Wills, Trusts and Powers of Attorney
Wills (or Last Wills and Testaments), trusts, and powers of attorney are some of the legal documents used in estate planning. An “estate” consists of the real and personal property owned by an individual or over which the individual has some control. “Estate planning” is the process of arranging for the protection and transfer of your estate in the event of incapacity or death. There is a misconception that “estate planning” is only for the very wealthy. In fact, estate planning is for everyone.
After you call Maine Elder Law Firm and schedule an initial consultation, we send you a brief questionnaire to collect information about your goals and your unique circumstances. It also prompts you to consider the family members, friends or professionals you might name to attend to your affairs in the event of your incapacity or after your death.
We get to know the potential client at the initial consultation and learn how we might help. Does she want to preserve assets from long-term care expenses? Does he want to distribute assets to named individuals and charities? Name guardians and create trusts for minor children or loved ones with disabilities? Minimize the potential for family conflict and future ill-will? Protect an heir’s inheritance from creditors and predators?
At the conclusion of this first meeting, we offer recommendations and describe the next steps to meet your goals. We discuss pricing and how you can engage our firm to provide legal services. Every estate plan is unique. Some are very simple and some are complex.
At a minimum, a complete estate plan includes a will, a general durable power of attorney, and an advance health care directive. In some cases, a revocable living trust, a life insurance trust, a special needs trust, or other advanced planning documents also may be appropriate.
Powers of Attorney and Health Directives
Financial Power of Attorney
In a financial power of attorney, you (the principal) appoint an agent to manage your financial and business affairs. The authority given to the agent may be effective immediately or “spring” into effect in the future, typically if you become incapacitated. When you sign a power of attorney, you do not give up any of your own rights, and your agent has no power to act against your expressed wishes. You are free to revoke a power of attorney while you have the capacity to do so. In this legal document you give the agent certain authorities which might include the following:
- Spend your money, cash checks and withdraw money from your bank accounts
- Sell your real estate
- File your tax return
- Enter into contracts on your behalf
If you want your spouse or children to be able to take steps to preserve your assets in the event you face the need for expensive long-term care in the future, the existence of a broad, thorough, and valid financial power of attorney will be invaluable.
Advance Health Care Directive
In an advance health care directive you may appoint an individual to be your health care agent. In the directive, you may also state your preferences regarding treatment, particularly life-sustaining treatment, and regarding final arrangements after your death.
With both financial powers of attorney and advance health care directives, you do not lose any of your power to make your own decisions as long as you have capacity. This is very different from an order of guardianship or conservatorship by the Probate Court. When you sign a financial power of attorney or appoint a health care agent in an advance health care directive, you are simply sharing authority with the agent. As long as you retain capacity, you are free to revoke the document or choose another agent.
At Maine Elder Law Firm, we strongly recommend that you work with an attorney to prepare any financial powers of attorney.
You may also want to work with an attorney to prepare an advance health care directive, particularly if you have family members who should not make health care decisions for you, if you anticipate a dispute about your health care or disposition of your bodily remains, or you have unique preferences regarding treatment and are concerned that they might not be honored.
Here is the Advance Health Care Directive Worksheet we offer to our clients.
There are several versions of advance health care directives available to the public at no charge. One that is widely used is the Maine Health Care Advance Directive Form.
Here are other directives offered by different entities:
- Catholic Declaration on Life and Death and Advance Health Care Directive
- Five Wishes offered by Aging with Dignity
- Tool Kit for Health Care Advance Planning offered by the American Bar Association
Learn More about Wills, Trusts and Powers of Attorney
We welcome you to browse our helpful articles on wills and trusts as well as articles on powers of attorney and health directives.
Estate Planning — We're Here to Help
To consult with us about estate planning in Maine and how we can help, please contact Maine Elder Law Firm in Bangor.