Costly medical bills, the potential need for nursing home care, the possibility of dying, and the need to provide security for a surviving spouse are a few important reasons to get financial affairs in order.
Just as people usually get to a point where they need a health care representative to make decisions when they can’t, it’s wise to appoint someone to make financial decisions should that time come.
Planning ahead ensures that family members will be provided for in the manner of your choosing.
Power of Attorney: Someone to handle your finances, just in case
During the course of an illness, it may become difficult to get to the bank, file taxes, go to the assessor’s office, or balance the checkbook. Yet to protect you, most financial institutions will not discuss your finances with anyone who is not listed on your account. These circumstances can become a significant problem if you become homebound or bedridden. To alleviate this quandary, consider choosing a trustworthy person to be your “durable power of attorney.” Once you have made your choice, legally all you need to do is fill out a durable power of attorney form available at any stationary store. Be sure to find out if it must be notarized to be valid.
Giving someone power of attorney means that person has the right to make financial decisions in your place. For this reason, you must choose the person with care. If you have any doubts about the individual you have in mind, hold off on making a final decision.
Giving someone power of attorney, however, does not mean you lose control of your finances. You can continue to make all decisions and carry out all your transactions as usual. But if something happens to you and you become incapacitated, the person who has durable power of attorney may act in your stead. You have the option of limiting the person’s rights to managing your banking, taxes, or specific accounts.
You may also revoke durable power of attorney at any time. Simply send a written notice to each of your financial institutions and consultants. (The word “durable” does not mean “forever.” It simply means that if you become mentally incapacitated, e.g., from a stroke or Alzheimer’s disease, the person may continue to make financial decisions for you.) Until a durable power of attorney is revoked, it remains valid as long as you are alive. At such point that you pass on, however, the person serving as your durable power of attorney will no longer have access to your assets or decision-making rights regarding your finances.
Some people choose to open a joint checking account with the trusted person, which is a less-formal arrangement than durable power of attorney. This enables the cosigner to write checks after the death has occurred, which can simplify tasks such as bill paying. This setup does not allow the person to sign your taxes or conduct other legal transactions for you. If you decide you want to change the arrangement, however, it may be a little more difficult to revoke shared access to a joint account than it would be to revoke a power of attorney.
A durable power of attorney can only be granted while the individual who is ill is still mentally sound. If you have a terminal illness, there will likely come a time when you will not be able to make decisions for yourself. Without a durable power of attorney in place, especially if you are not married and you become mentally incapacitated, the courts would appoint someone to make financial decisions for you. This person might be a family member or even an attorney. You can safeguard your estate against a court appointment by selecting a durable power of attorney ahead of time.
If you become mentally incapable and have no legal spouse and no paperwork in place, the court will appoint decision makers for you. In general, two types of decisions must be made-one regarding health and well being and the other regarding finances. A person appointed to make decisions in these two areas is called a “guardian.” A person appointed simply to look after the financial side of things is called a “conservator.” To learn more about power of attorney, guardianships, and conservatorships, go to the National Guardianship Association website or talk to an attorney who specializes in elder law.
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Wills and living trusts: In the event of your death
The need to protect your partner is a key reason to get your financial papers in order. You will want to be sure that he or she is not left high and dry, especially if you are living with someone without being married. Inheritance laws do not acknowledge unmarried couples; thus, you must specifically stipulate your wishes regarding your house or other assets. This is particularly true for same-sex partners because surviving family members may not be aware of the partnership or may be unwilling to respect the union.
Everyone over age 18 should have a document that designates whom they want their assets to go to in the case of their death. Generally called a “will”, such papers also can describe who are to be the guardians of minor children in your custody. If you do not have a will, state law will divide your property according to its own formulas. It will even appoint a guardian for your children if their other parent is not able to care for them.
To be legal, a will must meet these requirements:
- You must be mentally capable at the time that you create it.
- The document must state specifically that it is your will.
- You must sign and date the will in the presence of as many as three witnesses.
- The witnesses must sign the will. They are not required to read the document. Their signatures simply affirm that they know it is you signing the will and that you were of sound mind when you created it. The people you choose to be witnesses should not be people who will be receiving assets from your estate.
It is advisable that you choose someone to be your estate’s executor—the person who will manage the distribution of your assets. Give a copy of your will to this individual and keep a copy at home and perhaps one in a safe deposit box.
After death, a person’s estate usually goes into probate, which can involve inheritance taxes and other expenses. It will also take time to distribute all the person’s assets. To spare survivors this ordeal as well as save on taxes, some people choose to make a revocable living trust. This document is similar to a will in that you can determine who receives what after you die. However, it is quite different than a will because you remove your name from your property while you are still alive and put all your assets into the trust.
The laws governing living trusts are very complicated; composing a living trust that truly meets your needs requires the skills of a lawyer. Not surprisingly, living trusts can be expensive. One advantage is that you spend the money and devote the time to setting it up before you die or are incapacitated, thus sparing your survivors these expenditures. If your estate is not very large, however, it may not be worth the expense. Beware that there are many living-trust scams that offer low-cost kits or paperwork. In fact, this is such a widespread problem that the Federal Trade Commission has provided an online brochure to help you avoid these con artists.
To help you learn more about financial decisions and estate planning, Nolo Press, an organization dedicated to “putting the law in plain English,” also has an online encyclopedia with free articles about wills, trusts and estates.
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