The Basics – Estate Planning at its Core

Often clients do not realize they need an estate plan until they talk to us about their situation, their family, and their dreams for the future.   Do I only need to plan for myself and my spouse?  Do I want to plan to leave something for the next generation?  How do I keep from spending all my savings on nursing home care?  How do I leave something for someone in my family with special needs and best protect their future?  We want to help you plan for whatever your dreams might be.

Estate planning documents like wills and trusts are important for handling assets, but we also recommend incorporating healthcare and financial powers. Read what follows for more information or contact us to set up a consultation to help you prepare for whatever the future brings. 

Legal Documents

Powers of Attorney 

At Maine Elder Law Attorneys, P.A., we can prepare power of attorney documents to help meet a variety of needs, including preventing costly guardianship proceedings. 

When do I need a Power of Attorney? Are there different kinds like flavors of ice cream? 

Many people are confused and uncomfortable about the concept of a document called a “power of attorney” (POA)  so some basics:

What is a Power of Attorney?

In a power of attorney document, you give someone the authority to take actions and make decisions on your behalf. These decisions may involve financial matters, legal issues, or healthcare choices, depending on the type of document you set up. 

The authority granted by a power of attorney document can be limited to a particular situation. For instance, you might give someone power of attorney to sign papers during a real estate closing while you are unavailable. Or you might give someone authority to pay bills only from one specific bank account. 

If instead, you grant someone a broad power of attorney, that would give your agent the same authority that you have to access financial accounts, so it is important to be careful to grant power to someone you trust to make reasoned decisions in your best interests. If you are unhappy with your agent, you can revoke a power of attorney or pick another agent as long as you retain legal capacity.

Unlike guardianship situations, when you give an agent the ability to make decisions on your behalf through a power of attorney, you retain your own authority to take action and make decisions so long as you are competent. If the court appoints a guardian for you, you lose your rights and only the guardian will have the authority to make decisions for you.

Financial Power of Attorney

When you establish a financial power of attorney, the person you appoint as agent can take actions such as:

• Paying bills
• Filing tax returns
• Signing contracts
• Buying goods with your money
• Selling property

You can allow the power to go into effect immediately if you want assistance with managing your affairs right away or at a moment’s notice in the future. If you want the authority to only take effect if you become incapacitated, Maine Elder Law Attorneys, P.A. can set up a springing power of attorney that only grants someone the power to act on your behalf in the future. 

Medical Power of Attorney

With a health care power of attorney, you give someone authority to make medical decisions on your behalf. You can also use advance health care directive documents to explain your preferences for treatment, which gives your agent information to guide them if they need to make treatment decisions for you. 

Some Details: 

• It is important to understand that in most cases (not all) powers of attorney by their terms only “spring into effect” when a person is unable to make their own decisions.
• Once they are in effect there are standards that must be met.  
  • FPOA - (applying to business and money matters) there is a fiduciary standard to be met, i.e. the agent (the person acting on your behalf)  must act in the best interests of the person who is unable to make their own decisions. 
  • For a Healthcare Power of Attorney (often known by many names – living will, advance directive, etc.) the requirement is that the agent (the person acting on behalf of an individual) is supposed to act consistent with the wishes of the individual and what they would want.  Most of the time HCPOAs are more difficult to do for a client than financial as it is important to capture the individual’s wishes. 
• Third, powers of attorney are only in effect while the individual delegating the power is alive.  Powers of attorney terminate on death and the Personal Representative (Executor) named in a Will takes over to manage the distribution of the assets of the estate. 

Do You Need Court Approval for a Power of Attorney?

Although a power of attorney document gives your agent legal authority to act on your behalf, that authority does not need to be approved by the court as long as the document meets legal requirements. It is a good idea to have an experienced lawyer prepare power of attorney documents to ensure that they will be honored by financial institutions and medical facilities and to make sure that the powers granted are in line with your intentions. 

What is a Durable Power of Attorney?

A power of attorney is referred to as “durable” if it is set up to remain in effect when the person granting authority becomes incapacitated. In Maine, a power of attorney is presumed to be durable unless the documents expressly state that the authority is terminated by incapacity. 

At Maine Elder Law Attorneys, P.A., we can create powers of attorney custom-designed for your specific needs. To learn more about options, give us a call.

Wills 

Does everyone need a Will? Is it possible to “keep it simple”? 

If you die without a will, the government decides who handles your estate and how your assets will be distributed. Creating a will puts you in charge and avoids a lot of confusion and delay. 

Even if you have a trust to bypass the probate process, you still need a will to cover assets that may not have been placed into the trust. Wills can be intricate and include provisions establishing trusts and naming guardians for minors, but they can also be quite simple. Maine Elder Law Attorneys, P.A. can create the right will for your situation.