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Legal Considerations

There are five basic estate planning tools for Washington State residents: a will, Durable and General Power of Attorney for Health Care and/or Finances, Advance Directive to Physicians, and a Community Property Agreement.

A will can be simple or complicated depending on a person’s wishes and estate. It basically tells survivors what the person wants done with their possessions. A will can also include emotional gifts written down for the survivors. A will of any complexity or in a family with strong opinions should be done with a lawyer’s assistance. A very simple, non-contested will can be completed on blank forms obtained from a stationary store or downloaded from various websites.

A Durable Power of Attorney for Health Care should be completed by anyone of adult age. It names up to three people who are empowered to speak for the patient if there is some situation where the patient cannot express themselves. It is expected that the patient and the designees have had a chance to talk over the patient’s wishes and have defined desired quality of life levels so that the designee or attorney in fact can ensure what the patient would want done for them.  The patient always retains primary decision making power unless incapacitated. This form is available at care facilities, legal offices, offices supply stores and the Web. This does not necessarily need to be notarized.

A Durable and General Power of Attorney for financial matters is a powerful document that allows another, trusted person to manage your finances for your benefit if you are incapacitated or unavailable. Obviously, this person(s) needs to be carefully chosen and willing to take this responsibility. This is another essential support for a single person who may be ill or unable to make financial decisions and needs to maintain their financial matters. Spouses sometimes find this necessary in applying for Medicaid benefits. This form needs to be notarized and possibly done in connection with lawyer’s advice.

Both Durable Power of Attorney forms allow people to avoid the expense and delay of a guardianship proceeding in the event of future incompetency. They can be very valuable for children trying to assist elderly parents, single persons, or spouses needing to apply for Medicaid benefits for one partner. With current confidentiality laws, a DPOA for Health Care may be necessary for any medical information to be shared with the patient’s non-spouse support persons.

The Advance Directive, or what was previously called a Living Will, may never be used but can be essential in accomplishing the terminal-care wishes of a person when he or she can’t speak for themselves. If a person is judged by two physicians to be in a permanent vegetative state or coma with no expectation of recovery, the AD is used to express what the patient would want in this situation. (For example, to have artificial nutrition and hydration continued or withdrawn.) Obviously, this is a guidance tool and hopefully the person and their family have talked over life stances and preferences before signing this form. This is not a legally binding document but does carry great weight in care decisions. It is a support to family or friends, since it can answer questions as to what the patient really wanted for themselves. This form is available from health care facilities, lawyers, office-supply stores, and on the Web.
It needs to be witnessed by two disinterested witnesses who would not benefit from the death of the signer. This is a partner document for the Durable Power of Attorney for Health Care described above.

The Community Property Agreement can assist in avoiding probate between spouses, even in a so-called community property state. The primary purpose of a Community Property Agreement is to declare that all assets owned by a married couple constitute community property and upon the death of one spouse, all property shall be transferred to the surviving spouse without probate. This document is unique to Washington State, only available for married couples, and saves the legal fees of probate upon the death of the first spouse. This does not fit all couples. So legal assistance is strongly recommended.

This is a brief and rough description of some very important, life changing choices and documents. Further exploration and use of legal advice is strongly recommended. The appropriate consideration and use of these documents can open the door to necessary family discussions, encourage deeper thought on what each one truly feels is important in quality living, enable a person to maintain some control of their life even if not able to speak up for themself, and do away with some stressors involved with already stressful events.