You have to be a lawyer to prepare an estate plan but you don’t need to be a lawyer to understand what an estate plan is. There are a core set of documents that make up an estate plan. Each serves a specific purpose. Each gives legal authority to someone you trust to help you managed your financial or health care if you are incapable due to an injury or illness.
Documents that grant financial authority include the following:
- Power of attorney.
- Nomination of conservator.
- Living trust.
- Tax planning trusts.
Documents that grant health related authority include the following:
- HIPAA Release regarding medical information.
- Nomination of guardian.
- Appointment of person to decide the disposition of remains.
Don’t assume that if you are married that you each have legal authority to sign legal documents for each other. To to contrary, absent a written estate plan, the legal presumption is that the you don’t trust anyone, including a spouse. That presumption can be overcome with the documents you sign. The types of documents that are needed will depend on the nature and extent of your wealth. For example, not everyone needs a living trust and not all living trusts need to include estate tax provisions.
For us, the process of guiding you through this process and answering your questions is the best part of the practice of law.
The resulting documents, while important, are the “mechanical” side of any law practice. At Hamers & Okawa, we write our own documents for our clients. We do not subscribe to a legal document service provider. Our approach to the practice of law and our documents are a result of over 35 years of experience in estate planning by each of the attorneys.
That in a nutshell is estate planning: tell us who you trust and at some point we will ask if you are willing to put that into writing.
When we ask who you trust, we are not necessarily asking for the names of those who are honest and trust-worthy. We are looking for a deeper analysis than that. We understand that not everyone is born with the same personality and skill sets. Your decision should be based on a person’s ability to make good decisions, has a full understanding of what it is that is being asked of them to do and has the ability to drop everything and be there for you. Geography can play a role in determining who you should name.
In other words, you look to a person’s strengths rather than to their gender or birth order.
You need to be careful if you choose to give legal authority to someone who has an “alpha” personality rather than someone who will be collaborative and willing to work with you and other members of your family. We define an alpha personality as someone who is overly confident as a decision-maker and is not willing to seek out other opinions, alternative opinions or reach consensus with other family members.
The person you name may or may not be a member of your family but instead could be a close friend. In many cases, naming a professional trustee for managing financial matters may be your best choice for the same reason you choose to use a professional financial planner or stockbroker to assist you in developing and maintaining your investment and retirement assets.