Will & Trusts Probate
If you don’t have a Will, the law of the state where you reside or own property determines to whom, when, and how your assets will be distributed. Does that law provide for your loved ones the way you would provide for them?
Advance Directives generally refers to treatment preferences and the designation of a surrogate decision-maker in the event that a person should become unable to make medical decisions on his or her own behalf. Advance Directives generally fall into three categories: Living Will, and Health Care Proxy, and Power of Attorney. Each of them last until the maker dies or they are legally revoked.
Living Will:This is a legal document that specifies what types of medical treatment are desired should the individual become incapacitated. The most common statement in a living will is to the effect that:
If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.
Health Care Proxy:This is a legal document in which an individual designates another person (called the “Health Care Agent”) to make health care decisions if he or she is rendered incapable of making their wishes known. The Health Care Agent has, in essence, the same rights to request or refuse treatment that the individual would have if capable of making and communicating decisions. It commonly states:
I do not want the following treatment: Artificial respiration; artificial nutrition and hydration (nourishment and water provided by feeding tube); cardiopulmonary resuscitation (CPR). I do, however, want maximum pain relief.
Durable Power of Attorney:This is a legal document whereby you give “power of attorney” to another person (your “Agent”). This means that you give your Agent “authority to spend your money and sell or dispose of your property during your lifetime without telling you. You do not lose your authority to act even though you have given your agent similar authority. When your Agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest.” A power of attorney allows an individual to make bank transactions, sign Social Security checks, apply for disability, sell real estate, or simply write checks to pay the utility bill. Your Agent will have the powers you designate to them until die or until you legally revoke it.
Last Will and Testament: A Will is unlike a Living Will, Health Care Proxy, or a Power of Attorney in that it comes to life after the maker (Testator) passes away. A Will is ambulatory, which means the Testator can revoke or change it any point in time during his or her life time, but it becomes final upon the Testator’s demise. A Last Will and Testament allows the Testator to legally determine who inherit their property, when and how they will inherit it, and name who he or she wants to put in charge of settling their estate (carrying out their wishes). A Will can also indicate who the Testator wants to serve as the Guardian of their minor children.
Intestacy: If you fail to make a Last Will and Testament before you die, then your state’s intestacy laws as well as the intestacy laws of every state in which you own property controls when, where, how, and to whom your property is to pass. Therefore, executing a valid Last Will and Testament is the only way to insure that your property will go to the beneficiaries that you choose.
John Giacobbe routinely drafts wills, trusts, health care proxies, living wills, probate, estate litigation, and settle estates in New Rochelle, White Plains, Eastchester, Scarsdale, Pelham, Rye, Rye Brook, Larchmont, Tuckahoe, Mamaroneck, Cortlandt, Dobbs Ferry, Hastings, Harrison, Ossining, Mount Vernon, Manhattan, Westchester, and the Bronx. I am an estate planning attorney and I am licensed in New York, Connecticut, New Jersey, and Washington DC.