Four Documents We All Should Have, or Why You Really Do Need a Will
It used to be that people were worried that if they didn’t have a will, all their assets would go to the state. Most people are now aware that this doesn’t happen, but there is a great deal of misinformation still around. This article will explain the practical aspects of how to ensure that your wishes are carried out after you are gone or are unable to make decisions for yourself.
Every adult should have:
- A will;
- A General Power of Attorney;
- A Power of Attorney for Health Care; and
- A Living Will.
A will is important, because it allows you to decide what will happen to your personal effects and your assets. Perhaps there is a favorite item that you really want someone to have. Unless you make provisions for that item or give it to that person prior to your death, there really is no legal means for that person to enforce your wishes, even if you have made them known.
Married couples will probably leave the majority of their estate to their spouse or to their children. Even though they may leave most of their assets to their spouse or children, there may be items that they want to go to a particular person. In Colorado, you can draft your will to provide for a separate writing bequeathing certain tangible personal property outside of the will. This allows you to draft a will, which disposes of all real property and cash assets, but does not make specific bequests of your personal property. The personal property, which you may not have thought about at the time you executed your will, can be set forth in a separate writing, which you can keep with you and make additions and subtractions to from time to time.
Single adults without children and couples without children need to seriously consider where their assets will go if they should die without a will. By statute, if there is no surviving spouse or surviving children, the assets will pass to the parents. If there are no surviving parents, the assets pass to any issue of the parents, and so on. The problem that may be encountered here (besides the obvious problem that these choices may be inconsistent with your wishes) is that a great deal of the assets may be dissipated by legal fees if there is a dispute among the family members. The other obvious problem is that if a single adult has a significant other that he/she wishes to have certain items or assets, without a will, this person is left with no legal right to your assets. Your family members may or may not include your significant other in the distribution of your assets, regardless of your intent.
A unique problem to couples injured in an accident, who have no surviving children and no will, is that their assets may pass to the spouse who survived the earlier dying spouse for 120 hours. In that case, all of the couple’s assets may go the family of the spouse who out-lived the other spouse for 120 hours, and the family of the spouse who died earlier may not be entitled to any part of the estate. This is probably not the intention of either spouse. There may be items that each had, which should most appropriately be conveyed to their respective families. Unfortunately, in the shock that happens after a death, it is not possible to predict how the surviving relatives will react and whether items will be properly distributed.
A will allows you to control the distribution of your assets after you are gone and ensures that certain special items will go to the person you choose.
General Power of Attorney
A general power of attorney authorizes the person designated to act on your behalf. You can execute a general power of attorney and leave it with an attorney with instructions that it is only to be given to your agent if you become incapacitated. Another alternative is to draft the general power of attorney to take effect only if you are incapacitated and unable to make decisions for yourself. You should have several originals of the power of attorney so that if a bank or other entity requires that an original be kept in their file, your agent will not be without an original.
The general power of attorney is important, because it gives the agent access to your bank accounts and assets without the need to petition the court for appointment of a conservator and/or guardian. If you are incapacitated, your agent will need to pay your monthly bills for you. This can be accomplished with a general power of attorney without the need for court intervention.
Power of Attorney for Health Care
This document gives the designated person the right to make decisions about your medical treatment, if you are unable. The Power of Attorney for Health Care is drafted in conjunction with a living will. The Power of Attorney for Health Care allows your designee to sign for surgery or other medical necessities, if you are unable and need the treatment in order to recover.
The living will sets forth your wishes regarding medical care, should you not be able to communicate and there is no hope for recovery. It addresses whether you wish to have life support systems or nourishment, and it gives your doctor and other medical personnel guidance on how to best treat you when they determine that you cannot survive without life support or are in an irreversible coma.
The documents above will help you determine the quality of your life and the disposition of your assets and tangible personal property.