Basic Estate Planning
Basic Estate Planning Process
Our firm adheres to a specific process for each estate plan we create. For most estate plans, the process includes the following meetings:
- Get Acquainted Meeting: This is just what it sounds like. We want to make sure prospective clients have an opportunity to ask all their questions, confirm they are comfortable with us and determine a likely fee range before making any commitment. We do not bill anyone for anything until the following three things are confirmed:
- The client feels this is the right time to proceed;
- The client feels we are the right firm for them; and
- The estimated price is acceptable.
If all three of these considerations are confirmed, we will deliver a “New Client” informational packet to the client, together with a list of things to bring to the next meeting. If not, we will not move forward and the prospective client will not be charged.
- Data Gathering and Design Meeting: This is where the attorney/client relationship is formalized. We review the asset information and create a spreadsheet inventorying all estate assets. This helps us identify important planning options and design considerations. Then the attorney leads the client through a design conversation that will ensure the ultimate plan will meet the client’s wishes and accomplish their estate planning goals. This is VERY different than word-processing attorneys who simply give their prospective clients a set of forms to fill out, to then return a standardized form with the various answers plugged in.
- Signing Meeting: After the documents have been designed and drafts have been reviewed by the client, all final documents are prepared and a signing meeting is set. At the conclusion of this meeting, the estate plan is effectively in place. Your attorney will have personally drafted each of your legal documents and will review them with you to make sure everything is just right.
- Funding Meeting: This meeting is for the purpose of making sure all of the client assets that require a title change are handled and adjustments to beneficiary designations are initiated. The importance of funding cannot be over-emphasized. For your plan to actually “work” as intended, complete funding must be accomplished. This is why we insist on supervising it as part of our process!
POWERS OF ATTORNEY
An important part of every estate plan – whether it is trust based or will based – is powers of attorney that have been customized for you. Wright & Wright routinely prepares – three documents: (1) Durable Power of Attorney; (2) Advance Health Care Directive; and (3) an authorization to release medical information as provided by the Health Insurance Portability and Accountability Act (commonly known as a HIPAA Release) in every estate plan we prepare.
DURABLE POWER OF ATTORNEY
A “durable power of attorney” designates someone to act as your agent (attorney-in-fact). Your agent is the individual you have given the authority to act on your behalf should you either choose not to handle your financial affairs or you are unable to handle your financial affairs due to a mental incapacity such as Alzheimers or dementia.
When the document becomes effective only upon proof of your incapacity, it is called a “springing” durable power of attorney. Alternatively, your power of attorney can become effective the day you sign it and is therefore an “immediate” durable power of attorney. A durable power of attorney is not subject to court supervision, but court review is available.
The powers granted can be sweeping, so careful consideration needs to be given in choosing your agent and determining whether or not you want to put any limitations on his or her power. We are often asked whether or not the document should be recorded. In most cases, the answer is “no.” However, if your agent is required to act on your behalf to sell or purchase real property, the power of attorney will have to be recorded.
It is always wise to document your choise as to an alternate agent, just in case your first choice is unable to act.
Your power of attorney also serves to help avoid a probate proceeding known as a conservatorship of the estate. The person you choose in your document has priorty should a court proceeding ever become necessary.
Note: In addition, if you chose to sign an immediately effective power of attorney, it is wise to check with your bank and brokerage firms. Some institutions prefer to have their own forms used. Although a properly drafted form is legally binding, it may greatly ease your agent’s ability to perform financial transactions on your behalf if you take this extra step.
ADVANCE HEALTH CARE DIRECTIVE
This document gives your agent (attorney-in-fact) the power to make health care decisions for you when you are no longer capable of giving informed consent to treatment. In most cases, hospitals, surgery centers, and convalescent homes require one before admission. It stands to reason, that when you are in a medical crisis, that is not the time to make end of life decisions.
Our firm drafts custom powers of attorney for health care. We routinely ask you about your preferences for in-home care, elective autopsies, organ donation, and wishes regarding funeral arrangements. The goal is for you to make these types of decisions while you are well so that should you be unable to communicate, there are no questions about what you would instruct your medical professionals to do if you could.
Formerly, a release of medical information was part of your Advance Health Care Directive. Currently, physicians and hospitals are looking for this release to be in a separate form.
You will want to think about who might want access to your medical records after you are gone. This may include individuals other than your agents under your Advance Health Care Directive. Because, unlike your durable power of attorney where your agent’s powers lapse at your death, you have the option of extending the release of medical records for up to two (2) years.