Today more than ever, life comes at us fast. We can intend to prepare in advance, but sometimes that does not happen.
Unfortunately, when it comes to our legal affairs, we sometimes can find ourselves unprepared with only weeks, days or hours left to act, usually because of a medical crisis. Unfortunately, attorneys are often not immediately available, usually because they have previously committed to perform other work. However, until you can conference with an attorney, your legal priorities (after scheduling the attorney appointment) in this context can be pretty straightforward.
First, you should execute two “powers of attorney.” An effective power of attorney is a written agreement that allows someone to sign documents and make decisions for you. Generally, there are two types of powers of attorney that you will want. One power of attorney addresses financial decisions. The second power of attorney addresses healthcare decisions.
A living will or do not resuscitate or “DNR” can also be signed, but a comprehensive healthcare power of attorney will allow your agent to sign a DNR for you, if necessary. The financial and healthcare powers of attorney need not be separate documents, but they traditionally are presented in separate documents.
Powers of attorney are crucial in this context, because someone facing a medical crisis is more likely than someone else to find themselves unable to make decisions due to another medical event occurring that could diminish capacity to make decisions. For instance, someone who has had a stroke or heart attack is perhaps more likely to have another complication shortly thereafter that could cause the loss of certain mental abilities. And, as medical conditions deteriorate, more medication can be administered, which can also affect the legal capacity to sign documents.
Second, avoid simply giving away everything you have. The idea seems simple enough: If I give it away while alive, those items will not have to be dealt with when I die. This strategy is almost never ideal for two reasons. Typically, giving away real estate or investments before you die can sometimes lead to bigger tax bills for the new owners who sell the property after you die. Also, after gifts are made, the receivers of the gifts can sometimes be forced to give the gifts back, particularly if you have large debts or expect to have large debts due to impending medical treatments.
Third, prepare a written list of all of your assets. How many bank accounts do you have at what banks? What real estate do you own? How many vehicles are (or may be) in your name? The list will allow the attorney to prepare non-probate transfer documents as well as a will to handle items that are not distributed outside probate. The attorney will also likely improve the powers of attorney you have signed, potentially asking you to signed more thorough versions.
It is unquestionably best to make legal preparations before a crisis arises. However, if you face a crisis, focus on these priorities to make the most of your time before your attorney takes over.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.