Volume I No. 9 09/01/09

Will -- Contingent Trust - Living Will -- Anatomical Gifts - Do Not Resuscitate (DNR) -- Power of Attorney -- Medical Durable Power of Attorney

What documents and papers should be kept together and easily located?

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Introduction

What does all this mean? Do I really need any of this? Why should I care?

This is your opportunity to give directives in advance to those people who will be responsible to make decisions about you. That is why they are often called advance directives. It is in your control to make your own decisions rather than leaving them up to others to make on your behalf.

The subject of death and dying is so very fraught with so many emotions, memories, pain, sense of loss and a real desire to just suppress any of this stuff. It is like going to the doctor. Nobody likes to go but it is a necessary part of life -- assuming you choose life. In this short article, I will provide you with a general understanding of each of these documents. In a future article, I will discuss each document in more detail so that you may decide if now is the time to grab the bull by the horns and hire an attorney to prepare these documents for you and for your family. The C.R.S. that I refer to in the article is the Colorado Revised Statutes. These are the laws that control in Colorado. If you are from another state, you should review the laws of your state. Finally, this article does not provide legal advice. Rather, it should give you an insight into the various forms that you may have prepared to designate your wishes.

Dying without a Will -- Intestate

First of all, what happens if you die without a will? Your estate (your assets and belongings, basically your "stuff") will be distributed as an intestate proceeding. (C.R.S. 15-11-101 et seq.) When a person dies without a will, their estate is disposed of to the heirs of the decedent. Now, this is more complicated than it appears at first glance. For this reason, it is advisable to seek the advice of an attorney to properly inform you about the proper shares to a decedent's heirs. To qualify as a surviving heir, a person must survive the decedent by 120 hours.

It is best to have a will.

Will

A will is the most commonly understood way to express your wishes about how you want your estate distributed after your death. It provides language to inform survivors how you want your property and assets to be distributed and to whom after your debts are paid. Assets include such things as your money, personal items, cars, business interests, etc. The will informs survivors and the public who is to be your personal representative. A personal representative is what is commonly and formerly known as an executor. A personal representative is the responsible party to administer the deceased person's debts, distribution of property and any other affairs that may require administration and management. It also states your wishes as to whom you designate as a guardian for a minor or a disabled adult child.

To make a will, you must be 18 years or older -- who is of sound mind. (C.R.S. 15-11-501) The person making the will must have capacity to understand what s/he is doing. It must be dated and signed. If the maker of the will cannot sign, then, s/he may tell someone to sign it for him or her, as the maker of the will observes the signing on his or her behalf.

A will may be typed. If it is typed, it must carry the signature of two disinterested witnesses. Accompanying their signature must be a statement that certifies that you signed the will voluntarily and that you were of sound mind. It is best practice to have the signatures notarized.

A person may handwrite a will. (Holographic Will. C.R.S. 5-11-502) If a handwritten will is not witnessed, it will still be valid if the signature and contents of the document are in the handwriting of the person who made the document.

A will may be revoked by the writing of a new will that expressly or by inconsistency or intent establishes a new will.

When I prepare estate documents for my clients, I often provide them with a document that is a separate writing or memorandum for the purpose of identifying specific items that s/he would like to leave to a particular family member or person. (C.R.S. 15-11-513) Often a mother will wish her daughter to receive her rings and jewelry or a father will want his son to receive his hunting and fishing equipment. For a memorandum to be valid, you must mention it in your will. It does not need to be witnessed or notarized, only signed and dated. For these purposes, it is appropriate to leave a separate writing or memorandum so that inappropriate angst and fighting over specific items does not occur after the death of a person.

A testator (person preparing the will) who prepares his/her will may deposit it with a court during their lifetime for safekeeping. The court will keep the document sealed and confidential until s/he dies. In some specific circumstances, a person who is identified as a conservator (a person who is appointed by the court to manage an estate of one who is unable to handle their own affairs effectively) for the testator may be allowed to view the will. (C.R.S. 15-11-515) When a person dies, the will must be be delivered and lodged with the court in the county where the decedent resided or was domiciled at his or her death.

Will with a Contingent Trust

Often a will may have a contingent trust. A trust provides a means for a testator to name a person or entity to manage the assets of a trust and any income for the economic benefit and well-being of the beneficiary(s) -- child(ren), or disabled person(s), or others that are identified as recipients of the assets or income of the trust. A contingent trust may be added to a simple will for the benefit of minors under the age of 21 or a dependent with a disability. This trust is contingent upon the testator dying while s/he has children that are minors or when the testator is responsible for the care of a disabled person. Use of a trust is a more advanced legal option for the protection and care of children and/or persons with a disability who are under their care.

Living Will

A Living Will -- Declaration as to Medical or Surgical Treatment - is a legal device that allows a person to declare and specify the life prolonging medical techniques that will be administered or withheld when a person has a terminal illness. Simply stated, a living will informs others whether or not to withhold life-sustaining medical procedures in a situation of terminal illness.

The law states that the living will may take effect only if the patient's physician and one other physician certify in writing that both (1) the patient has an injury, disease or illness which is not curable or reversible and , which in their judgment, is a terminal condition; and (2) for a period of seven consecutive days, the person has been unconscious, comatose or otherwise unable to make or communicate responsible decisions concerning his or her person. If both of these conditions are present, the living will directs that life-sustaining procedures be withdrawn and withheld. In Colorado, there are specific forms that a person may complete to specify what actions are to be taken. For example, directives may be given to state that: (1) artificial nourishment shall not be continued when it is the only procedure being provided; or (2) artificial nourishment shall be continued for ## days when it is the only procedure being provided; or (3) artificial nourishment shall be continued when it is the only procedure being provided.

Anatomical Gifts

Colorado also allows for a person to designate whether s/he wishes to make anatomical gifts. These gifts can be (1) any needed organs or tissues or, (2) specific organ or tissues.

­Do Not Resuscitate Order -- CPR Directive

Colorado Law allows a person to give a CPR Directive. This is an advance order to doctors and others that expresses a person's wishes regarding the administration of cardiopulmonary resuscitation. To give this directive, a person must be over the age of 18 and have decisional capacity. A person can state to others whether s/he wishes to be resuscitated or not in the event of cardiac or respiratory arrest or malfunction. The presumption in Colorado is that you want CPR, unless you and your doctor sign a form that allows you or your agent to refuse CPR.

Power of Attorney

A Power of Attorney is a legal instrument, in writing, that designates one person as an agent for the principal to act with authority to perform certain specified acts on behalf of the principal. The agent becomes the "attorney in fact" for the principal. This power is revoked upon the death of the principal. A Durable Power of Attorney remains effective in the event that the principal becomes disabled. The specific Power of Attorney that you may select depends upon your needs, trust of others, and understanding of the law. This is a very powerful instrument. I strongly advise you to seek the advice of an attorney before you give someone your power of attorney. By giving another person the power of attorney, that person may act legally with full legal authority on your behalf. Power of Attorney must not be given without serious consideration and understanding of the legal authority that you grant.

Medical Durable Power of Attorney

A Medical Durable Power of Attorney allows one person (principal) to name another person (agent) to act on his or her behalf. This allows the named agent to make decisions for the principal regarding his or her health and medical care. It is durable because it valid even if the principal is incapacitated and cannot make decisions for himself or herself. For example, an agent may make decisions about medical treatment for diagnostic testing or any plan of medication and surgical procedures. The agent can also make decisions to withhold medical treatments that might sustain or prolong life.

The Medical Durable Power of Attorney will generally be valid until the power is revoked by the principal, the principal dies, or where the principal and agent are married and they subsequently get divorced or legally separated, then, the Power becomes invalid.

What documents and papers should be kept together and easily located?

The following is a general list for your reference:

Birth Certificates

Marriage License

Divorce Decree, if any

Child Adoption Decree, if any

Military Service Records

Social Security Number

Insurance Policies

Automobile Title(s)

Stock, Bonds and Mutual Fund Account Information

Promissory Notes

Deeds of Trust or Mortgages

Leases

Property Documents

Saving and Checking Account and CD Information

List of Credit Cards

Appraisal of Valuables, if any

List of Liabilities

Burial Plans

Key to Safe Deposit Box

Will and Trust documents

Power of Attorney Documents

Living Will

Medical Durable Power of Attorney

Memorandum of Specific Gifts

In closing, this article is a very general overview of some of the legal instruments that an attorney may prepare for you. This article is not legal advice but provides you with a general understanding of ways you can help your family to know your wishes and to avoid conflict in very sorrowful and trying moments that come to all of us.