Medical Power of Attorney 101

What’s a medical power of attorney? What’s the difference between a medical power of attorney and a living will? Do I need a medical power of attorney? When does it go into effect? Let’s answer these great questions.

Every adult needs 4 basic estate planning documents: (1) a will (and/or trust), (2) a living will, (3) a durable financial power of attorney, and (4) a durable medical power of attorney.

  • A medical durable power of attorney authorizes a person to act on your behalf to make medical decisions for you while you are alive, but unable to act, such as authorizing surgery or a medical procedure if you are unconscious or in a car wreck.  The person is called your attorney in fact and is your agent.  We customize powers to parallel the desires expressed in your living will. A medical power of attorney includes a HIPAA privacy release and also allows the person to talk with your doctor, pick up medicine, etc.
  • Like a medical power of attorney, a living will only applies during your life, but in the extraordinary circumstance of your incapacity or terminal illness. Your living will tells doctors and family members when and how you want to be kept alive or have life sustaining/prolonging medical procedures done for you if you become incapacitated, in a coma, or are terminally ill.
  • The “durable” part means that the power survives your disability or incapacity – if you’re sick, in a coma, or out of town, the power of attorney works, so long as you’re alive. Powers of attorney can be “springing” or “immediate,” which is about the trigger time: an immediate power of attorney starts when you sign the document (so your agent has full power to act for you starting when you sign), while a springing power of attorney requires two doctors to certify you’re incapacitated before your agent can act on your behalf (adds an extra layer of accountability, but can also delay things badly if a medical or financial decision needs to be made immediately).
  • Yes, you need a medical power of attorney. Any adult who goes to the doctor, the hospital, has surgery, takes medicine (or is on prescription drugs), or has ever seen a HIPAA privacy release needs a medical power of attorney.

My law firmJohnson Law KC LLC, can help you get your medical power of attorney and the rest of your estate plan done quickly and affordably. Call (913.707.9220) or email us (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2015, Stephen M. Johnson, Esq.

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Financial Power of Attorney 101

What’s a financial power of attorney? How is it different from a will? What if I become disabled or incapacitated? Do I need a power of attorney? Does it go into effect immediately or only after I become disabled or incapacitated?

Every adult needs 4 basic estate planning documents: (1) a will (and/or trust), (2) a living will, (3) a durable financial power of attorney, and (4) a durable medical power of attorney.

  • A financial durable power of attorney authorizes a person to act on your behalf to make financial decisions for you while you are alive, but unable to act, such as paying bills, depositing monies into bank accounts, transferring monies between accounts, and related financial transactions.  The person is called your attorney in fact and is your agent.  State law provides some standard provisions, and we can tailor optional powers to allow your attorney in fact to make gifts, sell your house with your spouse, establish trusts, or similar things.
  • A Will only applies after you die, but a financial power of attorney only applies while you’re alive.
  • The “durable” part means that the power survives your disability or incapacity – if you’re sick, in a coma, or out of town, the power of attorney works, so long as you’re alive.
  • Yes, you need a power of attorney if you’re an adult, have bank accounts, a house, a business, or other assets, travel (especially internationally), or receive income or have bills that may need to be paid in your absence.
  • Powers of attorney can be “springing” or “immediate,” which is about the trigger time: an immediate power of attorney starts when you sign the document (so your agent has full power to act for you starting when you sign), while a springing power of attorney requires two doctors to certify you’re incapacitated before your agent can act on your behalf (adds an extra layer of accountability, but can also delay things badly if a medical or financial decision needs to be made immediately).

My law firmJohnson Law KC LLC, can help you get a financial power of attorney and the rest of your estate plan done quickly and affordably. Call (913.707.9220) or email us (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2015, Stephen M. Johnson, Esq.

Living Wills 101

What’s a living will? What’s the difference between a Will and living will? Do I need a living will? When does it go into effect? Does a living will avoid probate? Let’s answer these great questions.

Every adult needs 4 basic estate planning documents: (1) a will (and/or trust), (2) a living will, (3) a durable financial power of attorney, and (4) a durable medical power of attorney.

  • A Will goes into effect at your death, appoints an executor to handle your estate, and specifies who receives your property. A Will has some custom provisions for your unique family situation and desires, with standard provisions defining your executor’s powers and giving them broad latitude to handle your last affairs under state law.
  • A living will isn’t better than a regular will (or an upgrade to a will) – they’re both vital, but they do different things, like a hammer and a screwdriver.
  • A living will only applies during your life, when you’re incapacitated or terminally ill. Your living will tells doctors and family members when and how you want to be kept alive or have life sustaining/prolonging medical procedures done for you if you become incapacitated, in a coma, or are terminally ill.
  • Living wills avoid situations like the Terry Schiavo or Nancy Cruzan tragedies. (In those cases, the families had a tough time since neither woman had specified what treatment they wanted in writing. Without instructions, it got left up to the courts and/or family members to make the “pull the plug” or life support choices.) The family still has to make the decisions, but with a living will, they have guidance from you about how you want to be treated, what should/shouldn’t be done. Living wills can include do not resuscitate (DNR) orders, comfort care if you are terminally ill, no life support, hospice, and die at home instead of a hospital preferences, or can be customized to reflect your unique wishes and moral convictions about end of life issues.
  • A Will may need to be probated, but a living will avoids probate, since it only applies during your life.

What’s the difference between living wills and medical powers of attorney? Medical powers of attorney are for more routine or common health care decisions or treatments than the living will, which only applies in extraordinary situations. A medical durable power of attorney authorizes a person to act on your behalf to make medical decisions for you while you are alive, but unable to act, such as authorizing surgery or a medical procedure if you are unconscious or in a car wreck.  The person is called your attorney in fact and is your agent.  We customize powers to parallel the desires expressed in your living will. A medical power of attorney includes a HIPAA privacy release and also allows the person to talk with your doctor, pick up medicine, etc.

My law firmJohnson Law KC LLC, can help you make a Will and get your estate plan done quickly and affordably. Call (913.707.9220) or email us (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2015, Stephen M. Johnson, Esq.

Wills 101

What’s a will? Is a living will better than a regular will? Do I need a will? Does a will avoid probate? Let’s answer these great questions.

Every adult needs 4 basic estate planning documents: (1) a will (and/or trust), (2) a living will, (3) a durable financial power of attorney, and (4) a durable medical power of attorney.

  • A Will goes into effect at your death, appoints an executor to handle your estate, and specifies who receives your property. A Will has some custom provisions for your unique family situation and desires, with standard provisions defining your executor’s powers and giving them broad latitude to handle your last affairs under state law.
  • A living will isn’t better than a regular will (or an upgrade to a will) – they’re both vital, but they do different things, like a hammer and a screwdriver.
  • Yes, you need a Will. A Will ensures your property and assets are distributed to the people you care about and that your finances and final affairs are taken care of well. If you don’t execute a Will (or trust), your property passes under the default options of state law. By making a will, you choose who gets what; by not making a will, Kansas or Missouri chooses who gets what.
  • No, a will does not avoid probate. In fact, a will has to be submitted to probate to be legally binding after someone dies. But depending on the size and complexity of a person’s estate, probate may be a simple, quick deal.

Probate and estates. When a person dies, all their assets and liabilities become their estate. An estate usually goes through the county probate court, unless (1) the deceased person’s assets all pass outside of probate or (2) the size is too small for probate. Probate has a bad reputation in most people’s minds, but it’s often actually fairly quick and inexpensive. Probate can sometimes take several weeks or months depending on the family dynamics and estate’s complexity. The family hires a lawyer to talk with the judge, say this person died, here are their assets, here’s the will, and we want to follow the will to distribute the assets. If everyone gets along, the judge usually signs off and things get settled shortly.

Avoiding probate. Assets can pass outside of probate, by trust, beneficiary deed, transfer on death deed, pay on death, beneficiary designations, or joint tenancy. Married couples often own a house as joint tenants, so the surviving spouse/tenant gets the house without probate. Beneficiary deeds and transfer on death deeds are different names for the same thing, where the owner specifies who gets the property upon their death. Pay and death and beneficiary designations are used for life insurance, retirement accounts, and accounts at banks or other financial institutions.

Do I need a trust? Can I avoid probate without a trust? Clients can save money and avoid probate by being sure everything is titled to pass outside probate upon their death (a piecemeal approach). Trusts can be more convenient, an ownership umbrella for everything that avoids probate, but many clients can get the same benefits without paying for the extra documents/paperwork.

Small estates. Kansas and Missouri both have exceptions for “small estates” – under about $40,000. So if someone dies with less than $40,000 in their name, there’s a simple affidavit their relatives take to the bank to transfer the assets, without having to step foot in court.

What about Legal Zoom, Rocket Lawyer, or other inexpensive services? Let’s answer the question everybody’s thinking, but nobody wants to ask. You get what you pay for, and hiring a lawyer is affordable. My firm has seen Wills and estate planning documents done by Legal Zoom, ones done by well known local firms, and homemade Wills. My firm often ends up fixing estate plans done by Legal Zoom or homemade/library forms, since they’re not prepared by licensed local attorneys, they’re usually not properly signed, witnessed, or notarized, they’re often missing vital ingredients, have complicated legalese, or have excess provisions clients don’t want, need, or understand. One document talked about the California Probate Code when the document was supposed to avoid probate and the client had no connection or property in California. Why? Because an automated Internet service didn’t know any better, but we quickly fixed the document for the client. (Some online legal services have law professors review their forms, but law professors often aren’t licensed attorneys or don’t have any practical experience meeting with clients and preparing documents, so they may not know what to look for, what traps to avoid, and how to customize documents for clients’ unique needs and family situations.) Many clients are surprised by how affordable a Will is – do yourself and your family a favor and hire a local lawyer to do your Will.

My law firmJohnson Law KC LLC, can help you make a Will and get your estate plan done quickly and affordably. Call (913.707.9220) or email us (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2015, Stephen M. Johnson, Esq.