Yes, Virgina-You Do Need Legal Planning Documents
“I’m Not Wealthy – Do I Really Need Legal Documents?” Yes Virginia You Do.
Do you feel that you do not have enough assets to justify making a Last Will & Testament, Durable Power of Attorney or Designation of Health Care Surrogate? You are not alone, and nothing could be further from the truth.
Wealth, like beauty, is in the eye of the beholder. Everyone’s life and family circumstances are unique so your plan should be tailored to you. No matter how small or large your financial worth, be responsible to plan ahead so that your family can have the comfort that only peace of mind can deliver. Here is my top ten list of why everyone needs legal documents regardless of their level of wealth, age, or gender:
Stephanie’s Top Ten Reasons for Creating a Future Plan
- Parents Cannot Make Decisions for Adult Children: Everyone at age 18 is an adult and by law and can make their own decisions (even if we think our children are immature or, fiscally irresponsible). Parents cannot make decisions for their ill adult children (including children away at college) without a Durable Power of Attorney or Designation of Health Care Surrogate.
- Spouses Cannot Automatically Make Decisions for Their Spouse: Because we each have legal rights under state and federal laws, being married does not mean our spouse or partner can make decisions for us when we are incapacitated. A spouse may own assets that by law cannot name the other spouse as an owner such as an I.R.A., 401(k) or other retirement investment. If a spouse is named a beneficiary on an asset that person has no right to access that account while the owner is alive. This can present a problem if the assets are needed to care for the incapacitated spouse. A Durable Power of Attorney can be very beneficial to allow the well spouse to make financial decisions for the incapacitated spouse.
- The Medical Privacy Law: HIPAA is the medical privacy law. It prevents a school or healthcare provider from releasing information to someone other than the patient unless authorized by the patient. That is the reason why the hospital that treated the injured Virginia tech college students after the shooting refused to provide information to parents.
- Avoid a Court Supervised Guardianship: Once a person lacks mental capacity it is too late for them to sign a Durable Power of Attorney or Designation of Health Care Surrogate. The option of last resort will be a guardianship. The incapacitated individual will face the loss of their privacy, and the time and expense associated with having a guardian appointed. The Court and the attorney for the Guardian will continue to supervise the Guardian until the incapacitated person dies. A financial institution is not going to permit a family member to access an account regardless of how small the value of that account may be.
- Avoid the Media: If Terry Schiavo had legal documents in place naming a medical advocate and expressing her preferences for end-of-life care it could have avoided the battle that ensued in the Court for many years between her husband and her parents. It also could have prevented the emotional turmoil experienced by her family as a result of the media making her life a forum for a hotly debated ethical issue.
- Maintaining Family Harmony: If a person does not have a Designation of Health Care Surrogate then the Florida Health Care Proxy law provides that all children must agree on medical decisions. This can be a problem if children have differing views of what is in the parent’s best interests. A hospital or, doctor will not place themselves in a position to risk liability if all the proxies cannot agree on the course of action to be taken. By having a Designation of Health Care Surrogate the healthcare providers are only required to honor the decisions made by the surrogate.
- Making An Investment In Your Future: The cost of preparing an estate and incapacity plan is far less expensive than the cost of a guardianship which, after several years, can cost tens of thousands of dollars. What is the value of your peace of mind? Like the Mastercard commercial said ‘priceless.’
- Special Needs Planning: You can be generous and leave an inheritance for a family member with special needs without disrupting that person’s entitlement to government benefits. The proper way to plan is by creating a special needs trust either in your Will or Revocable Trust. If you don’t plan ahead and designate that relative in your Will or as a beneficiary on the asset they will lose their government benefits. It would also be a shame to disinherit that family member when they could have a better quality of life due to your properly planned generosity.
- Avoiding Multiple Probates: It is not uncommon for families to assume that property will automatically be distributed to them upon the death of the owner without involvement of a Court. While a Will may designate the beneficiaries to receive the property the mechanism to transfer the ownership is the Court. If you own real estate in multiple states consider a revocable trust in order to avoid multiple probate proceedings in order for your family to receive the property.
- Just Do It: Facing the fear of mortality empowers you to be proactive and create the plan and life you desire.
If you’re still not convinced, consider these quotes: Thomas Jefferson said “Never put off for tomorrow what you can do today,” and Pablo Picasso said “Only put off until tomorrow what you are willing to die having left undone.”
At the Law Office of Stephanie L. Schneider PA, we guide you through the estate and incapacity planning maze, so that you leave nothing left undone, and your family will have peace of mind.