Foundational Documents

This Blog will discuss the essential documents that make up a comprehensive estate plan. By “comprehensive,” I mean all those that are needed to ensure the smooth transfer of your assets upon death and to ensure that your wishes regarding your personal health care are followed in the event of critical illness, incapacity or at end of life. I will leave the in-depth discussion of each of these documents for a separate Blog article.

A Last Will & Testament is the document by which you appoint a personal representative or executor to manage your assets upon your death. You may also use a Will to appoint a guardian for minor children. Wills are governed by state law, so the requirements for signing (execution) and preparation will vary by state. Some states permit a “holographic” (handwritten) Will while others do not. In some states a Pour-Over Willwill allow you to “pour over” into your trust probate property that was inadvertently left out of the trust.

Trusts come in almost as many flavors as Howard Johnson’s ice cream. (As an interesting aside, the celebrity/chef Jacques Pèpin worked in the Howard Johnson commissary for many years after coming to the U.S. and credits that experience for much of his knowledge of commercial food preparation.) The most common trust is the Revocable Living Trust, in which the grantor of the trust serves as trustee and retains control over the trust assets. There is the Irrevocable Trust in which a trustee other than the grantor, has physical title to and management responsibility for the trust assets. There are many other types of trusts with specific purposes, all of which, together with the above trusts, will be discussed in greater depth in a subsequent blog.

Powers of Attorney generally come in three forms: General Durable Power of Attorney, which vests authority in an agent or attorney-in-fact to make financial decisions for the principal (the person granting the power). The Health Care Power of Attorney appoints an agent to make health care decisions for the principal when he or she is unable to express those wishes to a caregiver. The Mental Health Care Power of Attorney grants specific authority to the named agent to make decisions regarding the principal’s mental health care such as psychiatric evaluation, treatment and commitment. Each of these will be discussed in greater depth in a subsequent blog.

HIPAA Release Authorization. Since enactment of the Health Information Portability and Accountability Act of 1996, information concerning individuals’ health care and treatment are considered private and privileged and may not be publicly disclosed other than pursuant to a release signed by the patient. The HIPAA Release designates individuals to whom healthcare providers may release a patient’s protected information.

Do Not Resuscitate Order (DNR) Whereas the Health Care Power of Attorney designates a person who may make decisions concerning a person’s medical treatment, the DNR covers instances such as critical or end-of-life situations where the health care agent is unavailable to convey the patient’s wishes. In that case, first responders and caregivers may follow the patient’s wishes set forth in the DNR.