Avoid Probate… While Living Too
By Tracie L. Schmidt
People adamantly convey their desire to “avoid probate” upon their passing. However, most people never think about encountering probate during their lifetime. Many circumstances exist which could lead you through the doors of the probate court long before you ever contemplated having to do so.
No one plans to become incapacitated in an accident, or have his or her spouse rendered physically helpless, mentally unable to make decisions, or unable to take care of his own children. But what happens if the unthinkable occurs? Who would make decisions for you? Would it be your spouse or a parent? Or, perhaps a friend or even a court appointed guardian? Remember the tragic scenario in the Florida case involving Terri Schiavo? Family members (parents and spouse) were divided on whether to continue her life-sustaining treatment.
Unfortunately, a guardianship must very often be established, which necessitates administration costs, guardian’s compensation and attorney fees, all of which can quickly deplete the person’s assets. These types of situations happen all too frequently, but the good news is that there are simple ways to avoid probate while you are living.
Financial Power of Attorney. To ensure that someone is able to take care of your assets, executing a financial POA will allow you to designate a person to act on your behalf to help make financial decisions for you, without giving him or her an ownership interest in your assets. This enables you to give the attorney-in-fact as much or as little control over your finances as you like.
Healthcare Power of Attorney. A healthcare POA is a document that designates someone to make health care decisions for you when you are unable to make them for yourself. The person you have designated in your healthcare POA will have authority to consult with your physician to determine the proper care for you, given your current health condition. However you can provide certain limitations on this authority, as well as additional instructions specific to your intentions, beliefs and medical requirements. In addition to this healthcare POA, you should execute a living will, which memorializes your wishes should you become terminally ill or permanently unconscious. Having both documents enables your family to more easily make decisions during already difficult times. Keep in mind that these documents are completely revocable while you are competent, so you may amend or revoke them at any time should your circumstances change.
For more information, contact Attorney Tracie L. Schmidt at tschmidt@fandr law.com, Attorney Christopher J. Schiavone at firstname.lastname@example.org, or Attorney James B. Dietz at email@example.com.