Legal Ease: Basic tools of doing estate planning

People often know that they need to be planning for their future legal needs, but have no framework in which to think. Let me explain three basic documents most people will want to consider when doing their estate planning.

Last Will and Testament. In this document you can state who you want to inherit your worldly possessions, what conditions you want to attach, and who you want to carry out the directions contained in your Will following your death.

In a traditional family of dad, mom, and their kids a Will might say: All to my spouse; if my spouse is not living, all to my children in equal shares; my spouse to be the executor to carry out these directions; if my spouse can’t be executor, then my number one son to be the backup executor.

In more complex families, or for families of substantial wealth, a Will might be more involved: It might leave specific items to specific recipients (called beneficiaries); it might place an inheritance which would go to a young or disabled person in a container called a Trust where it can be managed for the beneficiary by a mature person or a bank in such a way that it will not be squandered nor interfere with government benefits; it might limit the degree to which a beneficiary can deplete the inheritance during life so some of it will be available to a second beneficiary after death of the first beneficiary. It might divide the family real estate among various beneficiaries; there are many other things a Will can do when appropriate.

In West Virginia, for your Will to be valid you must sign your Will and, unless it is entirely in your handwriting, two witnesses must see you sign it and also sign the will as witnesses. For convenience in using the Will after your death, those witnesses also should sign a notarized affidavit that they did see you sign the Will.

Statutory Durable Power of Attorney (SDPA). This might be the most important document, because, without it, if you become incapable to take care of your own financial and business affairs while you are alive, your family may have to go to court to get appointed to do so for you. Although written in legal language (lawyers cannot use two or three simple words when we can find seven or eight big words to say the same thing), a SDPA says, “If I want or need somebody else to help me manage my real estate, my financial affairs, or deal with other day-to-day business affairs in life, I designate [your choice helper], backed up by [your second-choice helper] to be my helpers in these areas of my life.” Although SDPA forms can be found on the internet, a SDPA needs to be written by a professional because, to be adequate to do all you might need done, it has to include specific language that laypeople don’t know to include and many forms available on the internet don’t include. Balancing that, the SDPA is a powerful tool, so you will want it to contain limiting language to minimize the risk that your helper might be more stupid or dishonest than you thought.

To be valid in West Virginia, you must sign it in the presence of a notary public, who notarizes that the notary public saw you sign the document. Although not required in West Virginia, it is a good idea also to have two witnesses sign the SDPA, attesting that they also saw you sign the document.

Combined Medical Power of Attorney and Living Will. This document relates to who you want to make your health-care decisions at times when you are not capable of making your own health-care decisions, and, the treatment you want when you are on your death-bed.

This document has no effect unless your doctor determines that you are incapable of making your own health-care decisions. When the doctor makes and records that determination, the power to make your health-care decisions switches to the people you have named (and in the pecking order you have designated them) to be your “Medical Representatives” in the Medical Power of Attorney portion of this document. It always is a good idea to name a primary helper and one or more back-up helpers.

The Living Will portion of the document, although not in these words, basically says “If I am on my deathbed but cannot communicate with my health-care providers, I want them to focus my care on surrounding me with as much peace, love, and dignity as can be provided; providing me with any medical treatment that will increase my comfort or decrease my pain; but not doing medical things to me or for me if the only reason for doing them is to extend the length of time I’m stuck in this condition”.

Your personal or religious desires about treatment or withholding treatment also can be stated in these documents.

While not absolutely required, to be valid in West Virginia, this document should be signed by you in the presence of two witnesses and a notary public, all of whom also sign the document in their roles.

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Gerald W. Townsend, an Elder Law Attorney, is a partner in the law firm of Fluharty & Townsend, where he focuses on Medicaid nursing home planning to save life savings and the home from nursing home costs. He can be reached at jtownsend@fntlawoffices.com.

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