TRUST and ESTATES
A will specifies how the assets of an individual (the testator) are to be distributed. It may also include other instructions, such as the testator’s wishes regarding funeral arrangements. The will becomes effective only at the time of death and not before. It has no effect on the testator’s assets while he or she is living. In the will, an executor is appointed who is responsible for carrying out the testator’s wishes.
As with a trust, a will can be written to account for many circumstances. However, there are certain rules that must be followed when preparing the will to ensure its legal effectiveness. The Law Office of Joseph A. Carofano, P.C. should be consulted to ensure that the will is properly drafted and executed.
A trust is an agreement whereby an individual (the grantor or settler) appoints another person (the trustee) to hold and manage the grantor’s assets on behalf of a beneficiary.
Trusts can be very useful instruments, and take many forms, but they are also somewhat complicated. The Law Office of Joseph A. Carofano, P.C. could help you decide if a trust is appropriate for you and if so which trust is the correct one for your needs.
Power of Attorney
This is a legal document that an individual (the principal) uses to give another person (the agent, or attorney-in-fact) the power to act on the principal’s behalf. The power may be general, give the agent unlimited control over the principal’s affairs, or it may be limited to a certain area (such as the sale of a house or car). For the power of attorney to be valid, the principal must be competent when he or she signs it; that is, the principal must have the mental capacity to understand the nature and significance of the power he or she is granting.
Therefore, it is very important for individuals to execute these documents when they are competent and able to understand the legal significance of such a document.
There are several different types of powers of attorney. The most relevant is the durable power of attorney. A non-durable power of attorney is automatically revoked by the law when the principal loses mental capacity. The durable power, specifically states the power continues in effect even if the principal becomes incapacitated after signing. This is why this type of power of attorney should be made by an elderly individual.
Living Will/Health Care Proxy
A living will allows an individual to leave instructions to family and friends explaining his or her preferences for medical treatment. It only takes effect if the individual cannot express an opinion due to incapacity. A living will can be used to indicate that the individual does not or does want extraordinary measures used to prolong his or her life. The instructions can be as general or specific as the individual wants.
Like a living will the health care proxy allows one to leave instructions regarding treatment wishes. But the proxy document goes beyond the living will. With this document, the individual appoints another person (the proxy) to make health care decisions in the event of incapacitated person’s wishes and will act accordingly. The proxy has the power to authorize or withhold treatment.
Medical practitioners are required by law to follow the instruction of the proxy. Although the individual’s wishes expressed in a living will are usually followed, the only way to be sure is to use a health care proxy. Instructions in the living will and on the health care proxy should be consistent with an