UNDERSTANDING TRUST & ESTATE PLANNING
As you prepare to make sure your loved ones are cared for when you are no longer there to care for them, it is important to consider developing a comprehensive estate plan that is tailored to the unique aspects of your situation. While you may be familiar with wills and how they ensure your property is divided according to your wishes, it is important to make yourself familiar with trusts and how they can protect your property from public scrutiny, probate and taxes.
What is a Trust?
A trust is a legal entity designed to hold and invest property for the benefit of another. Trusts may be established during your lifetime or after your death as outlined in your will. Some trusts allow you to remain in complete control of your property while others limit your control.
A revocable trust allows you to maintain ownership and control over your property. The terms of the trust may be changed by you at any time while you are still mentally competent.
With an irrevocable trust, you relinquish ownership and control of the property placed in the trust. Once the terms of the trust are in place, you may not change them.
A testamentary trust is established after your death, through a will. A competent estate planning lawyer should be able to help you understand the differences between the various types of trusts available to you, make you aware of the tax consequences of each and assist you in selecting the appropriate vehicle to maximize your estate goals.
LAST WILL & TESTAMENT
We all do our best to prepare for the future. From purchasing insurance policies that protect our assets and health to investing for our retirement we routinely make decisions that will affect our future. But what about making sure your family is provided for in the event of your death? Few of us like to think about our end of days, but it is important to have your affairs in order to ensure that your loved ones are cared for and your assets are distributed or maintained in the way that you intend.
A will is a legal document that allows you to name a guardian for your child and specify who will inherit your property after you die. Without a will, you will have no say in what happens to your property. The Clark Law Group can advise you in all of your estate planning needs with the foresight and precision writing a will demands.
POWER OF ATTORNEY
An important part of lifetime planning is the power of attorney. A power of attorney is accepted in all states, but the rules and requirements differ from state to state. A power of attorney gives one or more persons the power to act on your behalf as your agent. The power may be limited to a particular activity, such as closing the sale of your home, or be general in its application. The power may give temporary or permanent authority to act on your behalf. The power may take effect immediately, or only upon the occurrence of a future event, usually a determination that you are unable to act for yourself due to mental or physical disability. The latter is called a “springing” power of attorney. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you.
A living will is your written expression of how you want to be treated in certain medical circumstances. Depending on state law, this document may permit you to express whether you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices (“tube feeding”), and to give other medical directions that impact your care, including the end of life. A living will applies in situations in which the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. Having a living will does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions.
HEALTH CARE PROXY
A “health care proxy,” sometimes called a “health care surrogate” or “durable medical power of attorney,” is a durable power of attorney specifically designed to cover medical treatment. You appoint a person and grant to him or her the authority to make medical decisions for you in the event you are unable to express your preferences about medical treatment. Most commonly, this situation occurs either because you are unconscious or because your mental state is such that you do not have the legal capacity to make your own decisions. As with living wills, depending on your state of residence, the health care proxy may be a standard or statutory form or it may be may be drafted specifically for you by The Clark Law Group. It is quite common, however, for you to appoint one or more alternate persons (successors) in the event your first choice proxy is unavailable. You should confirm prior to appointing someone as your proxy that he or she will in fact be willing and able to carry out your wishes. If your preferred proxy has, for example, a religious view that prevents him or her from carrying out your wishes, you should name someone else. As in the case of a living will, medical professionals will make the initial determination as to whether you have the capacity to make your own medical treatment decisions.
The purpose of Health Directives is to allow you to express your preferences concerning medical treatment in an extreme medical situation when you cannot communicate, including at the end of your life. By expressing such preferences in a written legal document, you are ensuring that your preferences are made known. Physicians prefer these documents because they provide a written expression from you as to your medical care and designate for the physician the person he or she should consult concerning unanswered medical questions. Rather than the physician having to obtain a consensus answer from your family as to your treatment, the physician knows your preferences and knows who you want to provide decisions when you cannot do so.
ORGAN & TISSE DONATION
In many states you can include in your advance directive your preference to become an organ or tissue donor at the time of death. State law varies, and you should check with our legal team. Even if your state is one in which your driver’s license contains an organ or tissue donor statement, you need to let your health care proxy, your family, and your physician know your desire to become a donor. In some states you also need to be registered as an organ and tissue donor.