This is an unprecedented period of time as the COVID 19 virus continues to affect lives and businesses across our nation. Amid the uncertainty, proactive steps should be taken to be prepared and provide peace of mind. Ensuring important legal documents are in place and making crucial decisions in advance are steps every person should take to prepare for any time in which you can no longer make your own medical decisions orother important decisions. It is also important to have a plan in place for any minor children, family members, or other loved ones who are dependent on you for support.
These are the 7 legal documents everyone should have:
- Will – A will or Last Will and Testament states how assets will be distributed upon death. The will also names a person to serve as the personal representative, also referred to as an executor, who will administer the estate and distribute the assets. The will also identifies who will serve as guardian for minor children.
In order for a will to have any effect, the will must be admitted to probate. Probate is the court process for determining heirs, the validity of the will and distribution of assets. In order for a will to be valid, it must meet the requirements which are set forth in the Oklahoma statutes.
- Trust – A trust, also referred to as a revocable trust or living trust, is similar to a will in that it directs the disposition of assets at death. The trust names a person called a “Trustee” who follows the instructions of the trust document and has the power to make distributions from the trust in accordance with the terms of the trust. The individual creating the trust typically serves as the Trustee during the individual’s lifetime, so long as they are not incapacitated.
Assets must be transferred to the trust during the individual’s lifetime in order for the trust to control the assets – a process called “trust funding.” A properly funded trust has the advantages of avoiding a guardianship proceeding if an individual is incapacitated and avoiding probate upon the individual’s death. Read more here for more information about the differences between a will and a trust.
- Appointment of Guardian for Children – Perhaps the most difficult decision for parents of minor children is naming a person or persons to care for those children if the parents are no longer able to care for them either due to incapacity or death. Even though it may be something that you do not want to think about, it is important to have a plan in place for who will care for your children. If no plan is in place, it will be up to the Court to decide. In Oklahoma, a guardian for minor children can be named in an individual’s will or in a separate document designating the person(s) named to serve.
- General Durable Power of Attorney – A general durable power of attorney grants confers certain powers to the named agent or attorney-in-fact. The agent will have the ability to make decisions and exercise powers with respect to an individual’s assets. This document should be a very comprehensive document and should include the power to sell real property, control bank accounts and business interests and direct investment and retirement accounts as well as handle incidental things like utilities and mail. Because this is a very broad power, great consideration should be given in to the person you name as your agent.
- Health Care Power of Attorney – A health care power of attorney names a person to serve as health care representative and confers the power to make health care decisions for you in the event you are unable to make your own healthcare decisions. These decisions include authorizing surgery or other medical procedures, requesting pain relief, making arrangements for long-term care and hospice as well as most other healthcare decisions. You should communicate your wishes with the person you select to be your health care agent.
- Advance Directive for Health Care – An Advance Directive for Health Care, also referred to as a Living Will, describes certain end-of-life situations and provides choices regarding the life-sustaining treatment and the administration of artificial nutrition and hydration. A health care proxy named in the document is the person who will carry out your wishes. The Advance Directive also contains selections for organ donation.
- HIPAA Authorization – This document authorizes the release of your protected health information and records to the persons you name in the document. It also permits physicians and hospitals to communicate with the persons you name regarding your medical condition.
Each of these documents are part of a comprehensive estate plan and should be implemented to provide you with peace of mind during this stressful time.
A Word of Caution
It may be tempting to prepare these documents using forms found on the internet, legal websites or at office supply stores, but please resist this temptation to prepare these documents on your own. Estate planning documents are about more than just filling out forms. Wording and even the placement of a comma can make a difference in an estate plan. Ambiguities in documents can create confusion and lead to litigation. An experienced attorney can provide guidance on making these important decisions, draft documents that will carry out your wishes as well as document your state of mind and intent at the time of signing the documents.
Please don't wait until it is too late. Get a plan in place today. Contact our office by calling 405-701-5355 to set a consultation with one of our experienced estate planning attorneys.