Estate Documents – Naming your Representatives


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Believe it or not, this can be the stumbling block for individuals when preparing Estate documents. Estate documents typically consist of a Personal Directive (Living Will), Enduring Power of Attorney and Last Will and Testament.

The Personal Directive (Living Will) is a legal document that is in effect while you are alive but no longer capable of making personal/medical decisions for yourself. This is the end of life document – the one that says “if the body is chugging along, but the brain is gone, let me peacefully but let me die pain free”. The Enduring Power of Attorney is a legal document that is in effect while you are alive but no longer willing, capable (whether physically or mentally) or simply, no longer want to, manage your financial affairs. Once you pass away, both of these documents become null and void.

There are two types of Personal Directives and Enduring Powers of Attorney – springing and immediate. A springing Enduring Power of Attorney or Personal Directive only comes into effect when two of your medical providers sign a declaration stating just that – that you are no longer capable of managing your financial affairs, as in the case of an Enduring Power of Attorney, or making personal/medical decisions, as in the case of a Personal Directive.

An immediate Personal Directive or Enduring Power of Attorney takes immediate effect upon the signing thereof. This does not mean that whoever is named in the document must act immediately; it simply means that the document is invoked immediately and can be used immediately by the individual named in the document. Often immediate Personal Directives or Enduring Powers of Attorney are used when an individual has received a diagnosis which he/she knows will signal the eventual end of life or will result in mental or physical decline such that, in a mental situation, the individual will not have the mental capacity to sign such a document, or in a physical situation, the individual will not have the ability to communicate his/her needs (i.e. Lou Gehring’s Disease).

In the Enduring Power of Attorney, the individual that you are naming is called an “attorney”. This should not be confused with the term “attorney” in the sense of being lawyer. It is simply a designation. The individual that you name, however, will have full access to all aspects of your financial world so careful thought must be given to whom you trust enough to manage your money.

With the Personal Directive, it is more of an emotional task for the individual or individuals you are naming. The person or persons you are naming in your Personal Directive are called “agents”. Because this is an emotional decision, thought needs to be given to whom you believe can and will put into effect the directions you have set out in your Personal Directive. Even though you have set out those directions, it is still emotionally difficult for the one you are naming to “pull the plug”.

The Last Will and Testament is a legal document wherein you are setting out, among other things, whom you wish to manage your affairs once you die and who you wish to give your Estate to. The Will also designates who will act as guardian of any children you may have under the age of eighteen (18). The Will only takes effect when you pass away. For simplicity sake, it takes the place of the Enduring Power of Attorney when you die.

With the Will, the individual or individuals you are naming, are called “personal representatives and trustees”. They used to be called “executors or “executrixes”, but they now have a fancy, new name. Your personal representative and trustee (your trustee) will likely be required to obtain a Grant of Probate from the Surrogate Court and once that has been obtained, they will be tasked with paying all debts owed by you on your death, selling your home, closing accounts, preparing a final tax return, etc. and once that is complete, distributing what it remaining of your estate to the beneficiaries you have named in your Will.

This is a time consuming task and can be anxiety provoking for the individual you will name. Thought must be given to whom you consider to be capable of these tasks. It is definitely time consuming and if you name an individual who is not cut out for this task, it can be thankless and stressful, particularly if you have feuding family members.

Naming individuals in these documents can be very anxiety provoking, particularly if you have no family or anyone you can trust. Furthermore, it is always a good idea to name one primary individual and one alternate individual, in the event your primary choice is unwilling or unable to act at the time the document is invoked.

This is why naming your attorneys (Enduring Power of Attorney), your agents (Personal Directive) and trustees (Will) can be so difficult that you simply avoid preparing the documents. The end of life stage is difficult enough without having to stress about who will take care of you when you no longer can or who will manage your estate once you have died. Not preparing these documents, however, can create much worse anxiety and headache for those you leave behind.

This is where AzPerLegal Services comes in! We offer to act as your attorney, agent and/or trustee, as the case may be, if you simply do not have an appropriate person or persons to name. By naming AzPerLegal Services Inc. as your designated attorney, agent and/or trustee, we take the emotional out of it. We are an impartial third party carrying out your wishes. We have the experience required to efficiently manage your affairs, while alive or dead, with utmost of integrity and care.