Developing an Estate Plan: Drafting a Will and Designating Powers of Attorney

By: Stacey Nickens

Christmas wish lists were popularized in the late 1800s. An illustrator, Thomas Nast, published a series of pictures depicting Santa Claus reading letters from naughty and nice children. Nast later drew and published a picture of a child mailing their letter to Santa. These images kicked off the trend of children sending their wish lists to Santa Claus each year.

Your will is sort of like these wish lists. Your will details your desires and hopes so that your loved ones can fulfill your end-of-life wishes. You want to draft both a will and a living will. The will ensures that your assets are managed as you see fit, while your living will ensures that your end-of-life healthcare fits with your desires. Finally, you want to establish powers of attorney. Establishing powers of attorney is like addressing a wish list to the correct person. You’re ensuring that your wishes are carried out by the person or persons that you trust most.

Drafting a Will

Some of your assets have designated beneficiaries and will accordingly pass to those individuals. However, you should consider drafting a last will and testament to detail how you would like to pass on your possessions and other assets that don’t have beneficiary designations. Without a will, these assets will be subject to state intestacy laws and may not be distributed in a manner you would see fit. A will further names an executor to manage your assets. Doing so ensures that you trust whoever will manage your assets. Otherwise, your assets will be managed by whoever the court appoints. Finally, if you have minor children, a last will and testament names their caregivers in the event of your passing.

You can choose to draft a will online, if your situation is fairly simple. You can also hire an attorney to assist with this process. Even if you choose to draft your will online, it’s usually prudent to have an attorney review your will to make sure it passes legal standards. Before it is final, a will needs to be signed by two witnesses and notarized.

Drafting a Living Will

Your living will outlines your desires for end-of-life care. These desires can include your opinions on resuscitation, feeding tubes, and other life-extending healthcare procedures. Drafting a living will ensures that your needs and desires are heeded, even if you are no longer able to make your own healthcare decisions. You should also have a more detailed conversation about your healthcare desires with your healthcare power of attorney.

Designating Powers of Attorney

Decide who you trust to manage your financial and healthcare decisions in the event of your incapacity. You can name the same person as both your financial and healthcare powers of attorney, or you can select two different individuals. As with a will, you can draft a document for these designations online or do so with an attorney. However, this designation is a legal document, and you want to make sure it is done properly. Again, it will need to be signed and notarized.

When selecting a healthcare power of attorney, you may want to choose someone who lives nearby. A healthcare power of attorney should be someone who can get to your bedside quickly and begin directing your healthcare. Additionally, you will want to select backups for both powers of attorney in the event that your primary designation cannot fulfil their duties.

Finally, you will want to have a detailed conversation with both powers of attorney. You should tell them where and how to access your designation documents. Your financial power of attorney should know how to access your master directory. (Click here to review drafting a master directory of your assets and liabilities.) Additionally, your healthcare power of attorney should know about your living will and end-of-life care wishes.

For further assistance in developing an estate plan, please reach out for a more in-depth discussion. You can also review our articles on selecting a trustee and developing a master directory