Regardless of an individual’s age, financial status, or family situation, below I will discuss what I believe to be the five fundamental documents that provide a strong foundation to any estate plan.
1. Testamentary Document
The cornerstone of any estate plan is the testamentary document. In a testamentary document, you specify your wishes for what happens to your assets after you pass away. The most common testamentary document, of course, is a Last Will and Testament. The other option for a testamentary document is a trust. There are many types of trusts, including a living trust, family trust, revocable trust and irrevocable trust. In both wills and trusts, you essentially state who receives your assets and you appoint an individual to oversee the process of settling your final wishes after you pass away. The testamentary document is vital because without it, state intestate law determines who receives your assets. Each state has a default inheritance plan, referred to as intestate succession, if there is no testamentary document.
Furthermore, if you do not appoint a personal representative for your estate, then it becomes the choice of an Orphans’ Court judge (or a judge in another probate court if located outside of Maryland) to determine who should be appointed to settle your estate. Individuals are best suited to decide who the right person is to handle the duties of an executor in their future estate, and just as importantly, who the wrong person is. When a person dies without a testamentary document, the judge, who does not know anything about the family – such as who is and is not trustworthy – nonetheless must make this decision. This is a decision that judges would prefer not to have to make.
2. Healthcare Power of Attorney
A healthcare power of attorney is a legal document in which you appoint a decision maker – i.e. an “agent” – to make medical and healthcare decision on your behalf if you are unable to make the decisions yourself. This document would be used if you are too sick to make your own medical decision and often includes situations where an individual is hospitalized, in a coma or has dementia, Alzheimer’s Disease, or otherwise lacks mental capacity.
Often, people do not realize that without this legal document, there is no default fall back option regarding who can make decisions on your behalf if you are unable to do so yourself. Therefore, this is an essential document in all estate plans. A healthcare power of attorney is only in effect until death; therefore, once someone passes away, their healthcare power of attorney is void and rendered meaningless.
3. Financial power of attorney
Similar to a healthcare power of attorney, a financial power of attorney allows you to appoint someone to make financial and legal decisions on your behalf if you are unable to do so. As with the healthcare power of attorney, the person appointed in a financial power of attorney is also called an agent. Appointing a healthcare agent to step into your shoes permits this person to handle a range of financial tasks, including paying your bills, signing your checks, buying and/or selling your assets and filing your tax returns. In both forms of a power of attorney, the agent steps in and acts if you are not able to do so. A financial power of attorney is only valid until the individual passes away. Again, this document is rendered void and meaningless upon death. The two powers of attorney are two separate documents.
4. Advanced Medical Directive
An Advanced Medical Directive, also known as a Living Will, often accompanies an individual’s healthcare power of attorney. The Living Will is a medical document where you express your decisions regarding treatment (or lack thereof) in end-of-life scenarios.
One of the most highly publicized legal battles featuring end-of-life decisions was the case of Terri Schiavo. Ms. Schiavo was in an irreversible persistent vegetative state. Her husband and legal guardian stated his wife would not have wanted prolonged artificial life support without the prospect of recovery. Ms. Schiavo’s parents disputed the husband’s assertions. Ms. Schiavo had no Advanced Medical Directive or other document that expressed her wishes regarding end-of-life decisions, which ultimately resulted in a prolonged series of legal challenges.
In this medical document, you decide for yourself that if you get to that point, you either want artificial life support, or conversely, whether you want life support withdrawn. This is unmistakably an extremely difficult situation, but it is best to make your wishes known so you do not to leave your loved ones forced to make these decisions themselves.
5. HIPAA Release
While not as commonly used as the other documents on this list, a HIPAA release nonetheless is a vital tool in any estate plan. Without a HIPAA release form signed by a patient, the patient’s protected health information cannot be shared with any other individuals or organizations, with limited exceptions, i.e., routine disclosures for treatment and certain payment or healthcare operations. The release of medical records without a proper HIPAA authorization form is a HIPAA violation.
Since it was first signed into law in 1996, HIPAA regulates privacy and protections of medical records and information. This law undoubtedly offers numerous benefits to patients, specifically as it relates to medical privacy. However, a problem can occur due to this confidentiality as HIPAA law often forbids doctors and hospitals to release information to anyone. For example, if you are hospitalized and a family member contacts the hospital, the hospital staff cannot release any information regarding your condition. In emergencies, this is often not good for the family in such a stressful situation.
For this reason, a HIPAA release is often a good tool to pair with a healthcare power of attorney. In a HIPAA release doctors, nurses and hospitals are essentially provided a list of individuals in which they have permission to discuss your condition and treatment. With a HIPAA release, you decide who the decision makers are to put on your list, giving medical professions permission to discuss your condition with these select few.
Zachary W. Worshtil is a Partner at the Law Office of Ralph W. Powers, Jr., P.C. He is also a member of the PGCBA Board of Directors and co-chair of the Probate, Estates, Trusts & Elder Law Section. He concentrates his practice primarily in estate administration and probate litigation.