Proper estate planning is one of the most important things you can do for yourself and your family. Estate planning includes powers of attorney for assets and health care, living wills to provide your wishes should you be unable to do so, and your Last Will and Testament directing how you want your assets distributed and, if applicable, minor children cared for.

LAST WILL AND TESTAMENT:

A Last Will and Testament is a legal document that details your wishes regarding the distribution of your assets and the care of your minor children in the event of your death.

While each person’s situation varies, here are important reasons to have a Last Will and Testament (a “Will”).

1) You decide how your estate will be distributed. A Will is a legally-binding document that lets you determine how you would like your estate to be handled upon your death. If you die without a Will, your assets will pass per the laws of the State of South Carolina regarding inheritance and there is no guarantee that your intended desires will be carried out. Having a Will helps minimize any family controversy about your estate that may arise, and also determines the “who, what, and when” of your estate.

2) You decide who will take care of your minor children. A Will allows you to select who should take care of your minor children if you should pass before they reach the age of 18. Absent a Will, the court system will determine who will raise your children whether it be your family members or a state-appointed guardian.

3) To avoid a lengthy probate process. Contrary to common belief, all estates must go through the probate process, with or without a Will. Having a Will, however, speeds up the probate process and informs the court how you would like your estate distributed. Probate courts serve the purpose of “administering your estate”, and when you die without a Will; the court and South Carolina law will dictate how your estate will be distributed, without your input, which can also cause long, unnecessary delays.

4) You decide who will handle the affairs of your estate. Executors make sure all your affairs are in order, including handling your funeral, paying off bills, canceling your credit cards, notifying banks and other business establishments, and handling the management of your estate with the Probate Court and your heirs.

5) You can disinherit individuals who would otherwise stand to inherit. Most people do not realize they can disinherit family members. You may wish to disinherit family members who may otherwise inherit your estate if you die without a Will. Absent a Will your estate is distributed according to the South Carolina intestacy laws and your assets may end up in the hands of someone you did not intend.

LIVING WILL (Declaration of Natural Death)

A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It is important to have a living will as it informs your health care providers and your family about your desires for medical treatment in the event that you become unable to speak for yourself and you either suffer from a terminal illness or are in a permanent vegetative state.

HEALTHCARE POWER OF ATTORNEY

A Healthcare Power of Attorney appoints someone you trust to be your health care agent, to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive in the event you are unable to do so for yourself.

When does my health care document take effect?
Your healthcare power of attorney takes effect if your doctor determines that you lack the ability/capacity to make your own health care decisions. Lacking capacity usually means that you can’t understand the nature and consequences of the health care choices that are available to you or you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes, your healthcare agent acts on your behalf. You can limit your healthcare agent to certain types of decisions. (For example, the decision to put you on life support.) On the other hand, you can also allow your healthcare agent to make any health care decision that might come up. This includes decisions to give, withhold or withdraw informed consent to any type of health care, including but not limited to, medical and surgical treatments. Other decisions that may be included are nursing care, hospitalization, treatment in a nursing home, home health care and organ donation.

What is the difference between a healthcare POA and a living will?
A Living Will is a statement of decisions you made yourself. It tells the doctor that you do not want to be kept alive by machines, if there is no hope of getting better. A Healthcare Power of Attorney gives someone else the authority to make medical decisions for you if you are unable to make them for yourself. It is meant to deal with situations that you cannot predict. Because you cannot predict these situations, you cannot decide in advance what choice you would make. The Healthcare Power of Attorney allows you to pick the person that you trust to make healthcare decisions for you when you cannot make them yourself.

Do I Still Need a Living Will If I Have a Medical Power of Attorney?
Yes. Any decisions that you make in your Living Will must be followed by the person you name as your Healthcare Power of Attorney and if you do not have the living will, many physicians and hospitals cannot refrain from providing all life-saving measures available regardless of the patient’s situation.

What is the Difference Between a Will And a Living Will?
People sometimes confuse living wills and a Last Will and Testament (your “Will”). Most people are aware of what a Will generally accomplishes. With your Will you can express your wishes regarding the desired transfer of your assets after you pass away. Under a living will, you state your preferences regarding the utilization of artificial life support measures such as feeding tubes and ventilators. Your choices recorded in the document apply in the event you are incapacitated or unable to communicate your wishes on your own.  This legal document has nothing to do with the transfer of financial assets at your death.  Similarly, your Will does not relate to medical treatment decisions.

GENERAL DURABLE POWER OF ATTORNEY

A General Durable Power of Attorney is a legal document in which one person (the “principal”) appoints another person to act as an agent on his or her behalf to perform certain acts on his or her behalf. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions on behalf of the principal such as buying or selling real estate, handling bank accounts or safety deposit boxes, or pursue a lawsuit. A power of attorney can be revoked at any time and will automatically terminate upon the death of the principal. It is also important to note that the principal must be legally competent in order to sign a power of attorney.

I want to make a Power of Attorney so that someone will be able to take care of my money and pay my bills if I cannot. Is there a way to accomplish this?
Yes, you can use a General Durable Power of Attorney or a Springing General Power of Attorney. A general durable power of attorney goes into effect at the time of signing and remains in effect even after you lose the capacity to handle your own affairs. This power of attorney is said to “survive throughout your incapacity.” You can also have a “springing” power of attorney which only goes into effect upon the determination that you are incapacitated and unable to manage your own affairs. Now instead of having to go through the court system to have someone appointed to take care of your property, the person you have already appointed can continue to act on your behalf.

What are the advantages to having a durable power of attorney?
If you become mentally or physically incapacitated, a general durable power of attorney or springing power of attorney will make sure that the person handling your affairs will be someone you know and trust and make it much easier for your family or friends to handle your affairs. If you do not have a power of attorney and you become incapacitated, many difficult, time-consuming and expensive problems can arise. Who can use your money to pay your bills? Who can sell your house? Without a power of attorney in place, your family will have to go to court to have a conservator appointed for you at additional expense and time.

All information provided herein is provided for informational purposes only and does not constitute legal advice or counsel and does not establish an attorney-client relationship between the user and Keable & Brown, PA.