Most people understand the importance of a Will.  Few people realize that they can subject their families and
    loved ones to the expense of dealing with the Probate Court even before death, however.  If a person becomes
    incapacitated for some reason (for instance, because of a stroke, automobile accident, Alzheimer’s or some other
    form of dementia), unless the person has a Durable Power of Attorney or a Living Trust, a family member or
    friend will have to petition the local Probate Court to be granted the authority to take care of the person’s financial
    matters and personal care.  This is an expensive, time-consuming process that can be easily avoided.  An
    estimated fifty percent (50%) of all people will become either mentally or physically incapacitated before death.

    In my experience, every responsible adult should have the following legal documents, or
    their equivalent:

    A Will is a document that provides for the distribution of your property upon your death.  If you have minor
    children, your Will will state the person(s) you want to raise your child/children upon your death.

    A Durable Power of Attorney allows you to appoint a person to act for you in the event that you become
    incapacitated and therefore incapable of making your own decisions, particularly financial ones, such as
    paying your bills and buying and selling real estate.  Your Durable Power of Attorney can be drafted so that
    your incapacity must be certified by a physician of your choosing before any of the provisions of the
    Durable Power of Attorney go into effect.

    A Health Care Power of Attorney provides the name of a person who is authorized to make your health
    care decisions in the event that you become incapable of making them yourself.  Your Health Care Power
    of Attorney can be drafted so that your incapacity must be certified by a physician of your choosing before
    any of the provisions of the Health Care Power of Attorney go into effect.

    A Living Will describes what extraneous measures you do or do not want your health care providers to
    take in the event that you cannot communicate these wishes to the providers yourself.  It also provides the
    name of a person you choose who is authorized to make your health care decisions in the event that you
    become incapable of communicating them yourself.

    Probate Issues occur when:

    - A person dies, and has a will with instructions on how to handle his or her estate.

    - A person becomes incapacitated, physically and/or mentally, and does not have a valid Durable Power of
    Attorney and/or Health Care Power of Attorney.  In such cases, a relative or friend has to petition the local
    Probate Court for Guardianship and/or Conservatorship, which will allow the friend or relative to then make
    decisions on behalf of the person who has become incapacitated.

    - A person dies, leaving a will, and interested parties question the legitimacy of the will, or the mental
    capacity of the person who signed the will.

    Some people should have different types of trusts or other estate planning documents, depending on their
    own unique circumstances, and those of their family.  I can help you determine whether trusts or other estate
    planning documents are appropriate for you.  Living Trusts have become enormously popular in estate planning.  
    They are especially useful for clients who own property out-of-state.  The recent popularity of Living Trusts have
    eclipsed some of their disadvantages, however.  Generally, a Living Trust is more costly to establish than a will,
    simply because a Living Trust involves more complex legal drafting.  Further, the client must be vigilant about
    putting the title(s) to his/her assets in the name of the client's Living Trust, as the trust provisions will not apply to
    improperly titled assets.  A "pour-over" will is still required, and generally a Durable Power of Attorney, Health
    Care Power of Attorney and Living Will are still recommended.  Nonetheless, Living Trusts are extremely useful
    to many clients.  
WILLS, TRUSTS, POWERS of ATTORNEY, & LIVING WILLS
  "Thanks so much, Sue.  It
really helped me to have you
walk me through this process."
          Jim L., a probate client
The choice of a lawyer is an
important decision and should not
be based solely on advertisements.
LAW OFFICES OF SUSAN J. WIRTHLIN