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A power of attorney ("POA") is a written document that authorizes another person, who is called your agent or attorney in fact, to perform acts on your behalf during your life. Death terminates a POA. A POA is a private arrangement that gives another person authority to make decisions for you. That authority can be as broad, narrow, general, or specific as you want it to be. In other words, you can authorize your attorney in fact to do many things for you, or you can limit the authority of your attorney in fact to only a few matters. Your POA can relate to only financial and property matters, or the POA can also contain personal care provisions. For example, a POA can give another person the authority to manage your business and investments, conduct banking transactions, employ advisors, buy and sell assets, file tax returns, deal with retirement plan benefits, nominate a guardian for you, and continue a program of gift giving, to name a few of the powers that you can give your attorney in fact.
Assuming that you do not need a POA if you are married is a common but dreadful estate planning mistake. If you are married, you do not automatically have legal authority to handle personal and financial matters for your spouse. A married person therefore needs a POA as much as a single person.
A POA that does not become ineffective if you become incapacitated is called a durable POA. The document must contain specific words to make it a durable POA. Thus, not all POA’s are durable POA’s.
You can design your POA so that your agent has authority to act upon your behalf (1) when you sign the POA, (2) only when your doctor decides that you are unable to make decisions for yourself, or (3) upon a certain date.
Because a POA is a private arrangement between you and another person, the probate court does not have to be involved. Thus, there are no accounts to file, no bond to post, and no ongoing attorney fees to pay. A general durable POA can be an inexpensive and easy way to avoid guardianship. Your estate plan would be incomplete without a general durable POA.
A private arrangement that can provide for the management of your property is a funded trust. There are many different types of trusts, such as living, testamentary, revocable, and irrevocable trusts. A testamentary trust is usually created in a will and becomes operative when you die. A trust that is set up separate from a will during a person's life is called a living trust. The most common and popular trust is the revocable living trust ("RLT"). (We limit our discussion of trusts here to RLT's.) An RLT is created by signing a written document called a trust agreement. The RLT is funded by transferring ownership of property to the trustee of the RLT. No minimum amount of money or property is required to set up an RLT.
The trustee is the owner and manager of the trust fund. Generally, the trustee is responsible for investing the trust assets, collecting the trust income, distributing funds to beneficiaries, and other administrative duties. A person or financial institution can serve as the trustee. Most people act as their own trustee and then designate successor persons or a financial institution to take over as trustee when they are no longer able to serve as their own trustee.
Having an RLT is particularly useful when you have transferred all of your property to your RLT, because if you become incapacitated, your trustee can just continue managing your trust property for you. Your trustee would not, however, have authority over any of your property that was not put into your RLT.
An RLT is called revocable because you have the power to change or terminate the trust during your life. It is called a living trust because it is established and becomes active during your life, as opposed to some trusts that become active only upon your death.
Generally, an RLT is involved in managing only your property. Therefore, we recommend that if you set up an RLT to manage your property, you also give someone POA’s to manage your personal affairs and health care if you become incapacitated.
A significant difference between RLT’s, guardianships, and POA’s is that RLT’s generally do not end when you die, while guardianships and POA’s do. An attractive feature of the RLT is that the property in the RLT does not need to go through probate after your death. We mention avoiding probate now to point out that an RLT can serve the dual purpose of managing your property both before and after your death.
We charge by the hour for these services, rather than the traditional approach of using a court approved fee guideline that calculate the Attorney fees as a percentage of the estate assets.
The Roberson approach means that we are compensated based on the time our experienced staff spends working with the estate. This method almost always results in substantial savings to the estate, allowing more of the assets to be shared by the loved ones'.
For those who are disabled or too ill to meet with us in our office, we are willing to meet with you and/or your loved in your home, hospital, or other facility.
Please call our office to discuss your situation and needs.
Our experience suggests that no more than five (5) years should pass without a careful review of your estate planning documents. You should especially review your estate plan whenever (1) the value of your assets has significantly increased (beyond $2 million) or decreased; (2) the needs of your beneficiaries change; (3) the tax laws are modified; (4) your personal circumstances have changed, such as a birth, death, or marriage; or (5) you move to another state.
If your circumstances do change or you have any questions, one of our attorneys will be happy to meet with you to review your situation.
Most people would prefer not to think about the possibility of a life or death decision having to be made for them if they are in a terminal condition or permanently unconscious state, but putting those closest to us in the unfortunate position of lacking the knowledge or authority to make such a decision would be far worse. In addition, the extent of your health care can have a significant impact upon your financial resources. Therefore, health care directives are an essential part of a complete estate plan. A health care directive is a written document containing your wishes about your health care. Ohio law has created several kinds of health care directives; this article discusses those and some others.
A living will is a written document in which you declare your intentions regarding the use of life sustaining treatment if you are terminal or permanently unconscious. A living will usually directs that life-sustaining medical treatment be withheld or withdrawn if a you are unable to make informed medical decisions and are terminal or permanently unconscious.
A health care power of attorney is a written document that authorizes another person to make health care decisions for you when you are unable to make them for yourself. The scope of the health care power of attorney is much broader than that of the living will because the health care power of attorney permits the authorization of medical treatment in situations other than terminal conditions and permanently unconscious states.
A Do Not Resuscitate ("DNR") order means CPR is not administered. A DNR order must be issued by a physician and is not self-executing by means of any patient document. DNR identification is a card, form, or patient document, necklace, or bracelet and signifies either (1) the person has an operative living will authorizing withholding of CPR or (2) a physician has issued a DNR order.
The Authorization to Disclose Protected Health Information ("HIPAA") form is a written document designed to protect your personal health information. With this form, you can declare which persons are authorized to receive your relevant medical information at any time. This authorization can help those designated within your health care power of attorney to make informed decisions regarding your heath care. Without this authorization, your agent may be denied access to important information concerning your health.
The advance medical directive form is a written document that allows you to specifically delineate your wishes regarding the use of life-sustaining medical treatment if you become unable to make such decisions for yourself. This form provides the opportunity to choose or reject specific treatments–thus enabling you to narrowly define any general decisions made in your living will. While your doctor will not use this form to make medical decisions against his or her professional opinion, the form can help your doctor and agent understand your wishes in complicated situations.
It is recommended that you have health care directives and not include health care provisions in your general durable POA. First, most people do not want their desires with respect to various forms of health care to gain the exposure that is often required with a general durable POA. Second, you may want a different person to make health care decisions for you than the person who takes care of your financial matters. Third, a busy doctor may not have time to read through a lengthy document before making a critical decision about your health care.
The standard forms for each health care directive are available through Roberson Law. Roberson Law will gladly customize your health care directives if the standard forms do not properly reflect your wishes; however, it is encouraged you to use the standard forms if they do reflect your values because these forms will be easily recognized by health care providers, avoid any delays caused by interpreting personalized documents, and reduce legal fees.
These documents are an aid to understanding your choices if you become incompetent; they should be used to supplement, not replace, communication among you, your family, and your physicians. You should discuss your wishes about your health care with your family and doctors and give each of your doctors a copy of each of your health care directives.
A will is a written document in which you designate how you want your property and personal affairs to be handled after you die. Your will has no legal effect until you die. In your will, you name who you want to (1) receive your property, (2) care for your children if they are minors or incapacitated when you die, and (3) serve as executor--the person who is responsible for seeing that all of the matters involved in settling your estate are properly handled. You can also include in your will a statement of your spiritual beliefs, values, and other personal sentiments that may comfort and encourage your loved ones after your death.
To be valid, your will must be a written document that you have signed at the end of the document in the presence of at least two witnesses. Therefore, oral promises, unwitnessed letters, and names taped onto objects do not have any legal effect. Your witnesses should not be related to you or named in your will in any way, such as beneficiary, guardian of minor children, or executor. You must be of sound mind and not acting under any restraint when you sign your will. Sound mind means that you are able to understand what you are doing. Not acting under any restraint means that you are signing your will freely and voluntarily because you want to, not because anyone or anything is making you sign your will.
If you already have a will and want to change or revoke it, please talk to your lawyer about how you should do that because you cannot just change your will by writing on it. Changes have to be made in a very special way, just like signing your will. The same goes for revoking your will. If you have a will, don't like it, and don't want it anymore, please call your lawyer about how to revoke your will.
If you are married, both you and your spouse each need a separate will.
If you die without a will, the state has written one for you by what is called the law of descent and distribution. There are other important reasons why you still need a will, such as appointing your executor and guardian for your minor children and dispensing with bond for these persons, which can be quite costly.