Estate planning can consist of powers of attorney, probate wills trust and subsets of these elements that involve state, and federal laws. It is essential to speak to an attorney that specializes in this legal area for new laws, changes and amendments.
Wills are one of the most commonly used instruments of estate planning is a will. A will generally contains the following:
1) A legal document that details and directs who (beneficiaries) will inherit what property and other assets of value for example: Real estate, including houses, investment property, personal property (for example bank accounts, securities, jewelry and automobiles/boats/vehicles, pets, contents in safety deposit boxes, etc.) The will may include various special conditions or exceptions before the transferring of any assets take place.
2) To appoint a guardian for minors/children.
3) To specify what funeral arrangement details should be made at the time of death.
All wills must first pass through a legal process called probate. Probate may be a lengthy and expensive process. Probate is the first thing that will happen before any part of the will is executed. As a result, the will's beneficiaries may not receive the entire amount of assets specified in the will all at once, and there may be a considerable delay in the distribution of assets due to the probate process. In the absence of a will or other testamentary instruments, the state of Michigan will distribute an individual's estate according to the laws of 'intestacy' (intestacy is a legal protocol in which assets are divided in a particular order, to provide for a the named beneficiaries for example: The surviving spouse, parents, siblings, etc.).
Without a will upon a death, the government can confiscate a very large percentage of the assets. The family and loved ones of the deceased will likely end up with much less than having a will.
A living will is a written document in which you inform doctors, family members and others what type of medical care you wish to receive should you become mentally or physically incapacitated to where you can not communicate your wishes and direction of healthcare. For example when a person is in a coma for a lengthy period of time without chance of recovery. IMPORTANT: A living will is limited to care during terminal illness or permanent unconsciousness, while a patient advocate may also have authority in circumstances of temporary disability.
When will a living will take effect?
Once a licensed medical doctor completes a diagnoses of you determining that you are terminally ill or permanently unconscious and determines you are unable to make or communicate decisions about your health care.
What are the requirements for a living will?
We strongly recommended the document be entitled, "Living Will;” be dated; signed by you; and signed by two witnesses who are not family members.
How is a living will different from a durable power of attorney for health care?
The main focus of a durable power of attorney is who makes the decision; the focus of a living will is what the decision should be. There can be an overlap with both of these types of documents.
A durable power of attorney for health care may be more flexible because your patient advocate can respond to unexpected circumstances, but a living will might be honored without the presence of a third person making the actual decision.
What might a living will say?
State the direction of what you want to happen in general terms - Provide health care regarding whatever is necessary for your health and comfort, but nothing further. Or it could say you authorize all health care measures be taken to prolong your life medically.
Additional details can be included, such as is to state whether or not you wish specific medical interventions, such as a respirator, cardiopulmonary resuscitation (CPR), surgery, antibiotic medication, blood transfusions, etc. You could authorize experimental or non-traditional treatment. These details should also include designation of food and water administered through tubes if you are incapacitated.
Is a living will legally binding on health care providers?
Although 47 states have statutes giving living wills legal force, Michigan has not passed such a law (always talk to an attorney for current law updates and changes, since laws can change frequently). in Michigan, there is an argument that living wills are binding in the state. No one, however, can provide absolute assurance your wishes will be honored.
If I do not have many assets, is it worth having a living will?
Yes. It is particularly important to have a living will if you don't have a durable power of attorney for health care. Your wishes cannot be honored if they are not known.
Can I have both a durable power of attorney for health care and a living will?
Yes. Your patient advocate can read your living will as an expression of your designated wishes. The living will is essential if your patient advocate were unavailable when a health care decision needed to be made.
NOE: If you have both documents, make sure your wishes expressed in the documents are consistent.