to get to know you, your desires and specific situation. This is where your personal attorney comes in, often working with your accountant, to make a recommendation based on your intent. When it comes time for the Will to be used to dispose of assets, chances are that the attorney will still be available, and with that individual are the notes and recollections that will help settle disputes and problems before they become family rending issues.
Most of us are not ready to start major construction jobs without the aid of an expert, or the removal of a dead tree without someone who does that for a living. Personally, I wouldn’t try surgery on myself, nor am I ready to rewire my house having read a “how to” book. The documents described above will impact lives; let a professional write them!

Lisa Peterson is the County Attorney for Nolan County. Comments about this column may be e-mailed to editor@sweetwaterreporter.com.

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