Why Do I Need a Will (and Power of Attorney and Advance Directives)?

There are generally three basic estate planning documents that most clients will have explained during an initial consultation. They are the Will, Durable Power of Attorney and Advance Directives.   

A will is the document that directs what happens to the deceased’s probate property upon death. The non-probate property is disposed outside of the will by virtue of the operation of law or contract. For example, the home titled joint with right of survivorship goes to the surviving co-owner and not under the will to be disposed of according to the terms of the will. The will directs the non-probate property to the rightful owner, allows the appointment of guardians for minor children, allows for the incorporation of trusts for the benefit of minors or others for whom the testator sought trust protection, and appoints trustees to manage and executors to administer the estate. The will is an ambulatory instrument which means it can be changed any time prior to incapacity or death. The testator can revoke a will by defacing or destroying it. If someone dies without a will, there are state intestacy statutes that govern dying without a will and to whom the decedent’s property will go.

Though widely used for other purposes, the durable power of attorney (“DPA”) is helpful in estate planning because it is the way for someone (the principal) to voluntarily appoint another party (the agent) to act on his or her behalf and it survives incapacity. Unless it is revoked or superceded, the DPA continues until death, though it may be advisable if possible to execute a new document periodically to avoid potential delay and additional documentation requirements. The ability to have a new DPA executed is subject to the principal still having capacity. The agent has the authority to conduct any of the powers listed in the DPA. The powers that are incorporated and listed in the DPA are defined in state statute. The statutory form is generally recognized and accepted which makes it desirable to use.  The durable power of attorney is effective upon execution, with broad and sweeping powers. Because it is a broad document conferring potentially sweeping powers, it should be drafted for the purposes intended by an attorney. If the principal were to become incompetent before executing a durable power of attorney, it would be necessary to apply to the probate court for a conservator, which adds cost and takes time, though a conservator needs to be appointed if there is no suitable agent.

CT Advance Directives include the living will and health care instructions and the appointment of health care representative(s).  The living will is the document that conveys your personal wishes concerning your health care should you be unable to speak for yourself. If you were to be in a terminal condition or permanently unconscious, it may state your preference regarding providing or withholding life support.  The purpose of the Appointment of a Health Care Representative is to appoint certain individual(s) to make health care decisions on your behalf should you lack the capacity to do so.  Your wishes concerning treatment, procedures, and life support systems should be shared with the health care representative(s) in the event they are called upon to make health care decisions for you.

The will, power of attorney and advance directives are mechanisms to make plans for your health, personal finance, and estate decisions. These documents may be revised and updated as long as you have the mental capacity to do so. The process of doing some basic estate planning, confirming information concerning the probate and non-probate assets, and beneficiary designations generally encourages organization of one’s estate plans, finances, and personal records that may benefit the surviving spouse and family or the fiduciary charged with administering the estate.



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