Many people, young and old alike, do not like discussing planning for a time when either they cannot take care of themselves or when they pass away. We hope that by creating a homelike atmosphere it helps our clients put their minds at ease and opens those dialogues. There are three main documents involved in Estate Planning. Two of them are to be used while the client is still alive, but for various reasons is unable to take care of themselves either physically or financially, and the third is activated upon the passing of the client.
A Power of Attorney for Property (“Property”) allows the client to decide who will manage all aspects of the client’s financial affairs (the “Attorney”). There are of course limitations and/or restrictions attached. We discuss the types of limitations and/or restrictions with our clients when we are assisting them with planning for their needs and wishes.
A Power of Attorney for Personal Care (“Personal Care”) allows the client to decide who will make medical decisions when the client is incapable of making these decisions for themselves. Circumstances where a Personal Care could be used include an incapacitating injury/accident or a progressive disease that affects the client’s ability to make sound health care decisions. Personal Care is not an automatic right for the attorney to make medical decisions for the client, the client must be accessed by a competent assessor to be deemed incapable of making sound decisions. It is very important that the client be fully aware of his/her right under either the Property or Personal Care documents and that we explain all the advantages and pitfalls with each of the documents.
The Last Will and Testament (the “Will”) is the document that governs the client’s property after they pass away. At the time of death, if there were Property and Personal Care documents in existence, they are no longer in effect. The role of managing the deceased’s property now falls to the Trustee/Executor as named in the Will. There is no requirement that the client name the same people to manage things while alive as after death. Those decisions are completely within the client’s discretion.