Legal Corner: Estate Planning

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by Don Eddins, JD

Estate planning is important, since we never know what the future holds. At a minimum, the estate plan should include a will, a durable power of attorney and an advance directive for health care, which includes a living will.

Last Wills and Testaments

A will, or “last will and testament”, allows an individual to decide the disposition of his estate, rather than the government. The maker of the will, also known as a “testator,” can determine how his property is divided after death, rather than having a probate court divide belongings under a division plan established in the law. Ultimately, the probate court might divide the property same as the testator (perhaps equally among all children) but someone would have to ask the court to be named administrator. But in order to divide the property, that person would have to post bond, which can cost hundreds or even thousands of dollars, depending upon the size of the estate. A will can include a clause excusing the posting of a bond.

Powers of Attorney

In my opinion, equally important even to a will is a power of attorney (POA), to be used if the maker of the document becomes incapacitated.

If you are in an accident or for some other reason become unable to tend to your affairs, the person you have designated for power of attorney is able to go to the bank and Social Security Administration or wherever needed and sign for you. If you don’t have such a document and become incapacitated, someone would have to go to court to obtain the authority.

A word of caution on a POA – don’t give it to someone you don’t trust fully. As the old saying goes, don’t send a hungry man for your sandwich because he will eat it on the way back. Entrust with your POA only a person who would act in your best interest.

Living Wills

Alabama has a very good law on advance directives for health care. Basically such documents include two parts. One is a living will that allows the individual to decide whether he/she wishes to be connected to life-sustaining devices in case of terminal illness. The second part allows you as the maker of the living will to select your health care proxy to make decisions about treatment when you are unable to do so or to ensure that your wishes of no treatment are carried out.

Whether a person chooses to adopt a living will is very much a personal decision. As an attorney, I do not encourage or discourage it. My wife and I have a living will because we do not want to put the burden upon our children of deciding whether to disconnect life sustaining devices.

Under the law, only those persons deemed incapable of being cured of a terminal illness and incapable of regaining consciousness would be disconnected from life sustaining devices. The prognosis must be made by two doctors, including the individual’s personal physician. In addition, even if life-sustaining measures were discontinued, the terminally ill individual would be given comfort medications.

You may make a living will without naming a health care proxy. However, the selection of a health care proxy, in writing, gives health care professionals someone to consult with on critical issues related to your treatment, if you are incapacitated.

In today’s society, estate planning is essential to avoid taxes and ensure that our preferences are met. It is something that none of us wants to take the time to do, but is nonetheless very important. Your legal professional can help.