Effective estate planning requires an attorney who not only deeply understands the multi-disciplinary and theoretical aspects of proper planning, but also possesses extensive experience. It involves designing and coordinating the will, any of a variety of trusts, beneficiary designations, powers of appointment, property ownership (sole ownership, joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gifts and other transfers, and powers of attorney, specifically the Durable Financial Power of Attorney and the Health Care Surrogate Designation (“Medical Power of Attorney”).
After extensive litigation and widespread media coverage surrounding the Terri Schiavo case, virtually all estate planning attorneys now advise clients to also create a Living Will. Specific final arrangements, such as whether to be buried or cremated, are also often part of the documents. More sophisticated estate plans may even cover deferring or decreasing income, gift and estate taxes, and winding up a business.
Many people, even some attorneys, confuse a Living Will with a Health Care Surrogate (“Durable Medical Power of Attorney”) or Do Not Resuscitate Order (“DNR”). A Living Will sets out directives concerning end of life decisions, whereas a Health Care Surrogate Designation gives all medical decision-making authority to an appointed individual upon incapacity, including end of life decisions. Some people have both a Living Will and a Health Care Surrogate Designation. Others, who wish to give complete discretion to a loved one, including end of life decisions, have only a Health Care Surrogate.
Unfortunately, many plans fail to accomplish their goals due to misinformation, the attorney’s lack of experience, not selecting the right person to handle affairs after death or incapacity, or the use of one-size-fits-all forms. Probably the worst plan of all is one that fails to address issues such as the family dynamics of beneficiaries who do not get along; beneficiaries who are from blended “Brady Bunch” families; beneficiaries who have substance abuse or spending disorders; beneficiaries who have shaky marriages, creditor problems, or are disabled and on government benefits such as SSI or Medicaid. A properly designed and executed plan can address the potential legal problems inherent in situations such as these, before the damage is done.
