Having Just a Will Does Not Protect Your Living Interests and Self-Dignity

Article submitted by Benjamin D. Eckman, Esq.
For more information, he can be reached at 973-709-0909.

At an Elder Law & Estate Planning seminar questions like this are asked: 1) Can anyone guarantee he or she will make it to his or her next birthday? 2) Which is more important to you during your lifetime, your health or your money? 3) With respect to your money, is it more important to you during your lifetime or at death? With regard to the question 1, since there are no guarantees in life, no person can state with certainty that they would be alive for his or her next birthday. Question 2 has 90% of the people answering that their health was more important than their money. Finally, the response to question 3 is generally stating that their money was more critical to them while alive than at death. Although most people have a Last Will and Testament, very few people have or even know about Living Wills and Health Care Proxies, Power of Attorney or a Letter of Last Instruction? So, if their true concern is health during their lifetime and the protection of their money while they are alive then why are so few people protecting this interest? By only having a Will, they are merely protecting their money at death, leaving no protection for their money during lifetime, and certainly no protection for their medical and health care issues.

Living Will & Health Care Proxy
A Living Will is a legal document that makes your medical wishes known to your doctor and family. In it, you indicate the type of care you would want if you were to become terminally ill or permanently unconscious. A Living Will in a sense spells out your personal wishes as it relates to medical assistance. A Living Will is usually coupled with a Health Care Proxy. This document authorizes someone to make medical decisions on your behalf if you are temporarily or permanently unable to do so. It designates someone to make sure that the instructions in your Living Will are carried out. If properly drafted, these documents will minimize family squabbles and will largely reduce the amount of controversy surrounding your medical treatment. After all, isn't your health and dignity most important to you during your lifetime?

Power of Attorney
A Power of Attorney is a legal document that authorizes a person to conduct legal or financial affairs on your behalf should you ever become incapacitated. A "durable" power of attorney ends at the death of the principal, while a power that is not durable ends when the principal becomes incapacitated. This document can either take effect immediately or can "spring" into effect only upon the principal's incapacity. The sole purpose of this legal instrument is to protect your money during your lifetime. Spending a few moments now during competence can save thousands of dollars in court costs later when an action for guardianship is brought.

Letter of Last Instruction
A Letter of Last Instruction allows you to inform your loved ones of what funeral and burial arrangements you have made, or if not yet made, your preferences. Most people think this provision should be included in the Will. This is problematic, since the Will may not be probated until ten days after death. The Letter of Last Instructions also direct your family members as to what assets you have and the location of your Will. Upon your passing, it simply makes settling your estate easier for your heirs.

Last Will & Testament
A Last Will & Testament is a legal document that takes effect upon the death of the testator, the Will maker. If properly drafted and executed, the will is probated and the decedent's assets distributed according to his or her wishes. Thus, all a Will really achieves is how your property will be distributed at your death.

Elder Law and Estate Planning
Elder Law and Estate Planning is to broadly assist "extended living". An elder law practitioner provides the legal information necessary for persons whose lives will extend or have already extended beyond the time when all children are usually out of the house and when regular employment ceases. After the elder law attorney and client complete their work, legal documents have been drafted, tax considerations have been analyzed, and a plan to protect the elder's estate has been implemented.