Many people do not realize that an estate plan does a lot more than determine distribution of your property after your death. Careful estate planning protects you during your life as well.
An important goal of estate planning is addressing potential issues you may face in the future. You cannot predict what might happen in the years ahead, but you can protect yourself and your family if events occur that significantly affect your life.
If you unexpectedly receive serious injuries in an accident, suddenly become ill, or suffer a medical emergency, your family will face some critical questions:
If you do not have valid legal documents in place that explain your wishes and designate specific individuals to make decisions, your family may have to ask the court to designate someone to care for you and manage your finances. That person may be someone you would not choose. They may make decisions inconsistent with your own wishes.
When a loved one becomes incapacitated for any reason, family members often disagree about who should be responsible for care, control finances, and make decisions. Those disagreements can escalate into outright disputes and court fights. They can ruin relationships irreparably for life.
Documents in your estate plan prevent all this uncertainty, confusion, and conflict. The best time to create your plan is while you are healthy and can express your wishes and select individuals to take care of you and your finances in the event you are unable to tend to those matters.
A careful and thoughtful estate plan protects you during your life. It also protects your family by providing certainty for them if unexpected events occur.
Two primary documents in your estate plan address your potential lifetime needs:
In a durable financial power of attorney, you designate a family member or other qualified individual who will have authority to manage your assets and handle your financial affairs in the event you are not able to do so yourself. Creating a POA enables you to choose someone you trust to make financial decisions on your behalf.
If you become incapacitated and do not have a valid durable financial POA, your family will have to ask the court to appoint a conservator to handle your financial affairs. The judge may choose someone you would not wish to have that responsibility and authority. If family members disagree over who should be appointed, they might argue over the appointment in court. Not only can those types of disputes harm family relationships, they also can consume a substantial amount of your assets in court and attorney’s fees.
Additional information about powers of attorney is available in our article, Power of Attorney Misconceptions.
Your health care directive includes several different parts:
Your power of attorney for health care decisions designates someone you trust to make decisions about your health care if you become incapacitated and unable to make those decisions yourself. That person is your health care agent.
Your advance directive (sometimes called a living will, although it has no relationship to a will that distributes property after death) sets forth your detailed instructions concerning care that you do or do not want if you become incapacitated. Your advance directive includes your wishes about end-of-life care, life-prolonging treatments, and palliative care (comfort care or pain relief). The HIPAA release form gives your health care agent access to your medical records, which may be necessary to determine your treatment.
If you do not have a health care directive, your family may end up asking a judge to appoint a guardian and health care agent to make personal care and medical decisions for you. That process carries the same risks as a conservatorship proceeding. The person may be someone you would not choose. And if family members disagree about who should have the authority, the process may not end well for all concerned.
You should never use forms for POAs and health care directives that you find online or that someone gives you. If you live in Georgia, state law strictly regulates these documents. They must meet specific requirements to be valid. Georgia law concerning financial POAs changed significantly in 2017 and 2018. It is especially important that your documents comply with these recent legislative changes.
Online services encourage you to create these documents (and even estate plans) without talking to an attorney. Following that advice is a very serious mistake. You risk ending up with documents that are not valid in Georgia or that do not accomplish your wishes. Wholly or partially invalid documents lead to litigation in court, as well as to state law making decisions for you and your family.
Your financial power of attorney and health care directive should be part of your overall estate plan. They should be consistent with the other parts of your estate plan, which govern your financial assets and property.
Consulting with an experienced Georgia estate planning attorney is the only way to ensure that all your documents are valid in Georgia and that all the parts of your estate plan work together as a unified whole. With the professional guidance of a knowledgeable lawyer, estate planning protects you during your life and takes care of your family after your death.
In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, we focus on protecting our clients and their assets, whatever their unique circumstances may be. Powers of attorney and health care directives are important components of our services.
We provide estate planning services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County.
Call us at (770) 382-0984 or contact us through our online form.