Meeting with an attorney discuss estate planning and disability planning can be emotional. I have had clients break down crying at the fear of death or an inability to make their decisions even though both are likely years and years away. Still, having a Will, Durable Power of Attorney and Health Care Power of Attorney are important documents to make sure that a client is taken care and controls what happens to both them and their property when events happen that imperils their lives. Prior to the first meeting with here is an idea of the types of things that you and your attorney (hopefully me!) will be discussing…
Health Care Power of Attorney – This document designates the person the Client would like to make health care decisions on their behalf in the event they are incapable of making their own decisions as determined by their regular or attending doctor in any given circumstance. This document also states the Client’s desires as to what should happen if he/she is left in a comatose state with no mental activity and no reasonable expectation of recovery to a “normal” life. A Client may choose to be allowed to die without life prolonging measures, to remain alive for some period of time and then have life prolonging measures withdrawn or be kept alive until their death with life prolonging measures. This document will also designate whether a Client desires artificial food and water (Living Will Declaration) but the Client will make that election when the documents are signed.
General Power of Attorney – This document designates the person the Client would like to make financial decisions on their behalf in the event they are incapable of doing so due to mental incapacity. This document becomes effective immediately and I generally recommend that the copies of these documents remain in my office until needed by the designated person. This document also suggests a guardian for the Court to consider in the event a Guardianship becomes necessary.
Will – This document instructs what is to happen to the Client’s personal belongings, business interests, real estate, money etc upon his/her death. This document also designates who the Client desires to have custody of his/her children, if minors, at the time of death. The Attorney will need to know the client’s desires as follows:
1) Who will be in charge of the Will (i.e. the Executor)? This person is generally compensated and responsible for filing the appropriate court documents to open and seek approval of the Client’s estate distribution. Often this person will employ an attorney to aid in this process. The Executor will be responsible to handle and address any tax issues in the estate and carrying out all provisions in the Will. I also suggest that a backup person be selected in the event the first person selected dies before the Client or is unable or incapable of performing the Executor functions.
2) Are there any specific desires for specific items in their possession that they would like to go to a specific person, business or charity upon their death. Examples of such items are engagement/wedding rings (often left to the first born daughter) and war medals (often left to the first born son) but ANYTHING, however minor or major, may be specifically given to a specific person. If the person dies, these items would go to that person’s heirs unless the Client directs otherwise.
3) I need to know who the Client wants his/her stuff to go to upon their death after payment of fees/taxes/expenses associated with the death and in what manner the stuff should go to those people (specific dollar amounts vs. percentages of the estate value). If the person dies, these items would go to that person’s heirs unless the Client directs otherwise.
4) If the Client has minor children or other beneficiaries that may not be old enough to handle the Client’s money, I recommend that any items that the child would receive before a certain age designated by the Client be left in a trust. In this case, the Client needs to select a Trustee that is someone they trust to manage the money/items left to the child/beneficiary for the child’s/beneficiary’s benefit and in accordance with the Client’s wishes. The Trustee does not have to be the person that would take care of the child on a day to day basis although there are reasons that this might make sense and reasons that it might not. I often suggest the Trust allow payment by the Trustee for specific items such as educational needs for the child. The Client may select the age in which the Trustee is to pay to the child/beneficiary the value of the trust and may split this out over a number of years (for example 25% at the age of 25, 25% at the age of 30 and the balance at the age of 35) which prevents the child from choosing not to work because of the inheritance windfall or to spend all the money, potentially frivolously, at one time. The trust may also limit the use of the money or place limitations/requirements on the child/beneficiary to get the money so long as they are reasonable and not socially unconscionable. Limitations may only exist for a period of generally about 125 years (this is a very complicated calculation but not generally pertinent unless the Client desires to leave money for grandchildren or Great grandchildren not yet born). I also suggest that a backup person be selected in the event the first person selected dies before the Client or is unable or incapable of performing the Trustee functions.
5) The Client may want to designate specific burial requests although I cannot guarantee they will be known unless I am contacted related to the Will at the time of their death and before funeral arrangements are made. Still, the Executor may have the Will and know the direction contained therein. Examples are requests that a Client be cremated, buried with certain items, receive a military burial (if appropriate) or even set out desires for how the funeral/showing should be set up and work.
If there are specific questions then the attorney can address these with the Client during the planning meeting or telephone conference or by email. If there are questions I can answer or if you need your estate documents prepared, please give us a call at 317-429-0210 or drop us an email at firstname.lastname@example.org
Jason P. Wischmeyer, P.O. Box 419, Shelbyville, IN 46176
Phone: 317-429-0210 Fax: 317-429-0211 Email: email@example.com