Should I Have an Estate Plan?
In a world of complexities, here’s a simple answer. Yes, you should.
New clients often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning, their estate will be distributed after death according to Ohio’s laws of intestacy. Of course, this may not be the plan they would have chosen, and in fact, might be against their express desires. However, a properly drafted estate plan will replace the terms of the State’s estate plan with your own.
Last Will and Testament
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will they are said to have died “intestate” and Ohio law will determine how and to whom the person’s assets will be distributed. Some things you should know about wills:
A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
A will does not help an estate avoid probate. A will is the legal document submitted to the probate court, so it is basically an “admission ticket” to the probate process in Ohio.
A will is a good place to nominate the guardians of your minor children if they are orphaned. All parents of minor children should document their choice of guardians. If you leave this to chance, you could be setting up a family battle, and your children could end up on the losing side with the wrong guardians.
Powers of Attorney
A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain things for you. What those powers are depends on the specific terms of the document. A power of attorney may be very broad, or it might very limited and specific. All powers of attorney terminate upon the death of the maker, and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to designate a back-up decision-maker in the event of incapacity, then a durable general power of attorney should be used. Durable Powers of Attorney should be frequently updated because banks and other financial institutions may hesitate to honor a power of attorney that is more than a year old.
Power of Attorney for Health Care
The Power of Attorney for Health Care (POAHC) is an advance directive that specifies the type of medical and personal care you would want should you lose the ability to make and communicate your own decisions. Anyone over the age of 18 may execute POAHC, and this document is legally binding in the State of Ohio. Your POAHC can specify who will make and communicate decisions for you, and it can set out the circumstances under which you would not like your life to be prolonged if, for example, you were in a coma with no reasonable chance of recovery.
A document that goes hand-in-hand with your POAHC is an authorization to your medical providers to allow specified individuals to access your medical information. Without this authorization, your doctor may refuse to communicate with your hand-picked decision maker.