Brauman Moore & Harvey Law Offices
Power of Attorney vs. Guardianship
Do I need a Power Of Attorney?
-- Yes, a power of attorney designates a person (attorney-in-fact) who can act on your behalf if you are unable to act or if you ask them to act. Having a good power of attorney document can avoid the need for a guardianship in many situations. The attorney-in-fact has a fiduciary obligation to act in your best interest. If you suddenly become unable to act for yourself, having a trusted person as your attorney-in-fact can avoid the need for an emergency guardianship. Guardianships can be costly and take up time and resources that could be used to focus on your care.
Can I get a Power of Attorney document on the internet?
-- While there are many "free" estate planning documents on the internet, not all documents are created equally. The Internet provides many conveniences to all of us, but seeking the help of an experienced professional to obtain good documents is always better than getting the "free" or "low cost" version. Many banks and insurance companies will reject the documents if they are not signed properly or do not contain the exact powers that are required to act on behalf of your loved one. We recommend getting a Power of Attorney document from an attorney who is experienced in Elder Law and Estate Planning. The document should include powers to apply for Medicaid benefits on your behalf.
Probate vs. Non-Probate
I have heard that Probate is slow and costly, how can I avoid it? Or should I try to avoid it?
Probate is the process of getting permission from the court to distribute your assets to your intended beneficiaries at your death. Your personal representative or executor will hire an attorney to assist them with presenting your Last Will and Testament to the court and ask the judge for authority to begin administering your estate. Probate does not have to take a long time, but occasionally it does. There is a minimum of 3 months that must pass from the time the estate is opened with the court, publication of the estate is made, and when the estate can be closed. This waiting period gives creditors time to file a claim and get paid from the estate assets.
Depending on the amount and type of assets as well as your family dynamics we will advise you as to whether avoiding probate is a good idea. Not everyone should avoid probate, however, it can save your family time and money in many cases.
In our office, we will listen to your concerns about your family and advise you about whether it is better for you to have a probate estate or a trust so that someone is in charge after you pass away, or whether completely avoiding probate is better.