In today's world, as we are continuously receiving new information, it is difficult to have certainty about the future. In this environment, it is important to focus on the things we can control.
The topic of “estate planning” is often dismissed as something to think about “down the road.” However, this thinking can unfortunately result in a missed opportunity for effective and meaningful planning. Estate planning is more than just creating a Will. Rather, estate planning forces you to think about how you want to live and what will happen to your assets when you are no longer able to make those decisions. A well-executed estate plan ensures that at incapacity or death, people can advocate for you, your wishes are honored, and your loved ones have less to worry about after you are gone.
While every estate plan is different and can be carefully curated to fit your unique needs, below is a brief overview about four essential estate planning documents everyone should consider:
1. Will - The Last Will and Testament is what most people think of when they hear the phrase “Estate Planning”. At minimum, everyone needs a current and properly executed Will to determine where your assets will go at the time of your death and who you want to care for your minor children. Your Will names an individual to administer the distribution of your assets. Without a Will, the division of your assets to relatives will be determined by the laws of the State of Illinois.. Importantly, your Will is revocable, meaning it can be changed at any time before your incapacity or death. As even the easiest Wills can be the subject of family fights or mistakes in the writer’s intention, it is important to hire an attorney who has a practice focused on Estate Planning to help you draft and properly sign this document.
2. Power of Attorney for Health Care (“POA”): A POA for Health Care is a legal document which empowers a person (your “agent”) you trust to make crucial healthcare decisions on your behalf at any time you choose and if you become unable to make them for yourself. You must create the Power of Attorney while you are still able to make decisions for yourself; once you lost your capacity, it is too late to sign a POA. Some of these decisions may include, but are not limited to:
Admitting you to a hospital;
Getting you out of a bad nursing home;
Obtaining a second opinion about your health needs;
Discharging you from a hospital;
End of life decisions; and
What happens to your body after death.
Your Power of Attorney document can also limit the decisions your agent can make for you if, for example, some types of treatment are against your personal beliefs. A POA for Health Care can be revoked or amended by you at a future date. However, it is important to always amend or revoke a POA with the help of an attorney.
3. Power of Attorney for Property (“POA”): A durable POA for Property document gives legal authority for your trusted agent, such as a family member or friend, to act on your behalf in financial and legal matters at any time you choose and if you become unable to make them for yourself. This authority can include, but is not limited to:
Filing or fighting for benefits such as Medicaid, Medicare and Veteran’s Aid and Attendance
Hiring caregivers to keep you at home;
Hiring services to take care of your pets if you are out of the home;
Paying your mortgage to avoid foreclosure;
Negotiating and signing a senior living or nursing home contract; and
Filing a lawsuit on your behalf or defending you against a lawsuit;
A Power of Attorney for Property can also be amended or revoked by you at a future date, as long as you have the capacity to still make your own decisions. The document is considered “durable” because your agent can act for you, even after you lose your ability to handle your affairs. Like a POA for Health Care, it is important to always consult an attorney before it is signed, revoked or amended.
4. Revocable Living Trust: A Revocable Living Trust is often used to avoid court probate by giving another person (a "trustee") current or future authority over the trust property. A Trust also keeps your estate private. A revocable living trust is a trust which can be amended or revoked as long as you have capacity. Additionally, a revocable living trust can act act as the main document for the distribution of your assets as you “fund it” with the assets you want distributed upon your death. This is another document that should be carefully drafted and reviewed by an attorney, including any actions to revoke or amend the Trust.
While these estate planning documents will help you create a basic estate plan, this list is not exhaustive, and you should consult an experienced elder law and estate planning attorney to put together a unique estate plan that suits you and your loved ones’ needs. The more you plan for the inevitable, the more security you and your loved ones will feel.
If you have additional questions or wish to get started on your estate plan, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free 30 minute consultation.