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The Four Basic Documents

Thinking of Your New Year's Resolution???

The holidays and the New Year will soon be here. With the New Year comes a time to reflect and make resolutions for the coming year. With that in mind, consider a resolution that has long lasting benefits to both you and your loved ones, yet takes little time to complete.

The resolution is executing four very important legal documents:

  • Last Will and Testament
  • Durable Power of Attorney
  • Durable Power of Attorney for Health Care and
  • Living Will.

You might wonder why this resolution is important . . . .

A Last Will and Testament puts in writing the person or persons you wish to receive your probate estate upon your passing and the person or persons you wish to take care of your affairs after your passing. Your probate estate includes your personal property (clothes, jewelry, furniture, dishes, etc.), your real estate property, and any other asset that has no beneficiary, is not jointly titled, or is not titled payable on death or transfer on death. Other assets include stocks, bonds, investments, money, and insurance policy proceeds. The person you name to take care of your affairs is called your Executor. This document goes into effect upon your passing.

If you don't have a will, your probate estate will go to the persons designated by relationship and in the percentages as stated in accordance with the Ohio Law of Descent and Distribution. Without a will, the Probate Court will appoint someone to take care of your estate upon your passing. This may not be the person you would choose.

The Durable Power of Attorney is a legal document in which you name a person or persons you trust to take care of your financial affairs. This document is effective when you execute (sign) it. Without this document, you will not have someone to manage your financial affairs if you are unable to take care of them yourself due to illness, incompetence, etc.

The Durable Power of Attorney gives the Agent (the person you choose) the authority to take care of various financial matters such as your banking, paying your bills, selling or buying real estate, managing your investments, etc.

The Durable Power of Attorney for Health Care and Living Will are the legal documents that deal with health care matters. The Durable Power of Attorney for Health Care is the legal document in which you name someone you trust to be your Agent and make health care decisions for you if you are unable to make them yourself. This may be a temporary or permanent situation.

The Living Will is the legal document in which you state your wishes about end-of-life health care if you become terminally ill or permanently unconscious. This document only takes effect when you are terminally ill or permanently unconscious.

These legal documents are voluntary and are revocable as long as you are competent. Revocable means you can change the document or cancel it. Only you can execute these documents. No one can do this for you.

When someone is unable to take care of her financial affairs and/or make health care decisions and has no Durable Power of Attorney and Durable Power of Attorney for Health Care, a guardianship may be needed. A Guardianship is a legal proceeding done through the Probate Court. First, the Court makes a determination that the person is not competent to handle her affairs. Next, the Court names a person (called a Guardian) to be responsible for the person. The Guardian makes all decisions for the person including financial and personal such as health care decisions. The Probate Court oversees the Guardian's decisions. Most people wish to avoid guardianship because they would rather choose the person who takes care of their affairs rather than having the Court choose this person.

After you have the four documents, it is crucial that you talk with your Agent about the Durable Power of Attorney, the Durable Power of Attorney for Health Care, and the Living Will. If your Agent does not know about the documents, they will serve no purpose to you. You must also provide a copy of your Durable Power of Attorney for Health Care and Living Will to your doctor(s). It is also important to talk with your family about these documents. Your discussion with your Agent and your loved ones should include your wishes about how you want your financial affairs handled and your wishes regarding health care, especially end-of-life.

Without these documents, you leave much to chance. You also leave your family and/or loved ones without proper preparation to handle your affairs when you are unable to take care of them yourself.

These documents should be updated periodically, especially when changes occur in your life. Examples include marriage, divorce, birth of children or grandchildren, death of loved ones, and moving to another state.

Start your New Year out right. Make these four documents your resolution.

Attorney Kreiner is available to do group presentations about this topic.

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