Every estate plan, whether you have a Will or a Trust, should include documents to direct the care of you and your assets during a time of incapacity. Having these documents in place will ensure that your wishes and desires for yourself and your assets are carried out if you are unable to manage your assets or make medical decisions for yourself.
These documents provide valuable instruction to your family and loved ones who may otherwise have difficulty deciding how to manage your assets and your medical care. Preplanning for incapacity will also avoid possible conflicts between family or loved ones who may not agree on who should be making financial and medical decisions on your behalf.
At the very minimum your estate plan should include:
- Power of Attorney for financial matters
- Durable Power of Attorney gives the person you designate as your agent the authority to make decisions and manage your assets whether or not you are able to act for yourself.
- Springing Power of Attorney gives the person you designate as your agent the authority to make decisions and manage your assets if a written medical opinion issued by a licensed medical doctor states that you are incapable of managing your assets.
It is important to understand the difference between these two powers and which one is right for you and your family.
- Power of Attorney for health care decisions
- Gives the person you designate as your agent the power to make health care decisions for you if you cannot give informed consent yourself
Without a Power of Attorney for health care no one has the legal authority to make medical decisions for you, except, in most cases, your spouse. Parents do not have the authority to make medical decisions for adult children unless specifically given that power.
- Living Will
- Expresses your wishes regarding whether or not you want to be on life support
- Designates an agent to carry out your wishes
Your Living Will should work in conjunction with your Power of Attorney for health care to ensure your agent has the authority to carry out your wishes.
A properly drafted Powers of Attorney and Living Will are an important part of your estate plan. Your decision in appointing agents to represent you during incapacity may significantly impact your care and finances, as well as family relationships. Your Powers of Attorney and Living Will should work with your Trust or Will to ensure your plan stays in place if you are not able to act on your own behalf.
Alternative to Powers of Attorney
One alternative to having Powers of Attorney in place is guardianship. In Nevada there are two types of guardianship: guardianship over the assets and guardianship over the person. Someone, who may not be the person you would choose, petitions the court to be guardian over you, your assets, or both. An adult guardianship requires a hearing before a judge. Family members are notified of the hearing. Once appointed by the court, your guardian is responsible for making decisions about your care and support, and/or your assets. There are some things your guardian cannot do without court approval. Having properly prepared powers of attorney as part of your estate plan can avoid guardianship.
To learn more about how Powers of Attorney and Living Wills work with your estate plan contact Barfield Law and speak to Millie Barfield, an experienced estate planning attorney.
