Tips on Creating Essential Legal Tools for the Future

There is no better time than now to make plans for what we want to happen when we die or become incapacitated by illness. Actually, it is essential. Not only do we want to have plans of action in place now, we want them to be as specific as possible, so that our family is very clear about our wishes. We all want to protect our hard-earned savings and assets. We want them to go precisely to the people we mean to have them when we die. We also want to have a say in making decisions about our health care.

Here are 10 tips that will protect your family from undue legal proceedings and bitter arguments, and give them necessary guidance and strength they'll need during a stressful time. These tips include preparing four vital documents to be made at once: a Will, a Durable Power of Attorney, a Living Will, a Health Care Proxy.

1. Have a lawyer draft your will. This ensures that your assets will be divided according to your wishes. If you do not have a will, the state will decide how your assets are distributed. A will names an executor or executrix who pays taxes and debts out of your estate and assures that your instructions are carried out.
   
   
2. Have your lawyer structure your assets so that your wishes as to who will get them can be carried out. Plan how these assets will be managed and controlled.
   
   
3. Talk to your lawyer about setting up a trust if it is helpful is protecting your estate from probate or taxes. A testamentary trust is part of your will and takes effect when you die. A living trust is established before you die.
   
   
4. Update your will every few years, especially if there is a change in circumstance like divorce, a move to another state, a change in beneficiary.
   
   
5. Keep your will in a separate strongbox (not in a safe-deposit box) along with any letters of instruction, or with a state registry service, so that it is easily accessible.
   
   
6. Make several lists: specific bequests such as jewelry, photos, or other belongings; funeral and burial instructions; a list of all important financial and legal documents such as deeds and titles, and a list of doctors, lawyers, accountants, financial advisers. Include these with your will.
   
   
7. Have your lawyer draft a Durable Power of Attorney. This document is signed, witnessed, and notarized when you still have the legal capacity to understand that you are authorizing an agent, usually a member of your family, to make decisions for you. In order to be durable, the DPOA must say that it is not affected by your future incapacity or disability, which is why it is so important to have when you cannot make decisions on your own. You give your family member the power to act on your behalf regarding residential placement, personal and financial matters, and health care. It is most important to spell out all powers and access you give to your family member, including access to a safety deposit box. Your DPOA should be updated every two to three years by initialing it and having it notarized again.
   
   
8. Most states require that a DPOA include a health care proxy. This form names someone (usually a family member) to make decisions for you regarding your health when you are not competent to make them yourself. The health care proxy authorizes your agent to make health care decisions, to provide consent to or withdraw treatment, and to authorize admission to or transfer from a health care facility.
   
   
9. Execute advanced directives concerning your choice about medical treatment to be carried out when you are no longer capable of making these kinds of decisions. They must be made while you are still competent, so don't wait. Both a living will and a health care proxy constitute advanced directives and go hand in hand. A living will makes known what you want to happen when you are faced with a terminal condition. It spells out your desire to refuse artificial life-prolonging measures like being put on a respirator or receiving nutrition and hydration. It also appoints a health care surrogate (family member) to carry out your wishes for you. The laws of your state apply to advanced directives. If you live in New York only part of the year, and in Florida the rest of the time, you need advanced directives for both states.
   
   
10. If you need further help, contact your area agency on aging through the Eldercare Locator (800) 677-1116. The agency has info on state laws and local legal aid societies that offer free services.