SERVICES

PLANNING

We write power of attorney documents, wills, and trusts to help clients prepare for the future.

Power of Attorney

A power of attorney lets you appoint an agent: somebody who can speak for you when you can’t speak for yourself. We believe that power of attorney documents are the most important papers you can prepare.

With a power of attorney for health care, the person you designate can make medical decisions for you. Of course, one kind of health care decision is whether or when to terminate life-sustaining treatment. But the agent can make many other kinds of decisions as well. Your agent can forbid painful and useless tests, decide about a high-risk or experimental procedure, or have you moved from an unsatisfactory hospital to a better one. A power of attorney for property lets your agent handle your business for you. He or she can pay your bills, file your taxes, and fill out insurance claims.

There’s no need to worry about getting locked in. With a power of attorney, you remain in control. If you are able to speak for yourself, and you think the agent might do something you don’t like, you can fire the agent easily.

For more information please see our memo, Planning for Disability with the Power of Attorney.

Wills

Most people are familiar with wills: they are documents that let you specify what happens to your property following your death. But there are things about wills which most people don’t know that can cause serious problems.

• A will only controls property you own in your own name. It does not have any effect on joint tenancy property (many times this is a home), or on the proceeds of insurance policies or retirement plans with designated beneficiaries.
• A will can be important even if you have no significant assets. Following your death, only a representative appointed by a judge can inspect your medical records, find out what happened to accounts you used to own, or obtain other personal information about you. In a will, you can nominate the representative. Without a will, the representative may be somebody you would not choose.
• A representative you nominate in your will does not become an executor until a judge appoints him or her. The person you nominate has no authority during your lifetime. The powers of an executor are very similar to the powers of the agent under a power of attorney for property. The powers of your property agent generally end when you die, while the powers of the executor don’t begin until then.

Trusts

Trusts are endlessly flexible tools that you can use to solve many different problems.

One common type of trust, often called a living trust, can replace a will and a property power of attorney. In a living trust, the grantor who creates the trust is also a trustee who is responsible for carrying it out and a beneficiary for whom the trust is held. It may seem pointless for you to appoint yourself as trustee for yourself, but actually, living trusts can be very helpful for some people. Still, they aren’t right for everybody. We have a memo we hope will help you decide whether a living trust would be a good choice for you.

Trusts often serve more particular purposes. A special needs trust is created to supplement the lifestyle of a person receiving government benefits, without making the beneficiary ineligible. A survivor’s trust allows a spouse or companion to have the use of the deceased partner’s property, while ensuring that the deceased partner’s intentions are followed when the survivor dies. A charitable trust serves some educational or social purpose; its beneficiaries may be the public at large.

Some trusts are written to obtain some kind of tax benefit. These trusts can be characterized by the kind of benefit they are supposed to provide. Some common tax-reduction trusts are Crummey trusts, marital trusts, family trusts, QTIP trusts, dynasty trusts, and insurance trusts.

All these kinds of trusts are distinguished by the functions they serve. Trusts are also often distinguished by the technical form they take.

• A testamentary trust is created in a will, while an inter vivos trust is created while the grantor is living.
• An express trust is specifically agreed upon, while an implied trust is assumed to exist because of the circumstances.
• The grantor of a revocable trust can cancel the trust and take back the trust property, but the grantor of an irrevocable trust can’t.
• A trust can be written or oral.