Our Community in Fairfax County, Virginia

Dealing emotionally with the incapacitation or loss of a parent or spouse is hard enough, but are you prepared to deal with practical issues that also must be addressed?  Do they have a Will or a Revocable Trust?  Did they designate a Power of Attorney who can handle their financial affairs if they become incapacitated, or a Health Care Power of Attorney who can make medical decisions if they are unable to?  Do they have a Living Will that specifies under what conditions doctors are forbidden from taking life extending measures in case of a terminal condition with no hope of recovery?  And do you have these legal documents, too?

Will.  Everyone should have a will.  In the state of Virginia, if a parent dies without a will, the spouse receives only 1/3 of the estate, and the children receive the other 2/3rds.  Is that what you want?  A simple will could guarantee that the remaining spouse would inherit full control of the estate, which makes sense when your children are young.  Conversely, when the children are grown and your estate has become quite valuable, it may make sense to revise your will to specify a portion of your estate to go to your grown children.  Otherwise, your spouse could remarry or have some other reason to change their will and not leave anything to your children.

Revocable Trust.  A popular way to avoid probate and keep your finances private is a revocable trust.  With just a simple will, your financial affairs become public record, probate taxes reduce the amount of wealth you pass on to your heirs, your property is tied up for many months before finishing probate, and potential heirs can challenge the will.

When a lawyer creates a revocable trust with you (and your spouse) as the trustee, you create a separate legal entity that controls all your assets, and you have total control over that entity.  It sounds like adding an extra layer of bureaucracy, but it has tremendous benefits to your heirs.  Once you pass on, the trust is not subject to probate because the trust is not inherited like an asset.  Instead, the trust provides for successors, and the successor simply takes control of the assets in the trust.  No taxes.  No public display of your assets.  No delay.  No legal challenges.

One resident whose father recently passed away said his father did him a tremendous favor by creating a revocable trust.  It was so easy to handle the financial affairs, and his father retained full control of the trust while he was alive.  Revocable trusts are worth the cost—typically over $2,000—for anyone with grown children and assets worth over $100,000.

Power of Attorney and Health Care Power of Attorney.  These are two separate documents that provide a similar function, one for financial affairs and the other for medical decisions.  If you become incapacitated, you need someone you trust to handle your financial affairs and make medical decisions until you recover.  Married people typically list their spouse first, then close friends and relatives in order of preference should your spouse not be alive at the time you become incapacitated.  Of the two, the financial power of attorney is the most important, as it can keep you out of trouble with unpaid bills while you are recovering from a serious injury or illness.

Living Will.  Have you ever seen someone die, only to have their body forced to function on life support equipment?  If that's not for you, get a living will.  If you should ever suffer a terrible accident or illness where doctors declare you to be terminal with no hope of recovery, they still have to do everything possible to keep your body alive unless they have your written instructions to withhold life support under these conditions.  A living will is a set of instructions that declare under what circumstances you want life support withheld.

If you should end up in this state, your surviving relatives are in an extremely difficult emotional situation.  They may not know your desires and thus hesitate to end life support, or they may miss you so much they don't want to let go.  Besides the emotional strain of watching you on life support, there are tremendous medical costs to consider.  A living will guarantees that everyone understands your wishes at a time when you are no longer able to express those wishes.

Robert Feisee believes that everyone should have a will, power of attorney, and living will, and he strongly recommends a health care power of attorney as well.  For most people, these documents can be drawn up for under $500 total.  A good attorney like Robert will notify you if laws have changed that require updates to your will or power of attorney, and you should update these documents when major changes occur in your life such as marriage.

Robert spoke at our May 2007 civic association meeting and is willing to give us a good deal on any or all of these documents.  I took him up on his offer for a will, power of attorney, health care power of attorney, and living will, and it is pretty straightforward.  And if you have Internet email, you can handle everything except the final signing of documents via the phone and email.  If you are interested, give Robert a call at 703-654-6019 and visit his Website at www.wealthlaw.net.