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Why Every Iowan Should Have Financial Power of Attorney (Everything* You Need to Know About Estate Planning: Day 4)

Estates & Estate Planning, Powers of Attorney, Wills, Wills, Trusts & Estates

What IS a Financial power of attorney, anyway?

You’ve probably heard you need to have a financial power of attorney in place, but the whole thing seems a little ambiguous . . . what does this important legal document (which is a necessary part of a complete estate plan) actually mean? Let’s cover the basics.

SIX “MUST HAVE” DOCUMENTS OF YOUR ESTATE PLAN

As discussed in this previous blog post overview , there are six documents that should be part of most everyone’s estate plan:

  1. Estate planning questionnaire
  2. Will
  3. Power of attorney for health care
  4. Power of attorney for financial matters
  5. Disposition of personal property
  6. Disposition of final remains

In a follow-up blog post, we considered the basics of a will. 

And, in my latest blog post, we discussed the power of attorney for health care. 

 

Let’s move on, now, to the financial power of attorney.

WHAT IS A FINANCIAL POWER OF ATTORNEY?

A financial power of attorney (“POA”) is a legal document that designates someone (an “agent,” sometimes also called an “attorney-in-fact”) to handle your financial decisions on your behalf, if you are unable to do so while living, due to illness, injury, and/or lack of mental capacity.

IMMEDIATE VERSUS SPRINGING

There are two main types of financial power of attorney I offer my clients.

  • Immediate power—effective from the moment you sign it, without any medical certification; while immediate, you do not lose control of your affairs. (This is typically what I recommend.)
  • Springing power—becomes effective only upon medical certification that you are unable to carry on your legal and financial affairs.

WHAT HAPPENS IF I DON’T HAVE A FINANCIAL POA?

If you don’t have a financial POA, and you were to become incapacitated, any financial decisions would need to be made by a court-appointed conservator. Under a court’s direction, the conservator would handle your financial matters. To have a conservator appointed by a court is a quite expensive and time-consuming process, especially compared with the relative simplicity of executing a financial POA. Also, court proceedings generally being public, having a court consider whether or not you are “competent” to handle your own financial matters, is potentially embarrassing. Futher, you’d much rather leave your important financial decisions to a person you love and trust, over someone a court appoints (a court may not pick who you’d want).

AFTER I DIE, CAN MY AGENT CONTINUE TO OPERATE UNDER MY FINANCIAL POA?

A common misperception is that your agent will be able to use this power after your death. Not true! Upon death, your financial POA terminates and your will and/or trust kick in to guide decision making in your absence.

Put another way, at your death, your agent’s powers are automatically revoked. The representative appointed through the probate process will carry out your estate plan.

WHO SHOULD I CHOOSE TO SERVE AS AN AGENT UNDER MY FINANCIAL POA?

The agent you name will be managing your finances, so it is critically important to choose someone trustworthy; someone who will not abuse or exploit this power; someone who will listen to your wishes, goals, and objectives, as included in the document or otherwise communicated; and someone who will always look out for your best interests.

If there’s no person in your life you believe trustworthy or capable enough to be your executor, or you don’t want to burden with the role, you have another option: appointing a corporate executor or trustee. You can find corporate executors and trustees at banks and private investment firms. They usually charge a fee based on the size of the estate, but corporate executors and trustees have the advantages of experience, a dedicated staff, and impartiality. The latter quality is particularly important if there are complicated family dynamics, such as blended families or bad blood.

You also have the option of designating a successor agent who can take over if the original agent is unable or unwilling to serve. This is highly recommended.

WHO SHOULD RECEIVE A COPY OF MY FINANCIAL POA?

I recommend that the person named as agent and any person named as a successor agent should receive a copy of your financial POA. You may also wish to share a copy with your financial institution(s), such as your bank/credit union, as well as with your financial advisor and/or accountant.

CAN I REVOKE MY FINANCIAL POA?

Yes, you may revoke the financial POA at any time. You can also amend the financial POA (change it, revise it, etc.) at any time.

ARE THERE OTHER ESTATE PLANNING DOCUMENTS I NEED?

Yes, definitely! There are six “must have” estate planning documents. The financial power of attorney is one of these documents that create a basic, overall estate plan.

WHO NEEDS A FINANCIAL POA?

I’m a staunch believer that every adult Iowan needs an estate plan—including young professionals, newlyweds, the non-wealthy, and especially people with minor children—and, therefore a financial POA. A financial POA can even be incredibly important (but often overlooked) for college students.

Do you have a financial POA? How about a full estate plan in place? Why or why not? I’d love to hear from you. Email me at gordon@gordonfischerlawfirm.com or call (515-371-6077).

*OK, not everything. But many things, let’s say, an excellent start.

 

June 4, 2021/by Gordon Fischer
https://www.gordonfischerlawfirm.com/wp-content/uploads/2021/06/Everything-You-Need-to-Know-About-Estate-Planning-Day-4.jpg 480 640 Gordon Fischer https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.png Gordon Fischer2021-06-04 09:00:452022-01-10 14:35:49Why Every Iowan Should Have Financial Power of Attorney (Everything* You Need to Know About Estate Planning: Day 4)

What Every Iowan Should Know About Health Care Power of Attorney (Everything* You Need to Know About Estate Planning: Day 3)

Estates & Estate Planning, Powers of Attorney, Wills, Wills, Trusts & Estates

SIX “MUST HAVE” DOCUMENTS OF YOUR ESTATE PLAN

As discussed in this previous blog post overview, there are six documents that should be part of most everyone’s estate plan:

  1. Estate planning questionnaire
  2. Will
  3. Power of attorney for health care
  4. Power of attorney for financial matters
  5. Disposition of personal property
  6. Disposition of final remains

Last blog post, I explained the basics of a will. 

In this post, let’s discuss the benefits and important aspects of a health care power of attorney.

WHAT IS A HEALTH CARE POWER OF ATTORNEY?

A health care power of attorney (“POA”) is a legal instrument that allows you to select the person (called an “agent”) that you want to make health care decisions for you, if and when you become unable to make such decisions for yourself.

WHAT TYPES OF DECISIONS CAN BE MADE BY A HEALTH CARE POA?

A health care POA can govern any decision related to your health that you want to address. A health care POA may include decisions related to organ donation, hospitalization, treatment in a nursing home, home health care, psychiatric treatment, end-of-life (i.e., the use of life support), and more.

WHEN WOULD I USE A HEALTH CARE POA?

A health care POA is used when you become unable to make health care decisions for yourself. Your agent will be able to make decisions for you based on the information you provided in your health care POA. Equally important, your agent will be able to access your medical records, communicate with your health care providers, and so on.

WHAT HAPPENS IF I DON’T HAVE A HEALTH CARE POA?

If you don’t have a health care POA, and you should become disabled to the point where you are unable to make health care decisions for yourself, your health care provider (say, a hospital) will do everything possible to save your life.

Your family, without guidance from you, will be faced with agonizing decisions. Your family members may not be able to agree on how to handle your medical care, or you might disagree with the decision your family ultimately makes.

If your family can’t agree on a course of action, they would have to go to an Iowa Court and have a conservator/guardian appointed for you. It may, or may not, be someone you would have chosen. Further, the conservator/guardian may make decisions you wouldn’t have made.

This is all very complicated, time consuming, and expensive.  A health care POA simplifies this process by giving you control over how decisions are made for you and allowing you to choose who will carry out your wishes. Best of all, it leaves your family with peace of mind.

IS THERE A “ONE-SIZE-FITS-ALL” POA FOR HEALTH CARE?

No! All Iowans are special and unique, and so are each individual’s issues and concerns. Consequently, this article is presented for informational purposes only, not as legal advice. Please consult your lawyer for personal advice.

DO I NEED OTHER ESTATE PLANNING DOCUMENTS IN ADDITION TO A HEALTH CARE POA?

Yes, definitely! (It’s even essential for college students.) There are six “must-have” estate planning documents that make up a complete, comprehensive estate plan. (Some people may also need to consider a trust.)

Do you have a health care POA currently? And do you have a complete estate plan? Why or why not? I’d be most interested in any thoughts or comments. Email me anytime at gordon@gordonfischerlawfirm.com or call 515-371-6077.

*OK, not everything. But many things, let’s say, an excellent start.

June 3, 2021/by Gordon Fischer
https://www.gordonfischerlawfirm.com/wp-content/uploads/2021/06/Everything-You-Need-to-Know-About-Estate-Planning-Day-3-scaled.jpg 1707 2560 Gordon Fischer https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.png Gordon Fischer2021-06-03 09:00:232022-01-10 14:35:49What Every Iowan Should Know About Health Care Power of Attorney (Everything* You Need to Know About Estate Planning: Day 3)

What Do Wills and Tattoos Have in Common? (Everything* You Need to Know About Estate Planning: Day 2)

Estates & Estate Planning, Wills, Wills, Trusts & Estates

A will is the bedrock of every estate plan. Even though most people know they should have one, they don’t know what a will is, what goes in it, or how it works. In fact, only one in four adults in America (25%) has a will—that’s roughly the same number who have tattoos (23%). Look at it this way: you can take your tattoo to the grave, but your assets that stay above ground need to be administered properly.

WILLS: THE BOTTOM LINE

A will is a legal document that provides for the orderly distribution of your personal property at death according to your wishes. It spells out your directions regarding other important matters such as the care of any minor children, the transition of business assets, and the naming of an executor who will oversee its directives are followed.

WHAT IF YOU DON’T HAVE A WILL

Not having a will means the judicial system (the “court”) will end up administrating your estate through the lengthy process of probate in accordance with state intestate laws. There is no guarantee this process will result in dispersing your assets in the way you would have wanted. This process can cost your family not only a lot of time and money, but it can also lead to anxiety and even heartache.

WILL IS NOT AN ESTATE PLAN, AND VICE VERSA

The will is the bedrock document of every estate plan, and it’s a little more complicated than other documents. With your will, you’ll be answering four basic, but very important, questions. I’ll list the questions, then discuss each separately.

  1. Who do you want to have your stuff?
  2. Who do you want to be in charge of carrying out your wishes as expressed in the will?
  3. Who do you want to take care of your children? If you have minor children (i.e., children under age 18), you’ll want to designate a legal guardian(s) who will take care of your children until they are adults.
  4. What charities do you want to benefit when you’re gone. A will is a great way to benefit your favorite nonprofits?

WHO DO YOU WANT TO HAVE YOUR STUFF?

A will provides orderly distribution of your property at death according to your wishes. Your property includes both tangible and intangible things. 

Tangible personal property is usually considered to be everything (other than land) that has physical substance and can be touched, held, and felt. Examples of tangible personal property include furniture, vehicles, baseball cards, jewelry, art, your Great-aunt Millie’s teaspoon collection, and pets. Intangible personal property doesn’t have a physical existence so it can’t be touched, but it nevertheless has value. Your intangible personal property might include bank accounts, stocks, bonds, insurance policies, and retirement benefit accounts.

Most people think “real estate” or “land” when they hear the word “property,” but “property” has a different meaning when it comes to estate planning.

There are generally two basic categories of property: real property and personal property. Real property is land and whatever is built on the land, attached to it, or natural to it, such as houses, barns, grain silos, tile drainage lines, and mineral rights. Personal property is essentially anything that is not real property. Two qualities of personal property to keep in mind: it is moveable, and it can be hidden. Jewelry, cash, a pension, and antiques are kinds of personal property.

Example: The fenced acreage you own is real property because it is land that is immovable. The cattle on it are personal property because they can be moved—or hidden.

WHO’S IN CHARGE?

Who do you want to be in charge of carrying out your wishes as expressed in your will?

An executor is a person who’s in charge of your estate plan. You entrust your executor with the authority to ensure that your wishes are carried out and that your affairs are in order.

Managing an estate plan is not an awful job, but it is an awful lot of responsibility. If you have never dealt with the execution of a will, you might not know how time-consuming, complicated, and demanding it can be. You may also be grieving at the deceased’s passing while trying to make sure all particulars are handled properly. It can be a stressful role, to say the least.

When picking an executor, you want to make sure it’s someone you trust, but also someone you know can handle the complexities and responsibilities of the job. We all have people in our lives whom we love but recognize they’re not dependable when it comes to things like finances and managing paperwork. Choose someone in your life who is organized, detail-oriented, and can take on what is essentially the part-time job of administrating your estate.

If there’s no person in your life you believe trustworthy or capable enough to be your executor, or you don’t want to burden with the role, you have another option: appointing a corporate executor or trustee. You can find corporate executors and trustees at banks and private investment firms. They usually charge a fee based on the size of the estate, but corporate executors and trustees have the advantages of experience, a dedicated staff, and impartiality. The latter quality is particularly important if there are complicated family dynamics, such as blended families or bad blood.

Whether you choose someone you know or appoint a corporate executor or trustee, you need to sit down with that person for a formal discussion. For a friend or family member, make clear why you’ve assigned him or her the role. Avoid surprises: don’t keep the name of your executor a secret. If you chose one of your children to be your executor, make sure to tell the other(s) to avoid hurt feelings and strife after you’re gone.

Additionally, if you have a large or complicated estate, or you would like to set up long-term trusts, or you worry about taxes, a corporate executor or trustee might be a good solution.

WHO GETS THE KIDS?

For parents with minor children (those younger than 18 years old), it is critically important that you designate a guardian(s) who will be legally responsible for their education, health, and physical care until they reach adulthood. Like the executor, it is a job that requires you choose someone you trust, but it encompasses so much more than the able administration of your estate—and it doesn’t end after the estate is closed.

In most cases, the surviving parent assumes guardianship of children without a Court intervening. However, there are still a number of factors to consider when choosing a guardian, including parenting style, financial situation, religious and personal values, age, and location. You need to have an in-depth conversation with any potential guardian or guardians to confirm everyone is comfortable with the arrangement and that he or she is prepared for this responsibility.

In Iowa, dying without establishing guardianship results in the Court choosing a child’s or children’s caregiver(s). It considers what is in the best interest of the child and makes a guess as to the person or people a parent would have wanted. The choice might be someone the deceased parent would never have selected—all the more reason to name a legal guardian in your will.

TATTOO ESTATE PLANNING ON YOUR TO-DO LIST

Go ahead get that tattoo and wear it proud all the way to the very end. But while you’re showing your ink off, also think about what you want to do with all of your assets. Talk to a qualified estate planner or get started with estate planning by filling out my free, no-obligation estate plan questionnaire. Any questions? Don’t hesitate to contact me at gordon@gordonfischerlawfirm.com or by phone at 515-371-6077.

*OK, not everything. But many things, let’s say, an excellent start.

June 2, 2021/by Gordon Fischer
https://www.gordonfischerlawfirm.com/wp-content/uploads/2021/06/caroline-hernandez-TMpQ5R9mbOc-unsplash.jpg 1280 1920 Gordon Fischer https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.png Gordon Fischer2021-06-02 09:00:162022-01-10 14:35:50What Do Wills and Tattoos Have in Common? (Everything* You Need to Know About Estate Planning: Day 2)
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