Estate Planning is the process of organizing your personal and business affairs in the case of incapacity of death so that your wishes are recorded and preserved. An experienced estate planning attorney prepares and executes advance directives, including a Last Will and Testament, Power of Attorney, Health Care Proxy, and Trust document. These legal documents provide you and your family with peace of mind and ensure that your chosen beneficiaries inherit your assets.
What does an estate planning attorney do?
An estate planning attorney meets with you to prepare Advanced directives (Health Care Proxy, Power of Attorney, Last Will and Testament, and Trust) to give you and your family peace of mind. The execution of these documents provides for estate planning which leads to less expensive and simpler estate administration. Estate planning protects your personal and business assets in case of incapacity or death and insures that your beneficiaries inherit your assets. This is especially important in the case of later marriages, blended families, potential beneficiaries who receive financial government assistance, and whenever a testator wants to disinherit a family member or provide financially for a non-family member.
What happens to a durable power of attorney when someone becomes incapacitated or dies?
A New York State durable power of attorney remains in force even after the principal (the person who executes (signs) the power) becomes mentally incapacitated. Physical incapacitation does not affect a power of attorney or other legal document in any way. The power requires that the principal be alive at the time of its use by the agent. Once the principal dies, the power of attorney is no longer valid.
What is a Health Care Proxy?
This legal document allows an agent to make health care decisions for you if you are not able to do so yourself. Therefore, if you can communicate your own health care decisions to doctors and hospital staff, you will be the only one to make decisions affecting your healthcare and no one else would be empowered to act in your place. If you cannot understand or communicate your health care wishes, your agent is empowered to make those decisions as you would make them if you could. It is best for you to discuss your end of life wishes with your proposed agent, so that you know in advance that your agent will respect and follow your desires. In the Health Care Proxy, you express your wishes as to burial/cremation, organ donations, and other specific instructions you have.
What is a Power of Attorney?
A Power of Attorney (POA) is a legal document which is valid while you (the principal) are alive. It grants an agent-in-fact the power to make all decisions other than those which relate to health care (e.g. financial, business, etc.) Unlike the health care proxy, the POA is effective as soon as it is executed. It is very important that you trust the agent as the agent could empty all bank accounts, sell real estate, etc. immediately upon execution of the POA. Note that in New York State, the agent(s) and any successor agents must sign the POA accepting the agency. Also, the agent cannot delegate his or her role and could be held responsible for handling your affairs while you are alive.
What is a Last Will and Testament?
A Last Will and Testament (called such because the effective Will is the last Will the testator makes before his or her death) is an essential estate planning document. It sets forth how you wish your assets to be distributed after your death. The executor is the fiduciary you name to marshal all assets of the estate, pay debts, and distribute the remainder to the beneficiaries. This document is enforceable after the testator dies (i.e. becomes the decedent) and estate affairs need to be handled.