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by David E. Wyskiel, Esq.

Estate Planning used to mean only planning for what happens once you die.  Today, it is also important to plan ahead and provide instructions for health care and asset decisions that may have to be made by others while you are still alive. 

A complete estate plan will include your will, health care instructions (including a living will, appointment of health care agent, designation of conservator of your person, and designation of your wishes as to anatomical gifts), a designation of conservator of your assets, a power of attorney, and designations of guardians for your minor children.  Let's look at each of these important documents.

Your Will provides how your assets will be distributed upon your death.  A Will makes sure your own personal wishes are carried out rather than having state law determine who will inherit from you.  A carefully planned Will can also reduce taxes due at the time of your death by utilizing tax exemptions based upon the beneficiaries inheriting your property --blood relatives or charities.  A Will can also reduce probate costs by waiving the bond for your executor and authorizing certain actions of your executor without a probate hearing for approval.

Health Care Instructions make your own personal wishes known on various health care matters and speak for you when you cannot.  This document combines instructions to your personal physician or the hospital in one place so that it is clear what decisions you want made and who you want to make them.   Although you may have difficulty making the choices necessary to complete your own Health Care Instructions, your choices will ease the burdens of your family in making health care decisions knowing that they will be doing things the way you would have wanted.  The choices made in Health Care Instructions fall into the following categories:

First, there is a Living Will which provides that if you are in the last stages of an incurable disease or permanently unconscious that you do not wish to be kept alive by mechanical means, but instead that you be allowed to die with dignity.  Your Living Will provides that you be administered sufficient pain medications and other comfort measures, but no artificial means can be used to keep you alive.  Your Living Will does not authorize the premature termination or taking of your life, and it does not condone suicide measures.

Secondly, you appoint a Health Care Agent as the person designated to make sure your Living Will is given effect by your doctors and the hospital.   The Health Care Agent makes sure that the decision to terminate any life support systems is made at the right time.  By naming one person as the Health Care Agent, your doctor and the hospital do not have to depend on the majority vote of your relatives before they can put your Living Will into effect

Thirdly, you designate a Conservator of your Person in the event the Probate Court must name someone to make health care decisions for you.   The Conservator is accountable to the Probate Court and will be given authority to make all health care decisions, not only those having to do with your Living Will.

Fourthly, you have the opportunity to indicate whether or not you wish to make any anatomical gifts of your organs or body parts.  You can say "yes" or "no" but your wishes will be clear to everyone.

Another important document is the Power of Attorney where you can designate someone to act on your behalf while you are still alive.   When you sign a Power of Attorney you are giving someone else complete power to do anything that you could do if you were personally present: everything from doing your banking, selling your stocks or your home, or doing anything else.  Since this is a powerful document you must carefully select the person you are designating.  There are ways to limit the powers given or only authorize the person to act on your behalf if you are incapacitated or some other condition has been met.

An alternative to the Power of Attorney is the Designation of a Conservator of your Estate.  A Conservator is appointed by and is accountable to the Probate Court for all of your assets and how they are used, invested or spent.  The conservatorship process can be made to be less expensive if the conservator's bond is waived in this document.

Lastly, and most importantly if you have young children, you may designate a Guardian for your minor children.  There are many considerations that must be considered, but you can express your wishes as to whom the Probate Court should appoint to raise your children when both parents have died.   Also, you should consider the new Standby Guardianship procedure which is a simplified procedure to name in advance a temporary guardian if certain specified conditions occur.  The Standby Guardian is often allowed to act immediately upon death (but is limited by law to a limited period of 60 days), so important decisions can be made for the children without going to Probate Court during that difficult time.While the decisions necessary for your estate planning may be difficult , once made there is a comprehensive plan for your family to follow.  

Knowing your wishes very often eases the responsibilities faced by your loved ones when death or a medical crisis arises The attorneys at Solomon, Krupnikoff & Wyskiel, P.C. will be happy to review your own Will and other estate planning documents, offer suggestions for changes or estate tax savings, and put into effect any of the documents discussed in this article.

This Article is presented as a public service by the law firm of Solomon, Krupnikoff & Wyskiel, P.C., Attorneys at Law.  This Article is provided for general information purposes and is not intended as legal advice.  You should not rely on any information presented without consulting your own legal advisor. 

No portion of this Article may be reproduced in any manner, or in whole or in part without the written permission of Solomon, Krupnikoff & Wyskiel, P.C.   Copyright 2016 Solomon, Krupnikoff & Wyskiel, P.C.