Let’s look at two scenarios: One where there is no power of attorney in place and one where there is.

Scenario One:  What happens if I do not have a Power of Attorney?

This scenario can become an issue if you become incapacitated.  If you are incapacitated you are unable to handle your own affairs and, for instance, your bills are not being paid or you are not able to take care of your living space anymore.  Someone close to you may notice this and want to help you.  Legally, they may have no authority to help you, and once someone becomes incapacitated, it is too late to create a power of attorney.  In order to have that authority, this person could initiate a guardianship proceeding in Probate Court (in NH) asking to be appointed your guardian.  Generally, this person would need to put on evidence relating to your inability to handle your finances or take care of yourself at a Court hearing. 

Scenario Two:  I have a Power of Attorney

If you do have a power of attorney document in place and you become incapacitated, then the Agent(s) named in the document can start to manage your affairs.  As mentioned above, the Agent’s power is spelled out in the Power of Attorney document.  An Agent owes you, the Principal, fiduciary duties, such as to act in your best interest, not commingle their assets with yours, and safeguard and manage your assets prudently, to name a few.  Having this Power of Attorney document in place prior to your incapacity may obviate the need for someone to seek a guardianship over you.

It was a great opportunity to be able to provide some information to caregivers and to learn about local and state-wide initiatives aimed at supporting caregivers.  In 2015, an estimated 34.2 million American adults have served as an unpaid caregiver to someone age 50 or older, according to a report by the AARP and the National Alliance for Caregiving.  The report, which has a number of other findings can be found by clicking here.

Besides the Legacy Letter Template we also offer Priceless Conversations in which we would record your voice, either telling a story, recording some family history, or just engaging in conversation with one of us here at Ward Legal Group.  What a powerful and lasting gift to those who will survive you.

Here is an interesting article about family narratives:  http://www.nytimes.com/2013/03/17/fashion/the-family-stories-that-bind-us-this-life.html

Many people worry about what will happen to their animals if they were to pass away suddenly or have to move from their homes.  Planning ahead for your pets can be an important part of your estate plan.

As far as providing for them after you pass away, you can write provisions in your Will or Trust that state where or with whom you would want your pets placed as well as an amount to be paid to the intended placement, if any. Another option could be a pet trust, which is recognized in New Hampshire.  After you pass away, the assets in your pet trust would be used by your Trustee to take care of your pet(s) for the pet’s lifetime.  You may have different people serve in the roles of Trustee and caregiver or it could be the same person.

Don’t overlook planning for your pets if you experience an incapacity.  You can put a provision in your Power of Attorney or Revocable Living Trust that would authorize your Agent or Trustee to take custody of and make arrangements for any pets that you own during a period of incapacity.  If you would like to discuss planning for your animal companions in your estate planning, contact us at (603) 352-7310.

In our context, “Probate” refers to the court-supervised settlement of the estate of someone who has passed away.  A Probate Administration is generally needed if someone passes away owning an asset in his or her own personal name, such as a bank account in the deceased’s person’s name only.  Typically jointly owned assets or assets with valid beneficiary designations will not need to pass through the Probate process but will pass directly to the other owner or beneficiary.  At Ward Legal Group, we assist people who are named as executors in Wills, or who want to settle the estate of someone who died without a will (see intestacy blog post) to determine what might need to go through Probate and to help them navigate that process.

There are different kinds of guardianships:  over the estate and over the person.  A guardianship over the person is necessary in order to make decisions regarding living arrangements and healthcare for the child.  A guardian over the estate would manage the minor’s property and financial affairs.   There could be more than one guardian appointed for a child.

You can nominate a guardian for your children in a Will.  It is helpful to also name successor guardians as well as the probate judge is not required to appoint your choice of guardian.

In a will you not only can name guardians for your children, but you can also describe how you would want your estate to be distributed to them after you pass away.  One option is to distribute everything outright to your children (or to a guardian of the child).  Another option is to set up in your will separate trusts for each of your children, with a trustee who makes distributions to each child.  You can state some guidelines as to in which circumstances you think that the trustee should make these distributions. 

Yet another option could be to set up a “common pot trust” in your will.  In this scenario, your estate would not be broken up into separate trusts like the previous example, but instead, held in common for all of your children.  A common pot trust can delay division into equal shares until younger children have had the same assistance as older children for support and education.  A trustee could make unequal distributions to your children based on their needs, and could make advancements to older children for things like buying a home.  The common pot trust could terminate when the youngest child reaches a stated age and then the rest could be distributed out equally to your children.

Similar arrangements can be made in a revocable living trust plan.

A trust can avoid probate if that is your estate planning goal.  An important piece of planning with a trust is what we call “funding.”  Funding means that assets are titled and beneficiary designations are made in such a way as to work with your estate plan.  For more information on estate planning, click here.

A will does not “avoid probate.”  Probate Court will typically need to be involved when someone dies owning assets in his/her own personal name.  A will can be viewed as a set of instructions for the Probate Court regarding how the estate should be distributed and who should be in charge.   For more information about Probate Administration click here.