What is the best way to plan for the future?
Using the following legal documents will help you and your family prepare for the future.
It is important that everyone has a will. A will allows you to:
► Designate who will care for your children and possibly avoid a custody battle.
► Establish a trust to provide for the support, maintenance, and education of your minor children or other beneficiaries. You cannot leave assets directly to children.
► Decide who will handle the settlement of your estate.
► Decide how, when, and who gets your property.
► Avoid or reduce fees and costs charged to your estate.
Without a valid will, a court will decide these things for you.
Any assets that have a beneficiary or payable-on-death designation, or are jointly held, will not pass through your estate, but will go directly to the person or persons indicated in the documents. In order for minor-age children to inherit, it is important to establish a custodian or trust
When do I make a Will?
When you are mentally competent to do so. Persons of unsound mind and under the age of 18 may not make a valid will.
How do I make a Will?
Your best option is to have a lawyer write your will. Unintended consequences of a self-written will can defeat your intentions.
Handwrite or typewrite your wishes and sign the document in the presence of two witnesses (who must also sign the document) and a notary public who completes a “self-proving affidavit” and also signs the will.
Write out your wishes (entirely in your own handwriting) and sign the document.
Myth: “If I don not have a will, the state will get all or some of my assets.”
This is not true, unless there are no living relatives, including descendants of grandparents.
Advance Medical Directives
An advance medical directive puts in writing the kind of medical treatment you want if you become so ill that you can’t communicate your wishes. An advance medical directive can allow you to:
► Create a “living will” if you do not want “life-prolonging procedures” under certain conditions. If desired, make sure that the procedures include artificial hydration and nutrition.
► Grant one or more persons the right to make medical decisions on your behalf (only if you are unable to do so yourself).
► Direct that all or parts of your body be donated after your death.
In addition, consider having a Designation of Remains, another advance directive, which provides individuals with the authority to make funeral or cremation decisions and arrangements.
How do I make an advance medical directive?
Sign the form in the presence of two witnesses (who must also sign the document). The witnesses cannot be your spouse or related to you by blood. The Virginia State Bar has prepared a form for your use. The form can be accessed here.
More information on advanced directives as well as information in Spanish and other languages is available at this Virginia State Bar website.
Powers of Attorney
A power of attorney names someone to act for you in all matters relating to your financial and personal affairs. Therefore, whomever you designate must be someone you trust completely. The power of attorney can become effective immediately upon signing, only upon disability, or for a certain period of time. This document relieves your loved ones from having the court appoint someone in the event you become incapacitated.
Why would I need a power of attorney?
► In the event that you became incapacitated.
► To select the person you wish to handle your financial, legal, and personal matters.
► As a matter of convenience.
How do I make a power of attorney?
You should get an attorney to draft a power of attorney for you. You must sign the form in the presence of a notary public who should sign the form and add his or her notary seal.
If you do not have an advance medical directive and a power of attorney, there is a process for appointing court-supervised people to make our medical and personal decisions (the guardian) and your legal and financial decisions (the conservator). Even if you are married, your spouse does not have this authority unless a judge grants it to him or her. Payment for the court appointed guardian and/or conservator will come from your assets, so to preserve your money, giving a power of attorney to someone you trust is wise.
When does the court appoint a conservator or a guardian?
► Your family needs to make medical or financial decisions;
► Your doctor has determined that you are no longer making medical decisions safely;
► Your financial institution has determined that you are no longer making financial decisions safely, or;
► Your family is unable to take care of your business and you are incapacitated.
Will the court ask me what I want?
You and all of your immediate family must receive written notice that this is happening. You must be interviewed by an independent attorney experienced in guardianship situations. You have the right to be present when the judge hears evidence, to have an attorney represent you in front of the judge, to present your own evidence, and to have the case heard by a jury instead of a judge. The problem is that court appointments occur because you are unable to care for yourself or make competent mental decisions, so you really will not have a great role in this process.
Who may do this for me?
► A family member or close friend, or;
► If a family member or close friend is not available, an independent attorney will be appointed.
What is the process?
► A lawsuit is filed. This usually requires the assistance of an attorney. The person who wants to make decisions for you is the person who must start the lawsuit.
► The judge appoints an independent attorney experienced in guardianship situations to make a written report about you (from information derived from your medical records) and the person who is asking to make decisions for you. The attorney will be paid from your funds.
► The judge will hear testimony in open court.
► If the judge determines you to be incapacitated, the judge will give the guardian the right to make medical and personal decisions and the conservator the right to make legal and financial decisions for you.
► Both the guardian and the conservator must take an oath that they will act in your best interests.
► Each year the guardian and conservator must make written reports to the court about what decisions they have made.
There are mandatory fees associated with the written reports. This must be paid from your funds. They might also have to be bonded, which may also be paid out of your funds.
How long does this take?
The appointment process usually takes four to six weeks. In emergency situations, it still requires at least two days.
How much does this cost?
The costs will vary widely but it is not unusual for the total costs to be more than $3,000.00 (even in cases where you have very little money).