Law of the West: Estate planning
by John Scorsine
One of the great religions of the world speaks of the concept of impermanence. There are moments that the recognition of the fleeting time we have here hits us smack in the face. For me, one of those times was a few weeks ago when I went to visit a dear couple. This elderly couple have come to be friends and mentors to my wife and I while we try to start a small horse breeding operation. Driving the three hours to consider the purchase of some horses, I instead found myself confronted with the illness and grave prognosis of one of our friends. His health in steep decline; my heart was truly saddened. I hope that his recovery will be full and prompt. As a lawyer, it became a time to consider the legal issues that surround times like these.
There are four documents that every adult should consider having prepared and as uncomfortable as even that process may be, should review periodically. They are: a will, a durable power of attorney, a durable power of attorney for health care issues, and a dying declaration or “living will.”
A will is the traditional bedrock of anyone’s estate plan. It provides, in its most basic form, for the recipients of your estate and the care and welfare of your children.
The perennial question is “Do I need a will?” It may sound trite, but if you have no property to speak of, have no children to provide for, and love your parents and spouse, you probably don’t need a will. This is because when you die without a will the law has established a process called “in testate succession.”
Your individual property will be transferred, by operation of law, to your closest relatives. A lawyer can explain that scheme of distribution to you and how a small estate is administered through a series of simple affidavits. But, there are many more considerations than that simple analysis provides.
The vast majority of us should have a will and many require a more comprehensive estate plan to ensure that tax liability is minimized. More importantly, anyone that has a child, be it your natural child, an adopted child or a step-child, needs to see an attorney to address a multitude of questions concerning custody decisions, trusts, and inheritance. In this age of “blended” families, this aspect of estate planning can be more complex than the tax consequences of your passing.
The next two documents that you should consider are powers of attorneys. Powerful documents, they don’t take the place of a will. In fact, they expire upon your death and no longer have any effect. But, they allow for your affairs to continue during a period of time when you are unable to attend to them. There are two basic powers of attorney and in some cases they can be rolled into one. The first is a general power of attorney. This document, in its purest form, allows a person to make and execute any decision about your affairs that you could. Whether the outcome of their decision is good, bad or neutral, you agree to be bound by it. It is a very powerful document and a power to be given very hesitantly and deliberately. The second is a power of attorney for health care issues. Its impact literally involves life and death. This specific power of attorney allows the person you appoint to consult with physicians and care providers when you are unable to do so. On your behalf, the person makes decisions concerning your election of treatments, surgery, medications, and general care. Both these documents should be designed to only be effective after you are incapacitated and unable to manage your affairs.
The final document is one that carries with it deep philosophical, legal and religious questions. It is popularly known as a living will. In general terms, it provides to your health care providers your desires as to care during your final days. Typically, it requires that a determination be made that you suffer from a terminal condition, one from which recovery is improbable and from which death is imminent. At that time, the declaration becomes effective and states your intention as to heroic, life prolonging efforts, which only prolong life and do nothing to foster recovery or improvement. In the vernacular, it provides for under what conditions you want your physician to “pull the plug.” In accordance with your wishes, various life support processes are withheld from you and you are allowed to pass.
There are a variety of other documents that you may want to consider as well. Various letters or memorandums of intent can address your wishes as to whether you want to die at home or in hospital, disposition of your body, the donation of organs and burial or cremation instructions. Your attorney can discuss all these issues with you and your closest family members.
No one is given the exact date and time of his or her passing. Wisely, it is a mystery the answer to which is withheld from us. Your death may come as you read this page, today or years from now. It may be anticipated or completely unexpected. There is one certainty … for each of us death will come. With that certainty there is one final gift we can give our loved ones who at that moment will be forced to bear the grief of loss. We can have our affairs in order and provide for them a road map to our desires and intentions. The guide for the legal aspects of this journey is your family lawyer. Each year or two, you should consult with your lawyer and review your estate plans and related documents. The small price of that consultation will provide a gift of immeasurable value to you and your loved ones: peace of mind.
The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.
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