Articles Posted in Power of Attorney

This time of year brings families together to enjoy food, fellowship, and maybe even a little football. Whether your Thanksgiving involves a small gathering of close friends or a large get-together with distant relatives, this is a time to be thankful for all of those loved ones in our lives. As you meet with your loved ones, it is a great opportunity to think about your estate plan. Being around your family may help you evaluate who would best serve in certain roles or who may need some extra protection in the future.

While your estate plan may not be your first concern, having an estate plan in place should be a priority. After all, having an estate plan in place can provide you with the peace of mind that your loved ones are cared for. You may be wondering what exactly makes up an estate plan? In its most basic form an estate plan is comprised of legal documents that explain where you want your assets to go or who you want to make decisions on your behalf if you are unable to do so.

A last will and testament is one of the most important parts of an estate plan. In its most basic form, a will documents where a person’s assets should pass upon death. However, a will does much more including the ability to set up a trust, nominate a trustee to manage the trust, nominate a guardian for any minor children, and nominate a potential executor of the estate.  Communicating these decisions to any family members can allow for a helpful discussion and can eliminate any surprises down the road.

You have probably been told before that a day signified a certain nationwide event like National Donut Day or National Hot Dog Day. Often these days are used to celebrate and bring awareness to certain areas in life. The same goes for estate planning. October 20-26 marks this year’s National Estate Planning Awareness Week. While National Estate Planning Awareness Week does not sound like as much fun as National Donut Day, it does seem to hold much more importance. With upwards of 120 million Americans who are lacking an up-to-date estate plan to protect themselves or their families in the event of untimely sickness, accidents, or even death, obviously this week emphasizes the value of having an updated estate plan in place.

So why is having an estate plan so important? An estate plan can ensure that your loved ones are provided for if you were to pass away or that a loved one is able to make a decision on your behalf if you were unable to do so. In a general sense, an estate plan is typically comprised of legal documents that designate your specific decisions to a number of choices thereby eliminating any potential uncertainty.

One of the most basic estate planning documents is a last will and testament. This document primarily directs where you would want your assets to pass in the event of your death. Without a will, state statutes will determine where your assets would pass upon your death. A will can also direct who should be appointed as a guardian for any minor children. A will can also direct who you want to act as the executor of your estate. It is important for adults of any age to have a last will and testament in place.

An increasing number of elderly individuals in Tennessee have begun adding their children as joint account owners on their bank account. Understandably, older parents may need assistance in paying their bills or managing their finances. However, it is important to understand the risks in adding a joint owner and the alternatives that people have. If you have questions about what alternatives you or your loved ones may have, contact The Higgins Firm.

In adding a child as a joint account owner on a bank account, many parents do not understand the impact that action can potentially have on a person’s estate. If a parent passes away leaving only one of their children as the joint account owner, that child would be considered the sole legal owner of the account. He or she would not be required to distribute the assets to anyone else as the sole owner of the account. The decedent’s Will would not have any authority as to any potential distribution of the assets because the decedent did not have sole ownership. A will only determines how assets should pass if the asset was solely owned at the time of the decedent’s death. A parent will want to take this into account when developing an estate plan.

Another potential issue in adding a child as a joint account owner is the issue of creditors. When individuals become joint owners of an account, that asset is obviously considered to be jointly owned. If the child who co-owns an account is subject to the claim of a potential creditor like in a lawsuit, then the account is considered to be the child’s asset and would be subject to the claim of the creditor. Similarly, if the child was dealing with bankruptcy proceedings, that asset would be considered to be a part of his or her assets and would thereby be subject to the bankruptcy proceeding. It is important to understand such risk in adding a joint account owner.

Recently attorney Jim Higgins stopped by WSMV’s Better Nashville to discuss the differences between a power of attorney and a conservatorship in Tennessee. Both of a power of attorney and conservatorship enable another person to make decisions or take actions on an individual’s behalf. However, there are different circumstances as to when each of these legal actions should be utilized. For instance, a power of attorney is a legal form utilized when the principal, or person granting the decision making authority, is mentally capable of granting that power to another person. In contrast, a conservatorship is a legal proceeding in which a court designates another individual, the conservator, to make decisions and take actions on behalf of the ward. The video below provides some further insight into the benefits of each. If you have any questions regarding a power of attorney or a conservatorship in Tennessee, contact The Higgins Firm.

Although many of us are willing and capable of making decisions and acting for ourselves, there are some who incapable of doing so for a number of reasons. Whether it is due to a temporary illness or a lifelong disorder, many individuals will rely upon the help of another to assist in making certain decisions or to perform specific acts. There are certain legal avenues that can be taken to enable another in making these important decisions. Both a power of attorney and a conservatorship are legal actions that allocate the decision making authority of a person to another individual. While a power of attorney and a conservatorship achieve the same goal of allocating that authority to another person, these legal actions are utilized in different circumstances depending on the situation.

It is important to identify the differences between a power of attorney and a conservatorship to know which act should be used when. A power of attorney is a written legal document that specifically allocates certain rights or powers to act or make decisions to another person. The person granting these powers is known as the “principal” or “grantor” and the person receiving the powers is known as the “agent” or “attorney-in-fact.” In other words, the principal grants certain powers to the agent who can then act on the principal’s behalf. A power of attorney can be drafted to grant a broad range of powers or a very narrow and specific power. In addition, a power of attorney can designate exactly when the powers shall be allocated to the attorney-in-fact. For instance, a power of attorney could come into effect immediately upon the principal’s signature or the powers could be allocated only upon the incapacity of the principal. A power of attorney is an easy and cost effective way to allocate authority to another individual. However, one of the main requirements of a power of attorney is the ability or capacity of the principal to allocate these powers. This document is only effective if the principal has the mental capacity to perform this legal act.

If the principal does not have the mental capacity or is not of sound mind to execute the power of attorney properly, then a conservatorship may be needed. A conservatorship is a formal legal proceeding in which a judge determines that the individual is not capable of making decisions for him or herself and that decision making authority should be granted to another person. The person who is appointed is known as the “conservator” while the disabled individual is known as the “ward.” Because a conservatorship is a legal proceeding that essentially takes away the decision making rights of another individual, it is a more involved and time intensive process that includes filing a number of required documents with the court and a hearing in front of a judge. In addition, the court will designate exactly who the best individual is to be appointed conservator at the hearing. A conservatorship will typically last throughout the life of the ward and will only be terminated by a judge.

As a Tennessee probate attorney, I receive a number of calls regarding Power of Attorney and the ability or inability to perform certain tasks on behalf of someone else. Many people want to know what can or cannot be done with this legal document. So often, many do not understand what the limitations are on the person who has been allocated these powers or authority. Obviously, being given such authority in a Power of Attorney is a great responsibility. If you have questions regarding a Power of Attorney, contact Nashville estate lawyers at The Higgins Firm.

What exactly is a Power of Attorney? A Power of Attorney is a legal document that gives certain powers to an agent, also called the “attorney-in-fact,” to act on behalf of the person who is allocating the authority, also called the “principal.” In other words, this legal document shows who and what powers that the attorney-in-fact has been given by the principal. The document will explicitly state what powers are being granted and in what circumstances that authority is given.

While the Power of Attorney does not have to be approved by a judge or any other court proceeding, an attorney can draft this document and tailor the powers being granted according to the principal’s wishes. Some individuals may elect to grant only certain powers to the attorney-in-fact. For instance, an individual may utilize a Power of Attorney to allocate authority strictly for an automobile sale. Others may choose to grant a wide range of powers to the attorney-in-fact. Often, elderly people may execute a Power of Attorney granting authority to a family member to handle a wide range of financial affairs because they are no longer able to do so themselves easily. You should be aware of what powers that your Power of Attorney grants as well as the powers that it does not grant.

Recently attorney Jim Higgins stopped by WSMV’s Better Nashville to discuss essential documents that every family should resolve to have this year. Those essential documents include a last will and testament, a power of attorney, and a living will. There are any number of reasons why you may put off these drafting legal documents. However, these legal documents are not expensive, and they provide your family the protection that they deserve. You can watch the interview with attorney Jim Higgins below. If you have any questions about a will, power of attorney, or living will for your family, be sure to contact The Higgins Firm today. One of our estate lawyers would be happy to provide you with any answers.

 

Now that we have entered 2014, you may or may not still be keeping your New Year’s resolutions. Hopefully, your resolutions are going strong and you have developed great habits throughout your life. However, if you have already slipped back into the habit of eating a little more junk food than you planned on doing, that does not mean that you should give up on all of your plans for this year. Similarly, you should resolve to review your estate planning documents. There are a number of reasons why you should periodically review your estate planning documents. Doing so can make sure that you are set for 2014 and beyond.

Reviewing Your Will Following Major Life Changes

It is always important to review your will following any of your major life changes. Whether you recently had a child, got married, or lost a loved one, each of these major life events can impact your will. As a result, you should review your will for any potential updates that need to be made.  If you’ve recently had or adopted a child, you should update your will. Similarly, if you have gotten married, you will want to add your spouse to your will.

Recently, attorney Jim Higgins appeared on News Channel 5’s Talk of the Town to talk about some simple steps that everyone should take to protect the assets within their estate. These legal documents are inexpensive, easy to obtain, and can help prevent potential harm to your estate. Drafting a Power of Attorney for a person’s finances and a Power of Attorney for a person’s healthcare can ensure that any decisions made on your behalf in a time of need are made by someone that you trust. You can watch Jim’s interview below. If you have any questions about steps that you can take to protect your assets, contact the Tennessee estate protection attorneys at The Higgins Firm.

As 2013 comes to a close, many people will be looking beyond into 2014 for a fresh start. Many of those may be looking to accomplish bigger and better things. As a result many people will look to set New Year’s resolutions or goals to accomplish during 2014. So many resolutions require a large amount of planning and effort.  Some popular New Year’s resolutions typically include getting into shape, eating better, or being more frugal.  However, one of the more important resolutions that you can make is developing your estate plan. The good news is that developing an estate plan does not require a great deal of time or expense. Creating your estate plan can end up being one of your easier resolutions while also being one of the more important decisions that you can make.

You may be wondering what exactly is involved in developing an estate plan. An estate plane can involve a number of different aspects to make sure that your wishes are carried out if you were ever unable to make those decisions. One of the most important pieces of an estate plan is a last will and testament. A will in its most basic form designates where you want your assets to go upon your death. However, a will can include much more than the distribution of your assets. A will can allow you to specify a guardian for any minor children, set forth specific gifts to certain individuals, or even designate your wishes regarding your remains.

Another important piece of estate planning is a health care directive. A health care directive is a legal document that sets forth your wishes for your care in the event that you are unable to make a decision for yourself. There are number of different documents that can be considered a health care directive including a living will, a power of attorney, or an appointment of a health care agent. While each of these documents serves a different purpose, they each allocate the decision making authority regarding your health care treatment to another person if you are incapacitated.