A good estate plan does include a Last Will and Testament, but it also includes much more.
Anyone could become disabled, at any time, as the result of a freak accident. Every adult, no matter what their age, needs legal documents which spell out who has authority to manage the person’s affairs or make decisions if that person does become mentally disabled. The document that spells out the powers and responsibilities of the agent is called a Power of Attorney.
Although these documents are available “online,” they are complex, technical documents. Sometimes “penny wise” is “pound foolish,” and using cheap forms off the internet may be one of those times. A power of attorney should not be entered into without advice of an attorney. Additionally, by the time a person really needs to rely on their advance planning legal documents (for instance, if a person is in a coma), it is too late to do it then. This is because if a person is mentally incapacitated, he or she lacks capacity to execute legal documents. This means that if a mistake has been made in a form obtained online, that mistake will likely not be discovered until a time when it is too late to fix it.
What then? If a person becomes mentally disabled without a general, durable power of attorney that has been properly executed, sometimes the only solution is to procure a court-ordered Guardianship or Conservatorship. The requirements of due process make these difficult to obtain, expensive, and time consuming for one’s loved ones.
A second category of documents that should be offered with every estate planning package is an Advance Directive (such as a Living Will), and a Health Care Power of Attorney. Forms for these are also available online. It is highly advisable, however, to obtain professional assistance in addressing the meaning of the decisions in the documents and also to ensure that the documents are validly executed. These are another example of documents that do one no good if they are not properly executed and communicated to those who need the information.
It is true that not everyone will become disabled. Not everyone will need to rely on these documents. If that’s the case, great! But failure to have them is like playing Russian Roulette. You never know when or where disaster may strike, and these are documents that are critical to have when it does.
A professionally guided estate plan should also address special needs, such as special needs of blended families or needs of children with disabilities (who may benefit from a special needs trust).
Good, comprehensive estate planning, guided by a professional, is truly a case where an ounce of preventive planning is worth a pound of cure.
To discuss this more, please call 803-414-0185, or use the contact form below. (Please note that legal services are available only in the State of South Carolina.)
