At Berry & McGehee, PLLC we recognize that each family is unique. We customize our client’s estate plan to fit their individual and family needs. First and foremost, we strongly encourage our clients to first cover their basic needs – which includes several documents that they need during their lifetimes. The most basic of these documents are a general durable (financial) power of attorney, a power of attorney for health care, and a living will directive. Each of these is discussed in turn.
General and Durable Financial Power of Attorney:
A power of attorney is a document by which one person, called the “principal,” appoints another person, called “attorney-in-fact” or “agent,” to transact financial, legal, business or other matters for the principal. A financial power of attorney allows you to choose who you want to handle your financial, legal and business matters when you are unable to do so yourself.
A general, durable power of attorney helps you avoid a guardianship proceeding at some point later in your life. If you do not have a financial power of attorney, then a guardianship proceeding will likely have to be initiated in order to manage your financial, legal and business affairs. This requires that a petition be filed for the appointment of a guardian; that a panel consisting of a medical doctor, a psychologist and a social worker be appointed by the Court for the purpose of evaluating incapacity; that an attorney be appointed to represent your interests, and that a six-person jury make a determination of incapacity or capacity after a trial. It also requires the guardian to file certain reports and accountings with the court on an annual or bi-annual basis. It is emotionally draining, both for the incapacitated person who may be cognizant of what is going on, and for the family who has no choice but to have their loved one be declared legally incompetent.
Power of Attorney for Health Care:
Powers of Attorney for Health Care are very similar to financial powers of attorney, but in a power of attorney for health care, the principal allows his or her appointed agent to make health care decisions for the principal when he or she is unable to do so.
Much like a financial power of attorney, a power of attorney for health care allows you to choose who you want to make health care decisions when you are unable to do so yourself; and helps you avoid a guardianship proceeding.
The Power of attorney should name your agent as your personal representative for purposes of the HIPAA, so that your agent can access your protected health information, and exercise your rights under the HIPAA rule.
Your medical power of attorney should address the scope of the health-care decision-making power you are giving your agent.
Your medical power of attorney should address whether your agent has authority to make anatomical gifts.
Your medical power of attorney should address whether your agent has authority to make decision regarding life-prolonging treatment and artificially-provided fluid and nutrition (or alternatively, whether this is mandated in a living will directive).
Living Will Directive:
A living will directive allows you to choose in advance whether you want life prolonging treatment (such as a ventilator) and artificially-provided nutrition and fluids (such as feeding tubes) if you no longer have decisional capacity and you have a terminal condition or have become permanently unconscious.
You do not have “decisional capacity” if you don’t have the ability to make and communicate a health care decision.
You have a “terminal condition” if you have a condition caused by injury, disease, or illness which, to a reasonable degree of medical probability, as determined solely by the patient’s attending physician and one other physician, is incurable and irreversible and will result in death in a relatively short time, and where the application of life-prolonging treatment would serve only to artificially prolong the dying process.
You are “permanently unconscious” if you have a condition which, to a reasonable degree of medical probability, as determined solely by the patient’s attending physician and one other physician on clinical examination, is characterized by an absence of cerebral cortical functions indicative of consciousness or behavioral interaction with the environment.
You can mandate the withholding or withdrawal of life-prolonging treatment, with only the administration of medication or the performance of any medical treatment deemed necessary to alleviate pain.
You can mandate the withholding or withdrawal of artificially provided food, water, or other artificially provided nourishment or fluids.
You can authorize your agent, called a “health care surrogate” to withhold or withdraw artificially provided nourishment or fluids, or other treatment, if the surrogate determines that it is in your best interest.
You can also direct the giving of all or any part of your body for transplantation, and/or education or research.
Wills, Trusts and Gifts:
Finally, we assist our clients with the ultimate disposition of their assets and wealth. There are a number of vehicles that a client might use to transfer the assets to their family members or other beneficiaries. Three commonly used documents/techniques are Will, Trust and gifts. Each of these is discussed in turn.
Last Will and Testament:
A Last Will and Testament allows you to choose how you want your property to be distributed upon your death. If you do not have a Will, the Kentucky intestacy laws direct how your property is to be distributed. However, the Kentucky intestacy laws may not distribute your property how you wish, especially if you are married and want to give all of your property to your spouse.
In a Will, you can also select the person or entity that you want to handle the administration of your estate, also known as the “Executor.” If you have minor children, you can also nominate one or more “guardians” to have the care and custody of your minor children.
If you own a business, you may also want to appoint someone to handle your business affairs.
There are many different types of trusts, for different situations. Not everyone needs a trust, but often times they do. Trusts are commonly used to hold assets for minor children until they reach an appropriate age to receive their inheritance. Trusts are also frequently used for second (or subsequent) marriages where there are children from previous marriages. Trusts are often used for specific purposes, such as special needs/disability planning, or for long term care planning. We can help you decide whether you need a trust, and if so, make sure you have a trust that fits your needs.
In some cases, our clients want to make gifts during their lifetime. We assist our clients in arranging the best time and best method of making such gifts, so that the gifts coordinate with our clients’ overall estate plans.