“What estate planning documents do I need” is a common question I am asked as an estate planning attorney. There are three estate planning documents that everyone “needs” whether your estate is worth five hundred dollars or five million dollars. Here are three estate planning documents that every Minnesotan needs:
Health Care Directive
A Health Care Directive is a legal document that allows you to name someone else to make decisions about your health care if you are incapacitated and unable to make those decisions yourself. Having a health care directive is an absolute necessity. If you don’t have a health care directive and your family cannot agree on what type of care you should receive, your family may wind up in court petitioning for a guardianship to decide who will make choices regarding your health care.
Most Americans remember the Terri Schiavo case. Terri’s family spent over a decade and over a million dollars on attorney fees and court costs in a dispute over whether Terri should have been removed from life support. This unfortunate case is a scenario that could have been avoided with one simple document: a health care directive.
Power of Attorney
If I am asked “what estate planning documents do I need,” another estate planning document that I recommend every client have is a Power of Attorney document. A Power of Attorney is a legal document that allows you to appoint another person (known as an Attorney-In-Fact) to make decisions regarding your legal and financial affairs. If you are in an accident and you are left incapacitated in the hospital, you will likely still need to pay your mortgage, cell phone bill, file your taxes among other things. If you don’t have a Power of Attorney document in place, your family will not be able to access your bank accounts to pay your bills. They won’t be able to pay your mortgage with your money and they won’t be able to handle your other important legal and financial affairs. Without a Power of Attorney, your family may need to petition a Court for what is known as a Conservatorship. This is a proceeding where the Court will appoint someone to manage your legal and financial affairs. A Conservatorship may be ongoing and can last for years until the incapacitated individual either recovers or dies. Whomever is appointed by the Court will need to account to the Court every year to show what money was spent and how the assets were managed. These proceedings can be quite costly for the family and are easily avoided by having a Power of Attorney document in place.
HIPAA Waiver
A HIPAA Waiver is the third essential estate planning document that every Minnesotan should have. This is a document that allows you to name individuals who will have access to your medical records. If you are an adult (18 years of age or older), your family will not be able to access your medical records. It doesn’t matter whether you are a spouse, a child, or parent – in order to have access to someone else’s medical records, you will need a signed HIPAA Waiver. Clients often believe that they already have one on file at their doctor’s office. Unfortunately, most of the time, the HIPAA Waivers that they have signed are for the insurance company so that insurance company may view their medical records for billing purposes. Even where a client has signed a HIPAA Waiver at a local clinic that allows access to their family members, it is still a good idea to have a more “generic” HIPAA Waiver that will be effective at other clinics and hospitals. For Instance: imagine a scenario where you live in Burnsville, your primary care clinic is in Eagan, and you are in a car accident in Prior Lake. If the ambulance takes you to a hospital in Savage, your HIPAA Waiver at your primary care clinic in Eagan will do you no good. You need to ensure that you have a HIPAA Waiver that will be effective at all clinics and hospitals, whether it is Minnesota or anywhere else in the United States.
What Estate Planning Documents Should You Also Have?
While the above is a discussion about what estate planning documents you absolutely must have, you should also consider having several other estate planning documents.
Will
A Will is a legal document that allows you to decide who you want to receive your assets, who you want to administer your estate, and who you want to take care of your minor children if you pass away. If you don’t have a Will, then you are losing your opportunity to decide these important matters. Without a Will, a Judge in your local district court will decide who gets your stuff and who takes care of your kids based on Minnesota law. A common misconception about Wills is that they avoid probate. A Will does not avoid probate. Think of your Will like a letter to the probate court with instructions on who should get your stuff, who should take care of your children, and who should administer your estate when you pass. A Will governs only probate property. (Click here to read more about what triggers probate in Minnesota.)
What Estate Planning Documents Should You Consider?
Revocable Trust
A Revocable Trust (also known as a Living Trust or Revocable Living Trust) is an estate planning document that is not always necessary, but it can be a nice gift to your family. Think of a trust like a box that you create that will store your assets. You then create the rule book on how those assets are distributed to your loved ones. Because your trust can hold the legal title to many of your assets, proper utilization of a trust will avoid probate and can also help prevent your family from having to file for a Conservatorship if you become incapacitated. Whether you should have a Revocable Trust will depend on your goals, objectives, as well as the assets contained in your estate.
There are numerous other types of estate planning documents that you may also want to consider, including Family Limited Partnerships, Charitable Trusts, Irrevocable Trusts, Buy-Sell Agreements, and so on. Check out our Estate Planning Glossary if you would like to learn more about some of those planning options.
While reading about estate planning topics online can help you become more educated about what choice may be right for you, there is no substitute for sitting down face-to-face with an experienced Minnesota estate planning attorney to discuss the specifics of your individual situation. Contact our office today at (952) 658-6503 or e-mail us at info@goldleafestateplan.com to schedule a free initial consultation.
Zach Wiegand is a Burnsville, Minnesota estate planning attorney and the owner of Gold Leaf Estate Planning, LLC. Gold Leaf Estate Planning is an estate planning law firm that handles probate and trust administration in Minnesota. We serve the Twin Cities metropolitan area with a focus on estate planning for clients in Burnsville, Eagan, Savage, Prior Lake, Lakeville, Apple Valley, Eden Prairie and the South Metro. The firm also handles probate in Dakota County, Washington County, Scott County, Hennepin County, and Ramsey County. Zach was named a Minnesota Super Lawyer – Rising Star for both 2017 & 2018 and he is a member of WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at zach@goldleafestateplanning.com or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337.
