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Estate Planning

ESTATE PLANNING is more than just the writing of a Will.  An Estate includes assets such as cash, bank accounts, stocks and bonds, real estate, jewelry, etc. Estate planning is the making of a master plan to conserve assets before and after death, distribute property according to individual’s wishes, minimize state and federal estate taxes, provide for the family’s financial needs.  This process can include the use of Powers of Attorney documents, Wills, Trusts, Deeds, Guardianships, Life Insurances and Gifts.

What A Will Can Do For You

A Will is the legal document that gives the court directions as to how to distribute what you own after your death, who is to distribute it, who you choose to care for your children or other loved ones, and more.

You can make sure that your property is distributed to the people you choose, in the amounts you specify. It can help you eliminate some or all of the taxes that are associated with your estate, and avoid some family disagreements during the distribution process.

If you have young children, or a child with disabilities, your Will gives you the chance to protect them after you are gone. You can name someone (a Guardian) to take care of their needs after you’re gone. This may be one of the most difficult decisions you can make, but if you don’t, then the court will appoint someone they see fit as a guardian.

A Will also allows you to choose the person who will oversee this process on your behalf. (Your Executor) The Executor’s job can be difficult. If you don’t choose an Executor, or if your Will names only one Executor and he or she is not able to act for you, then the court will appoint someone of its choosing to perform this job.

Your Will has to be proved to be valid after your death. To do this, it has to be filed with the Register of Wills in the county you resided in at the time of your death, by your Executor. The Register of Wills will then give your Executor documents called short certificates, that authorized him or her to do all of the things necessary to administer your estate.

Be aware that not everything that you own at the time of your death will pass by the provisions you have set forth in your Will. Only those things that are in your name alone at that time will be subject to your Will. Other assets, such as joint bank accounts, or deeds for property that have the right of survivorship will automatically pass to the other owner or owners named. Some accounts will pass by beneficiary designations.

If you have no Will when you die, your estate will be distributed according to the laws of the state that you live in.

Power of Attorney Documents

A Power of Attorney document is perhaps the most important document a person can have. A Power of Attorney document allows an individual, called the “principal” to set out guidelines for another person or persons, the “agent” to be able to do certain things for the principal if he or she is not able.

— A Financial Power of Attorney document authorizes another person, or persons that you name, to complete financial transactions on your behalf. You authorize in the document only those powers you wish your agent to have. These most commonly include banking and bill paying powers, and the ability to make business transactions, and apply for government benefits. The agent must only complete transactions that are in your best interest.

— A Healthcare Power of Attorney document allows another person, or persons that you name, to be able to make basic healthcare decisions for you, or make inquiries about your healthcare, including talking to your doctor or asking about medication issues. With the HIPPA regulations, this is becoming more and more important, since there is no automatic right to make decisions for someone just because you’re married.

Sometimes a document will contain both financial and healthcare powers in the same document.

A person can make a Power of Attorney document if he or she is competent, meaning the individual understands what he or she is signing at that time.

In Pennsylvania, all documents are considered to be durable, which means that the person or persons named as an agent in the document can act when the principal is not competent, unless the document states otherwise.

There are certain things you should take into account when deciding how your Power of Attorney document should be completed: You need to have someone that you trust named as agent. You should decide whether you want to have one, or more than one agent. You should have a backup agent, just in case the first person can’t act for you.

A Power of Attorney document is a voluntary document. Your agent can’t force you to do anything you don’t want to do. You may remove, or fire an agent at any time, by notifying the agent that he or she now longer has power to act.

A Power of Attorney Document “dies with you.” Your agent has no power under this document after you pass away.

— An Advanced Directive (some people think of this as a Living Will, which is similar) This document allows you to make your wishes known as to end of life decisions, should you become terminally ill, be in a permanent coma, or persistent vegetative state. Decisions about what kinds of life sustaining measures are included in this type of document. These include but are not limited to; ventilators, feeding tubes, antibiotics, dialysis, blood and blood products. The most effective documents allow the agent to make these decisions according to what is happening at that time, not guessing in advance what kind of treatment they would or would not like to have.

Guardianship

This is an involuntary court proceeding that appoints a person or persons who can act on someone’s behalf if they do not have a Power of Attorney document and are not capable of making a new one. It is a costly process, and the family must prove to the court that their loved one is now incompetent and unable to make decisions for him or herself.

Guardianship

A guardian is someone who the court has appointed to make decisions on behalf of another person, because that person is unable to do so.  It is necessary when an individual can not make financial and/or healthcare decisions on his or her own, does not have a Power of Attorney document stating who should make those decisions if he or she is not able, and is not presently able to communicate who should make these decisions on his or her behalf.

Because there is no way of knowing who should now make decisions for an individual, who is considered incompetent, or no longer able to make decisions for himself, the court must appoint someone to take care of this person.  The process by which this is done is called a guardianship hearing.  The person who wants to take responsibility for the incapacitated person must file paperwork with the court stating why a guardianship is needed, and why they wish to be responsible for making the decisions while the individual is unable to do so.

There are two kinds of guardianship hearings; a plenary guardianship, which means that the guardian would be awarded the ability to make all of the decisions for the incapacitated individual, and a limited guardianship, which only allows the guardian to take over those things that the person is unable to do, such as handling finances.  The incapacitated individual would make all decisions that he or she is able to make under the limited guardianship.  In reality, the courts usually grant the plenary guardianships, even when a limited guardianship might be more appropriate, simply because the court does not want to have a new hearing in the near future when the incapacitated person is unable to make more decisions and now needs a total guardianship.

This process can be difficult, since it is an involuntary process, and often the incapacitated person does not believe that he or she needs assistance.  The potential guardian must tell the court why his or her loved one is no longer able to manage their lives.  Sometimes more than one person wishes to be the guardian, and the hearing decides who would be the best one to act for the incapacitated individual.  This is called a contested guardianship, and can divide families.  The guardianship process is also expensive, averaging $1,500 for an uncontested hearing, and much more if it is contested. 

Once appointed as guardian, that person must act in the way that is beneficial to the incapacitated person.  The guardian must keep an accounting of financial transactions, to be reported to the court, and see that health care decisions are made.  It is a difficult job, but necessary for the safety of the person who is no longer able to make good decisions for himself.

The only way to avoid the need for a guardianship proceeding is to have a Power of Attorney document drafted while you are able to make the decisions about who should take care of things for you while you are not able to do so.  This is very inexpensive and can save a lot of trouble for your loved ones if you become unable to handle your affairs in the future.