Basic Documents Everyone Should Have for Estate Planning

There are 4 basic documents everyone should have for Estate Planning. They are :

1.A Last Will and Testament

2. A Durable Power of Attorney

3. A Health Care Proxy

4. A  NY Living Will

I will briefly discuss each one in turn.

1. A Will

In its simplest form  a Will is a document that disposes of  your property after you die. It usually nominates an Executor to collect all the assets of the Estate and distributes them to the Beneficiaries named in the will when the will goes the Probate Process in the Surrogates Court. A discussion of the Probate Process is beyond the scope of this article but will be presented in a separate article on Estae Administration in the future. A will may also designate  a Guardian for any beneficiaries who are Minors

( under age- 18 in NY ) and any money that would be distributed to them will be held in a Trust until they attain legal age or until some other time period specified in the Trust.

A Will can be as simple or as complicated as necessary to achieve the goals of the Testator ( the person whose will it is ) and can include complex provisions regarding how taxes are to be handled and the creation of trusts, etc.

2. A Durable Power of Attorney

This is a document in which a person ( called the Principal ) chooses another person (called the  Agent to make decisions ( usually financial but also other decisions except medical ones ) for him  and this ability  of the agent to make decisions survives the incompetence of the principal. This means that  if the principal becomes mentally  incapacitated and unable to make decisions for himself ( such as if he gets Alzheimer’s Disease-a disease affecting memory  and mental faculties ) then the Agent will still be able to make decisions for the Principal. This is especially important in the context of  a Principal who may need to go into a nursing home  and is applying for Medicaid to pay for it, since the Agent can engage in medicaid planning for the Principal.

It is thus very important that the Power of Attorney be a Durable Power of Attorney ( one that survives the incompetence of the Principal) and not merely  A General Power of Attorney because a General Power of Attorney does NOT survive the incompetence of the principal and thus the agent can NOT act for the Principal if the Principal becomes mentally incapacitated.

3. A Health Care Proxy

The best way to think of this document is that it is very similar to a Durable Power of Attorney ( discussed above ) except that instead of financial  decisions the Health Care Proxy is for Medical Decisions and only takes effect if the Principal becomes mentally incapacitated as determined by 2 doctors. A Health Care Proxy Agent can make all medical decisions for the Principal  generally without extra proof that this is the principal’s wishes. However with respect to the decision to remove life support equipment that the principal is attached to, the Health Care Agent must be able to prove to the doctors that this is in fact the wish of the principal. The best way to accomplish this is  by the use of the next document – A Living Will.

4. A Living Will

As mentioned in the discussion above regarding A Health Care Proxy, A Living Will is the best way to prove that the Principal wished the removal of life support equipment. This document generally states the conditions and circumstances under which the life support equipment is to be removed. Generally it is stated that if the principal is in a coma or persistent vegetative state and it is considered by doctors to be irreversible with no hope of recovery then and only then can the life support equipment be removed. The document usually also specifies that the principal does not want to be kept alive by feeding tubes, cardiac resussitation or other extraordinary means but does want maximum pain relief.

The requirements for the Execution (signing ) of the above documents are as follows:

For a Will, A Living Will and The health Care Proxy they all must be signed by the principal and witnessed by 2 people.

The Durable Power of Attorney must be acknowledged  and signed by the principal in front of  a Notary Public. It does not have to be witnessed.

Note that in some states the Health Care Proxy  and Living Will may be combined into one document. whereas the practice in NY is to have 2 separate documents but to state on the Health Care Proxy to see my NY Living Will attached.

Watch for more articles on Estate Law and other Areas of Civil  and Criminal Law in the future.


About edwardddowlingivattorneyatlaw

Established my General Practice Law Firm in 1991 Criminal and Civil Litigation Trials and Appeals Federal and State courts Nassau and Suffolk Counties All 5 boroughs of NYC
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