Prep work on your Estate Planning

Durable Powers of Attorney provide substitute decision makers if the principal becomes incompetent, unconscious, or otherwise unavailable to make financial decisions.  These documents are called “durable” because they continue to be effective even if you become incompetent.  In order to utilize these documents, the Agent (Attorney-in-Fact) must present the document to the necessary party or parties (such as a bank or title agent) to execute documents on behalf of the principal.  These documents avoid the cost and delay of establishing a Guardianship if you become incompetent.  It must be noted that the Agent must act in your best interest in any actions taken.  Actions that improperly benefit the Attorney-in-Fact contrary to your interest may be a violation of law.  The Attorney-in-Fact should be carefully chosen and worthy of the assignment.

This document has been approved by the Ohio State Bar Association, Ohio State Medical Association and Ohio Hospital Association.  The document provides that if the principal becomes unable to make medical decisions, an Agent is named to make medical decisions.  Without this document, if a person is unable to make medical decisions, a Guardianship would be required.  This document also provides an option for withdrawal or withholding of the life sustaining medical treatment in case of terminal illness, or comatose state, and is identical to the Living Will.  Please review the draft of this document, and particularly the page with the discussion of the “end of life decision making” language.

Also, there are paragraphs to make the document HIPAA compliant (confidentiality is waived to your Designee) and to make an election to prevent extraordinary efforts by any relative to hinder your choice to pass.  (Terri Schiavo language)

The Will provides for the appointment of important positions, such as Executor and Guardian for a disabled or minor child, as well as governs the distribution of assets to either the spouse or to other beneficiaries. Wills only govern probate assets. Probate assets are defined as all assets which are not subject to beneficiary designation, such as life insurance, IRA’s or pensions, real estate governed by a Transfer on Death Affidavit or Joint and Survivorship Deed, or stocks, which are governed by a joint and survivor or transfer on death designation. It is important that your Wills and your non-probate planning be consistent.

A Living Will is an advance directive that directs medical personnel, as well as family as to the wishes of the principal. This document provides for life ending decisions, should the principal be in a terminal or comatose condition and unable to make those decisions at the time. There is also an optional paragraph that allows for the withholding of artificially introduced hydration and nutrition. This form has been approved by the Ohio State Bar Association, the Ohio Hospital Association and the Ohio Medical Association.

A Pour Over Will provides that everything goes to the surviving spouse at death. If the spouse disclaims (rejects) or predeceases, all the assets pass to the Trust, which is described below.  The Wills are very simple in nature and control only probate assets.  Assets such as joint and survivor accounts, payable on death accounts, or life insurance with a named beneficiary are not subject to the Will.

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