Wills, Estates, Power of Attorney, and Advance Directives in Healthcare
Estate planning and wills are often confused, but they serve different purposes. Understanding the distinction is crucial for effective financial management and asset protection.
While making a will is a part of estate planning, it’s not the entirety of it. Estate planning encompasses a broader set of arrangements to manage your assets and affairs both during and after your life.
Estate Planning
What is Estate Planning?
Estate planning involves outlining a comprehensive strategy for managing your estate upon your death. It includes various components such as a will, asset list, and power of attorney.
What does an Estate Plan include?
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- A will
- An asset list detailing all your properties and investments.
- Power of attorney, granting someone the authority to make decisions on your behalf if you become incapacitated.
Who Should have an Estate Plan?
Everyone, regardless of life stage or financial situation, can benefit from having an estate plan. It ensures that your wishes are followed and reduces stress for your family.
When should you start Estate Planning?
It’s never too early to start estate planning. Regardless of age or health, having a plan in place provides peace of mind and ensures your affairs are in order.
What is the Estate Planning process?
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- Assessing your assets and liabilities
- Determining your goals and wishes
- Drafting legal documents such as a will and power of attorney
- Reviewing and updating your plan regularly.
Wills
What is a Will?
A will is a legal document that specifies how your assets should be distributed upon your death. Additionally, it can outline preferences for the care of your children after your passing and designate an executor to carry out these instructions.
Working with a legal professional specializing in estate planning can ensure your will meets all legal requirements and accurately reflects your wishes.
Importance of having a will
Your will allows you to make important decisions about the distribution of your assets and the care of your loved ones. Take the time to consider your choices carefully to ensure they reflect your wishes accurately.
Clear Distribution
A will provides clear instructions for asset distribution, reducing the likelihood of disputes among heirs.
Designated Executor
Naming an executor in your will ensures that someone you trust is responsible for executing your wishes.
Avoiding Intestacy
Without a will, your assets may be subject to the intestacy laws of your state, leading to a lengthy and costly legal process.
Power of Attorney
What is a Power of Attorney
Power of attorney is a critical component of estate planning, often overlooked. It involves preparing not only for death but also for potential medical incapacitation. Through power of attorney, you can appoint someone, not necessarily a lawyer, to act on your behalf in case of incapacity.
This person makes decisions regarding your property, finances, and medical care. It’s important to document your wishes in your estate plan to guide your power of attorney. While hopefully not needed during your lifetime, power of attorney cannot be established retroactively. By including power of attorney in your estate plan, you empower someone to speak for you when you’re unable to, ensuring your wishes are honored during emergencies.
Advance Directives in Healthcare
What is a Advance Directive in Healthcare?
An advance directive serves as a vital tool for healthcare decision-making when you’re unable to communicate your preferences regarding medical treatment. It outlines your wishes for medical care and becomes effective in situations where you cannot make decisions for yourself.
What Does an Advance Directive Cover?
A health care directive encompasses various decisions related to medical treatment, including:
- Diagnostic testing
- Blood transfusions
- Resuscitation
- Life support
- Feeding tubes
- Antibiotics
- Surgical procedures
- Palliative or comfort measures
Types of Advance Directives
Living Will: A living will is a legal document that articulates your preferences for emergency medical treatment when you’re unable to express them yourself. It specifies which medical interventions you desire, those you wish to avoid, and the circumstances under which these preferences apply.
Durable Power of Attorney for Health Care: This legal document designates a health care proxy, someone authorized to make medical decisions on your behalf if you’re incapacitated. Your chosen proxy should be well-acquainted with your values and wishes, ensuring they advocate for your preferences effectively.
Consequences of Not Having an Advance Directive
Without an advance directive, Provincial laws dictate who can make medical decisions on your behalf if you become incapacitated. Typically, this responsibility falls to your spouse, parents (if available), or adult children. If unmarried or if your partner isn’t designated as your proxy, they may be excluded from decision-making. In the absence of family, a close friend familiar with your values might assist, or a physician may be appointed to act in your best interests.
Additional Advance Care Planning Forms and Orders
Do Not Resuscitate (DNR) Order: Indicates your preference against CPR or other life-support measures.
Do Not Intubate (DNI) Order: Informs medical staff of your decision to decline ventilator support.
Do Not Hospitalize (DNH) Order: States your preference to avoid hospitalization for end-of-life treatment.
Out-of-Hospital DNR Order: Alerts emergency personnel to your wishes regarding resuscitation outside a hospital setting.
Physician Orders for Life-Sustaining Treatment (POLST) and Medical Orders for Life-Sustaining Treatment (MOLST): Immediate medical orders guiding healthcare professionals during emergencies, supplementing your advance directive.
Understanding Probate and Administration of Estates
When an individual passes away, their Last Will and Testament plays a pivotal role in determining how their estate is managed. Depending on the circumstances, the executor or administrator must navigate legal procedures to ensure the proper distribution of assets. Here’s a breakdown of the process:
Letters Probate
If the deceased left a will naming an executor, the executor applies to the court for Letters Probate. This legal document grants the authority to administer the estate according to the terms of the will.
Letters of Administration with Will Annexed
If there’s a will but no designated executor, or if the appointed executor cannot fulfill their duties, eligible individuals may apply for Letters of Administration with Will Annexed. This allows them to manage the estate in line with the will’s instructions.
Priority for Applying for Letters of Administration with Will Annexed
According to The Administration of Estates Act, priority for applying for Letters of Administration with Will Annexed is as follows:
- Executors
- Residuary beneficiaries in trust
- Residuary beneficiaries for life
- Ultimate residuary beneficiaries or those entitled on an intestacy.
- Personal representatives of ultimate residuary beneficiaries or intestate heirs
- Beneficiaries and creditors
- Contingent beneficiaries or those with no interest in the estate
- Official administrator
Requirements for Obtaining Letters Probate or Letters of Administration
To obtain these legal documents, the executor or administrator must complete several forms, including:
- Application forms
- Affidavits regarding the execution of the will
- Statements of property
Additionally, if beneficiaries are under 18 or dependent adults, the executor or administrator must provide notice to the Public Guardian and Trustee.
Other Considerations
- Renunciation: Persons with prior or equal right to apply may need to renounce their rights.
- Fees: Filing fees and levies apply, based on the value of the estate’s assets.
- Real Property: If the estate includes real estate, additional procedures may be necessary for land transactions.
- Administration Bond: Sometimes required to ensure the executor fulfills their duties as per the will’s provisions.
Special Circumstances
- If multiple individuals are granted letters and one dies, the surviving individuals assume the powers granted.
- If an executor passes away before completing estate administration, the court may appoint an administrator to finish the process.
These procedures ensure the orderly distribution of assets and adherence to the deceased’s wishes, even in complex scenarios such as handwritten wills.