While primarily Schroeder Law Offices works in the field of water law and provides clients with assistance with water rights issues and development, our office also limitedly offers additional services, such as estate planning assistance. Estate planning may seem like a daunting task, or something that is too far off in the future for many people to address right now, but having a good plan in place for your assets is something that can benefit an individual at any age. Listed below are a few of the most common types of estate planning documents with notes and additions that may help you determine what type of documents you might use to ensure that your estate is managed effectively if you are in some way unable to manage it yourself.
- Power of Attorney
A Power of Attorney (“POA”) allows an individual to appoint someone they trust (referred to as the “agent”) to conduct all financial business if the individual is in some way unable to do this themselves. As with other estate documents, age does not drive the necessity for a POA to be created, the number and amount of assets and individual possesses is what ultimately drives the need for a POA. These documents can be drafted as General, meaning that an agent has authority over all financial affairs, or Limited, which may be as specific as granting authority for one transaction. These documents can be written to give an agent authority at the time of signing, or can go into effect after the principal becomes incompetent. An attorney is needed in order to prepare this type of document. For more information on Power of Attorney documents please visit the Oregon State Bar website.
- Advanced Directive
An Advanced Directive (“AD”) is an important document for anyone over the age of 18 to complete. It allows an individual to appoint a representative and provide instructions for future health care in the event an individual is alive but unable to make these choices or communicate them. These forms can be found online and do not require an attorney to complete. Kaiser Permanente Healthcare has its own AD form and its members should request a form from Kaiser Permanente. Also important to note is that this document is not recognized by first responders or emergency medical personnel, whereas a Physician’s Order for Life-Sustaining Treatment (“POLST”) is recognized by those medical personnel. A POLST is for individuals with chronic or life-limiting illness and must be signed by a physician. For more information on Advanced Directives please visit the Oregon Health Decisions website.
A will is a document in which an individual plans for the distribution of their possessions and assets after their death. A will helps a person avoid dying intestate, meaning their possessions and assets are distributed according to the laws of intestate succession. A male who creates a will is called a Testator and a female is called a Testatrix. Wills require that the testator/testatrix has testamentary capacity, which means they meet the following requirements:
- Understand that by signing the will you are disposing of your property at death.
- Know the nature and extent of your property.
- Know who you heirs are, those people who would be entitled to inherit from you if you didn’t have a will (spouse, children, parents, siblings, etc.).
- Aware of the scope and reach of the provisions of your will.
In addition to having testamentary capacity, the individual must be of sound mind, have read the will as prepared by an attorney and confirm that it is prepared according to their wishes, and prove to not be signing the will under duress. An individual susceptible to duress may be an elderly person who is pressured by an heir to write their will in a way that benefits that heir more than others, and any attorney meeting with a person interested in created a will should be looking for ethical dilemmas such as this. A will is often notarized, but the testator/testatrix’ signature is not the signature being notarized. Instead the two witnesses required to be present and attest to the testator/testatrix’ sound mind, understanding of the will and level of duress will have their signatures notarized on an additional affidavit to the will. Contrary to popular belief, a beneficiary of a will can serve as a witness. Wills can be amended to include small changes called codicils, but it is recommended that when an individual seeks to update their will they just have a completely new will drafted to avoid confusion or losing a codicil. For more information on Wills please visit the Oregon State Bar website.
These basic documents for estate planning can all be revoked and redrafted at any point in a person’s life as their circumstances change. If you are considering beginning the estate planning process it is beneficial to meet with an attorney to determine which documents would benefit you most based on your assets, lifestyle and beliefs. The Schroeder Law Offices Estate Planning Packet has useful information to begin preparing your estate planning documents, as well as a will information sheet that is required of clients to bring to a will interview with our office. As unpredictable as life gets, it can be important to plan earlier rather than later to protect your estate and make sure the ones you love are secure in the future.