Living Will	Will
Health Care Power of Attorney	Durable Power of Attorney
Special Needs Trust	Living Trust
Guardianship	Pet Trust

Living Will: Also known as a "Declaration of the Desire for a Natural Death." This is an instrument in which you can give directions about health care in the event that you are in a vegtative state (coma) or terminally ill without reasonable expectation of recovery. You can choose that your doctor discontinue or not initiate extraordinary means or you can choose that your doctor discontinue or not initiate extraordinary means and artificial nutrition nad hydration (tube feedings). None of these things will stop the doctor from giving you "comfort" measures, usually pain medication.

ESTATE PLANNING

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Raleigh, North Carolina 27609
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ADVANCED DIRECTIVES AND ESTATE PLANNING

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Will: Almost all estate plans have a will. This is a document that among other things, directs the disposition fo your probatable assets, the payment of your debts, appoints the executor, names a guardian for your minor or disabled child, and handles the management and closing of your estate. In some instances, it is appropriate to put a small trust in the will to handle property that might otherwise go to a minor child or disabled beneficiary. The will might also have special instructions about property or other matters. Even if you have a living trust, you will probably still need a will.

Health Care Power of Attorney: In this instrument you can appoint someone to act as your health care agent, giving him or her certain authority over your person in the event that you are become incapacitated or are unable to communicate your wishes. This instrument will give your agent a considerable amount of power and authority. For example, the agent can hire and fire doctors, nurses, admit you to the hospital or nursing home and make medication and surgery decisions. It can even suggest who should be your guardian should the need arise. The most recent HCPOA's will address the new federal HIPPA laws. Typically you do not need to have this document recorded before it is used, however, the North Carolina Secretary of State is currently registering HCPOA's for your convenience for a fee of $10.00.

Durable Power of Attorney: A durable power of attorney allows you as the grantor to appoint someone to manage your financial affairs. Again, this instrument grants considerable authority and should be carefully considered and drafted. Usually, it grants the appointed individual the power to handle all of your assets such as bank accounts, real estate, and investments, essentially anything to do with money or property. It can be set up to be effective upon execution (signing it in front of a notary) or it can become effective upon your subsequent incapacity or incompetence. The problem with the second is that some institutions are reluctant to accept powers of attorney that are "springing" i.e. "spring up" when you become incapacitated or incompetent. They will only accept those POAs that are effective upon execution. The "durable" in the title means that the instrument endures past your incapacity or incompetence. It should be recorded at the Register of Deeds before it is used. The Register of Deeds charges are currently $14.00 for the first page and $3.00 for every page thereafter in Wake County.

Special Needs Trust: This is an irrevocable trust, living or testamentary, used for the purpose of allowing the beneficiary to continue to receive certain benefits like medicaid or social security and still receive benefit of the trust assets. It has to be very carefully drafted to comply with regulations from those agencies.

Living Trust: Revocable or irrevocable. This is an instrument in which you name a trustee, perhaps yourself, to manage your financial affairs during your lifetime and /or direct the disposition of your property after your death. It may also direct the management of your estate if you become incompetent or incapacitated. A carefully drafted trust may reduce the costs nad difficulty of managing your estate at your death or incapacity. It reduces the cost of probate because property that passes through a trust does not incur probate fees the way that it would if it were to pass through your will. However, all estate property will not incur probate fees and a trust is more expensive than a will because it requires additional planning. It usually will not provide a tax benefit. Al though I do not suggest a trust for everyone, a trust may be a good idea if:
1. you have real property in another estate
2. you have children of a prior marriage
3. you have a disabled child
4. you have a family business
5. you want to keep your estate confidential
6. you have a particularly large or complicated estate
7. you have a large estate with primarily probatable assets
8. you want to plan for the management of your assets if you become incompetent or incapacitated

A trust is useful in some situations. It is more complicated and expensive than a will and everyone does not need a trust.

Guardianship: If you become incompetent and do not have the proper powers of attorney, you may become the subject of a guardianship proceeding. This is a legal process which occurs when someone petitions the court for the appointment of a guardian in a petition that alleges a person is not competent to care for himself or to make decisions for himself and/or his finances. If the Court finds the person incompetent, someone is appointed as the guardian of the person and/or estate. Sometimes this is necessary to protect the person and/or his assets However, it is the most expensive and the least flexible way to protect yourself nad your assets.

Pet Trust: This is a trust for the benefit of any pet you may name for their lifetime or twenty one years, whichever comes first. In other ways it is very much like other trusts.

Patricia Kay Gibbons

Attorney at Law