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For families, locating your estate planning documents is a critical issue

by Legacy Plan
September 13, 2023

Estate planning documents are intended to provide direction for your loved ones, who will be tasked with making difficult decisions on your behalf. If your family can’t find essential documents like your powers of attorney for health care and finances, living will, last will and testament, trust documents or letter of instruction, they may face legal and financial challenges and potential disputes among themselves. This article will discuss the potential problems that could arise and why it is important to make these documents accessible to your loved ones.

What happens if my family can’t mind my estate planning documents?

There are numerous problems that could arise if your family cannot find your estate planning documents. For example:

  • They may not be able to make medical decisions for you if you become incapacitated.
  • They may not be able to access your financial accounts or property.
  • They may not know your wishes for the distribution of your assets.
  • They may have to go through probate court, which can be a time-consuming, expensive and public process in which you lack control.

To avoid these problems, it is important to make sure that your estate planning documents are updated and reflect your current wishes and circumstances. Your documents also need to be easily accessible so your loved ones can find them promptly when needed. They also need to be legally valid and ideally should be drafted by an attorney to ensure they meet the requirements of your state.

Why is a power of attorney for health care important?

A health care power of attorney is an essential tool in your medical and legal arsenal. It safeguards your personal autonomy, offers legal protection and most importantly provides a sense of emotional relief to your loved ones. The failure to make this document easily accessible to your family can result in delayed medical treatment, legal complications and unnecessary emotional and financial strain. In the most dire situations, having a readily accessible POA can make a significant difference, not just in the quality of medical care you receive, but also in the emotional and financial toll on your family. As such, drafting this document should be a priority, but ensuring its accessibility should be equally imperative.

What is a health care power of attorney?

A health care power of attorney is a legal document that allows you to name someone you trust to act as your agent to make medical decisions on your behalf. This person's powers typically become effective only when you are incapacitated and unable to express your own medical choices. It's a tool to ensure that your health care preferences are honored even if you're not in a position to communicate them.

One primary advantage of a health care power of attorney is that it ensures decisions about your health align with your beliefs, values and preferences. In times of critical illness, doctors need clear directives. A PoA provides this clarity, reducing the likelihood of unnecessary or undesired medical treatments. Without a health care power of attorney, family members might have different opinions about what's best for you, leading to emotional and potentially legal disputes.

But knowing that there's a plan in place offers emotional comfort to your loved ones during a challenging time. For example, without a power of attorney in place, a court might appoint a guardian – who could be a complete stranger – to make decisions for you.

The document also reduces the medical liability of health care workers. Medical practitioners who follow directives from an agent acting under a power of attorney are generally protected from legal repercussions, thus facilitating prompt medical care.

Of course, speed of action is vital in emergency situations, and decisions often need to be made quickly. If your health care power of attorney is not easily accessible, valuable time could be lost, potentially impacting the medical outcome. Without immediate access to this document, medical professionals may hesitate to act upon the wishes expressed by family members, as doing so could expose them to legal liabilities.

Also, simply having the right legal document in place that is immediately accessible can alleviate some of the emotional turmoil family members might experience when making difficult decisions, as they have a clear directive from you.

Why is a power of attorney for finances important?

Financial matters are an integral part of our lives, governing everything from day-to-day expenses to long-term investments. However, what happens if you become incapacitated and are unable to make these critical financial decisions yourself? This is where a financial power of attorney comes into play. It's not just about planning for the future; it's about ensuring the seamless management of your finances when you can't do it yourself. That’s why a financial power of attorney is crucial and why it should be easily accessible to your family in case you become incapacitated.

What is a financial power of attorney?

A financial power of attorney is a legal document that gives another individual – the agent or attorney-in-fact – the authority to make financial decisions on your behalf. The scope can be as broad or as narrow as you wish, encompassing anything from handling your bills to managing your entire investment portfolio.

The moment you are deemed incapacitated, a power of attorney activates, empowering your agent to manage your finances. This quick action ensures that all financial obligations – such as mortgage payments, utility bills and medical expenses – continue to be met without any disruption.

However, without a financial power of attorney, your family may have to go through a cumbersome court process to appoint a conservator to manage your financial affairs. This process is not only time-consuming but also costly and often stressful.

In case of sudden incapacity, quick access to your power of attorney ensures that there's no delay in financial decision-making. Every day lost could result in financial losses or overdue bills. Having the original document readily accessible helps your agent act with full legal authority, averting challenges from financial institutions or family members who may question the agent's role. Additionally, knowing that there's a financial power of attorney in place and where to find it can bring a sense of relief and security to your family, who are already likely grappling with emotional stress due to your incapacitation.

Why do I need a living will?

A living will, often called an advance directive, outlines your wishes concerning medical treatments you would like to receive, or not receive, if you're unable to communicate your wishes yourself. If your family is unable to locate your living will, potential problems await. For example, if health care providers don’t have access to your living will, they might administer treatments that you wouldn’t want, potentially prolonging your suffering. Also, family disagreements could ensue. Family members might have differing opinions on what medical care you should receive, leading to conflict or even legal battles.

Why do I need a will?

Another estate planning document that is vital for your family to locate is your last will and testament. Your will specifies how you'd like your assets distributed after your death and who should serve as guardian to any minor children. Without a will, your estate would be subject to probate and the laws of intestate succession. That means your assets would be distributed according to state intestacy laws, which may not align with your wishes, causing stress and conflict among family members.

Why do I need my trust documents?

Having a trust is an excellent way to ensure your assets are handled according to your wishes during your lifetime and after you pass away. However, the unavailability of trust documents could thwart your intentions and leave your family in a challenging situation that might take years to resolve. Therefore, it's not just enough to have a trust; it's equally crucial to make sure the related documents are readily accessible to those who will need them. This ensures that your estate is managed and distributed in the way you intended, saving your loved ones from additional stress, financial burden and potential legal complications.

If the trust document is unable to be located, assets intended for a trust but not properly transferred will undergo the probate process, nullifying many benefits a trust might offer. Without a trust document as a guiding instrument, ambiguity arises. This could potentially lead to internal disputes among heirs, or even litigation, which is emotionally and financially draining for everyone involved.

Trusts offer the benefit of privacy as they don't go through probate. However, if the trust document is not available, your assets may have to be distributed through probate. This not only makes the details of your estate public but also consumes time and money. Also, the unavailability of trust documents could require hiring legal professionals to untangle the mess, costing your estate and heirs additional time and money. Your family may also need to seek a court's help in administering the trust, which often involves court fees, legal fees and other administrative expenses.

If your trust also included directives regarding guardianship of minors or dependents, the absence of the trust document complicates the appointment of a guardian. This could result in a court deciding who takes on this important role – again, potentially a complete stranger – which may not align with your original wishes.

Is a letter of instruction important?

A letter of instruction is not legally binding but serves as a guide for your family, providing a roadmap of where to find important documents, account password and final wishes for things like funeral arrangements. Without this, your family is left to guess your intentions during an already emotionally stressful time, and missing out on important account details could result in lost assets or unclaimed benefits.

Conclusion

Making your estate planning documents accessible is not just a legal formality; it's a final act of love and care toward your family. Without these essential documents, your family could face emotional hardship, financial loss and legal complications at a time when they are least equipped to manage them. A well-organized, easily accessible set of estate planning documents can serve as a lifeline for your loved ones in their time of need. Take steps today to ensure that your family can easily locate these critical documents; the peace of mind it offers is priceless.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

Phone - 844.445.3422
Email - info@legacyassuranceplan.com
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