Who Needs a Health Care Power of Attorney?

Every Adult. Under Wisconsin law, no one can make medical decisions for you unless you are a minor or you are married without a Health Care Power of Attorney. A Health Care Power of Attorney lists usually 2 people that you want to be your health care agent in the event you are incapacitated (meaning 2 doctors agree that you cannot make your own health care decisions). In a perfect world, the Department of Transportation would hand 18 year olds a Health Care Power of Attorney form when they turn 18 and come to the DMV to get rid of their probationary license. Assuming someone who is an adult is incapacitated and that adult does not have a Power of Attorney, a guardianship action must be filed to appoint someone to be their guardian. Guardianship costs a lot more than the free Health Care Power of Attorney form available on the Wisconsin Department of Human Service's website.

If you are married, but don't trust your spouse (that you maybe divorcing, separated from, etc.) to make your medical decisions, it is also time to fill out a Health Care Power of Attorney. Remember to follow instructions when filling out this form, ideally also execute a Living Will (available on the Wisconsin Department of Human Service's website), and sign this document before two witnesses that are not related to you. Many attorneys include these documents for free as part of an estate plan, and hospitals may also provide them to you in preparation for surgery.

As usually, this blog posting is not a substitute for legal advice from an attorney who knows your circumstances. No attorney-client relationship is formed by reading this posting.

Authorization for Final Disposition

What is an Authorization for Final Disposition? An Authorization for Final Disposition tells the survivors who is in charge of planning the funeral/burial, what you want, and where the funds are to provide the services you want. Years ago, I think it was more popular to make these arrangements with a funeral home when people bought burial plots. Now, I would guess this form of planning is done less because we live in a more mobile society. People don't live and die in the same town as they did years ago. (I guess this posting should have come with a warning - it's the most morbid of all the estate planning forms).

So why is it important? As you may know, estate plans are made up of more than just wills and trusts. A Health Care Power of Attorney and Living Will are essential parts of a good estate plan. They tell everyone what you want to happen to you while you are alive, but incapable of making your own decisions. In fact, these documents are so essential that the State of Wisconsin makes these forms available to Wisconsin residents on the Department of Health and Family Service's website. http://dhs.wisconsin.gov/forms/AdvDirectives/ But, the State's Health Care Power of Attorney and Living Will cover what happens while you are alive and not what you want for funeral and burial services.

While incredibly morbid, this form can save your family from arguing and guessing what you really wanted. I have given this form to people and told them I'm here to witnesses it if they fill it out. So far, no one has jumped at the opportunity. If you wish to include an Authorization for Final Disposition in your estate plan and are a Wisconsin resident, the form is also provided by the Department of Health and Family Service's website: http://dhs.wisconsin.gov/forms/AdvDirectives/

As always, this posting is not a substitution for good legal advice from an attorney who knows your circumstances. No attorney-client relationship is formed by reading this blog and the reader uses this information at their own risk.

Lakeland Law Firm, LLC
N27 W23957 Paul Road
Suite 206
Pewaukee, WI 53072
262-347-2000
www.lakeland-law.com

What is probate?

In Wisconsin, a probate is a legal action designed to find, collect, and distribute the assets of a person who has passed away. What sounds like a simple goal, can be anything but simple. To make sure no assets or debts of the person who has passed away are forgotten, there are numerous procedures and forms that must be completed as part of a probate.

Many of our largest assets are typically not subject to probate. For example, a retirement account with another person designated as a beneficiary is not part of a probate. The same is true of life insurance policies, transfer on death deeds ("TOD" deeds), and bank accounts with designated beneficiaries.

So what assets do end up in a probate? Lots of things. Clothes, furniture, jewelry, vehicles (titled only in the name of the decedent), houses (titled only in the name of the decedent), cash accounts (without a designated beneficiary), etc. There is a clear-cut, right or wrong answer for whether an asset belongs in a probate or not. I remember contacting a local attorney, before I became one myself, and to ask what happens with one of my grandmother's assets when she passed. The attorney called me back twenty minutes later with the answer and didn't charge me for his time.

Keep in mind, whole books, actually multiple volume books, have been written about the ins and outs of probate. A lot of attorneys don't even do probate because of the complexity. So, if you are thinking about how to handle a loved one's estate or are concerned about your own estate, contact an attorney.

What happens if I don't have a Will?

A will is used to dictate who receives your property (only assets that pass through probate, which is a topic for another day). If a Wisconsin resident passes away without a will, Wisconsin law under Chapter 852 dictates who receives his/her property. The person who passes away is called the "decedent." To over-simplify, the property of the decedent is called the "estate."

If the decedent was married at the time of his/her death, the surviving spouse will likely receive the decedent's property. See. 852.01(1)(a). I use words such as "will likely" for a reason. There are exceptions to every rule. For example, if a spouse doesn't want the decedent's property, the spouse can disclaim his/her interest. One of many other exceptions would occur if the decedent and the spouse had a pre-nup or post-nup that allowed for the estate to pass to someone other than the spouse.

If the decedent was unmarried/singled/widowed with living children, the estate would pass to the decedent's children. If the decedent is unmarried/single/widowed without children, the estate passes to the decedent's living parents. 852.01(1)(c) The statute goes on, and on, and on, to address what happens when a single person dies without children, without parents, without siblings, ...

If this seems like time for a flow chart, you understand why attorneys attend law school and why having a will is a good idea. As always, blogs and the internet are no substitute for legal advice from an attorney licensed to practice in your state. This blog is not legal advice and does not form an attorney-client relationship with Lakeland Law Firm, LLC or its attorneys.

What is an Estate Plan?

In Wisconsin, an estate plan consists of a will, health care power of attorney, living will, durable power of attorney for finances, and may or may not consist of a trust and final disposition. There are many different types of trusts depending upon the goals you are trying to accomplish, and not everyone needs a trust. The next few weeks of postings will provide more detail about the purpose of each of these documents.

None of the postings provide by this blog is a substitute for legal advice from an attorney who knows your circumstances. It is this blogger's opinion that estate plans, at least in Wisconsin, should be drafted by attorneys, not websites or drafted by individuals without a license to practice law.

Lakeland Law Firm, LLC
N27 W23957 Paul Road, Suite 206
Pewaukee, WI 53072
(262) 347-2000
www.lakeland-law.com