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FAMILY ISSUES AND PERSONAL MATTERS: PLANNING FOR THE FUTURE
The law often impacts events which we consider "family matters" and can profoundly affect these relationships.
When planning for marriage, it is awkward, if not impossible, to consider the
possibility of divorce. However, divorce has become a common occurrence in
today's world, and it is only prudent to recognize the possibility of that outcome. If
you or your family has wealth, or even sentimental personal property that you wish to
remain in your family, you should consider consulting an attorney regarding a
prenuptial agreement. A prenuptial agreement is a contract entered into prior to
marriage, at a time when you and your intended can thoughtfully consider matters
together, which establishes how your assets will be divided in the event of divorce.
BIRTH OR ADOPTION OF A CHILD:
As a family begins to grow, it is very important to prepare for this event with your
attorney. While preparing the nursery, you should also be considering the legal
changes to be made in your life, such as the preparation of or revision of your Will to
designate a guardian, to set up a trust for your new child and/or to provide
specifically for your adopted child to assure he or she is clearly included as a
beneficiary. As your children grow, you or your children's grandparents may want to
gift money or property to them. Such gifts may have tax implications for all involved
and, thus, should be discussed with an attorney who specializes in that area.
PLANNING FOR INCAPACITY OR DEATH:
There is probably no legal preparation in everyday life that is so overlooked as that of planning for your death or the possibility of your incapacity. Certainly, these are not pleasant subjects for any of us; however, it is very important that you plan for these events so that your wishes will be carried out in any eventuality.
PREPARATION OF WILLS:
Personal Wishes Respected: Probably the most important reason to prepare a Will is to assure that your intentions are respected regarding the distribution of your estate. Often, persons are not aware that state laws govern distribution of property in the absence of a Will and that these laws may provide for a completely different distribution from the one they would have intended.
Tax Considerations and Implications: It is extremely important to consult an attorney to assure that transfer taxes are minimized at the time of your death.
Provision for Minor Children: Preparing a Will is particularly important in situations involving minor children. A Will allows you to appoint a particular individual to care for your children in the event of your death and to set up trusts for their benefit.
Continuation of a Business: When you own a business and desire that control continue in a specific individual, that the business be sold in a particular manner, or that the business be bequeathed to a particular individual, your Will assures that these objectives will be accomplished.
LIVING TRUST AS AN ESTATE PLANNING ALTERNATIVE:
There are a number of self-help legal guides which encourage the use of living trusts
to "avoid probate." When you execute a living trust, generally, you place all of your
assets into a trust of which you are the beneficiary and over which you have sole
control during your lifetime. Upon your death, the assets are transferred to the
successor beneficiary or beneficiaries you have chosen. While this vehicle may be
the right choice in certain situations, it is not advisable in all situations. There are a
number of legal implications which should be discussed with your attorney to
determine their appropriateness to your particular case.
The proceeds of insurance policies are independent of your probate estate and, upon
your death, pass directly to the designated beneficiary. There are situations where
selection of that beneficiary has important legal and tax implications. For this reason,
your life insurance needs and the beneficiaries of your policies should be discussed
with your attorney at the time you discuss your Will to assure that you receive the
utmost benefit from your estate plan and that your expectations regarding how your
property will pass to your loved ones are realized.
POWERS OF ATTORNEY:
General or Limited Durable Power of Attorney: If, at any time, you desire
another individual to be able to act for you, either in specific situations or in the
general handling of your affairs, you may legally designate someone to act on your
behalf. In the past few years, some very specific legal requirements have been
enacted which must be followed in designating someone as your "attorney-in-fact"
(which is what your representative is referred to from a legal standpoint), and it is
recommended that you consult an attorney in order to make such a designation. This
is particularly important if you intend to allow another person to act on your behalf in
transferring real estate. Although a traditional General Power of Attorney terminates
your representative's authority upon your incapacity, a Durable Power of Attorney
does not terminate and the authority of your attorney-in-fact will not be affected by
your incapacity. For peace of mind, we recommend that adult individuals of all ages
consider execution of this type of document.
Health Care Power of Attorney: It is important, in the event of an incapacity
which leaves you unable to make health care decisions on your own behalf, that you
have chosen someone close to you, who knows and will be able to carry out your
wishes regarding these matters. You can do this by signing a Durable Power of
Attorney for Health Care, which authorizes such a person to consent, refuse to
consent, or withdraw consent, on your behalf, to health care treatment, services, or
procedures. By preparing this type of document while you are in good health, you
can assure that only that person or persons you select will be permitted to act for you,
and you can set forth the persons or physicians whom you wish to make the decision
regarding your incapacity.
DIRECTIVE TO PHYSICIANS:
In recent years, much has been written about the execution of so-called "Living
Wills," which indicate a person's desires regarding the use or non-use of
extraordinary means to extend life. These documents, which are also called
Directives to Physicians, are now required to be routinely provided to doctors at the
time of hospitalization. However, there are a number of legal issues related to the
enforceability of these documents and other considerations which, if discussed with
your attorney at a time when you are not under the time constraints and emotional
and physical upheaval that is natural at the time of a hospitalization, will allow you to
make a more informed and thoughtful choice about this very important issue.