Through the years of serving Orangeburg residents, it has amazed me to learn how many people do not plan for what will happen when they die. I am not referring to the soul and relationship with God, which is of primary importance. I refer to plans to take care of loved ones after death. Maybe it’s my life in the Army, in which during combat deployment we were expected to plan for our death before going into harm’s way. As we know physical death is an absolute certainty which can happen any time, I am dumbfounded when I discover an elderly person has died without so much as a Last Will and Testament. It hits me particularly hard when I have found an elderly client or former client has died and they had done no planning for their Estate. I have learned to take the time to mention the importance of this planning when clients come to me for legal matter, particularly elderly clients. The planning goes beyond actual death, to cover the eventual situation in which one is near death but without the ability to tell others of their wishes. There are three primary documents I recommend they have for a basic Estate plan: A Last Will and Testament, A Durable Power of Attorney, and a Health Care Power of Attorney. Let me explain.
The Last Will and Testament is important. If someone dies without a Will, state law determined how that person’s property is divided. In South Carolina, without a Will half of one’s property is distributed to living children, and half to a living spouse. If one has no children all will go to the living spouse. Without a living spouse, it all goes evenly to living children (There are other rules if one has not had children or a living spouse, but for the sake of brevity I will stop at this level). In determining the Personal Representative, the court gives priority to a living spouse, but children all have equal priority. I have seen families break apart over fights over Personal Representative, or over the state rules for division of property. Many times, the living spouse may be a second or third spouse, and not be the spouse when the decedent’s (decedent is person how died) children were born. A Will ensures no fight over Personal Representative, and that property goes where it should and all know it is by the Will of the decedent. This can keep families from falling apart, save families money, and ensure the memory of the person dying is not marred by the perception the person didn’t care about the family. A simple Will can bring that peace and peace of mind knowing things will be OK with the family after death.
A General Durable Power of Attorney allows a trusted person to act on one’s behalf if one cannot conduct business due to physical incapacity. This is usually to a spouse, and prevents the major problems of handling business if one is in a physical state in which they cannot act for themselves, particularly if they are in a vegetative state without the hope of recovery. The Durable POA has the potential for misuse, and should only be given to someone trusted enough. That power would allow the person to draw all money from an account, for example. However, it will allow for necessary business to be conducted.
A Health Care Power of Attorney allows one to make decisions about life support and sustainment if the person is in this state: To a reasonable degree of medical certainty they will not recover enough to come off the life support or sustainment and the person cannot articulate their desires. For example, someone is in a vegetative state on a respirator and they are not expected to recover. The Health Care POA allows for the person with the power to cause life support to end so the person dies a natural death. It also allows for the person with power of attorney to end life-sustaining nutrition/hydration. The person who grants Health Care ‘POA can direct the life support/sustainment end, or give that person the power to decide. It can prevent one’s estate from being depleted on medical expenses, leaving nothing to family.
These are some simple documents to prepare and execute for the inevitable time of being called home to God. That preparation can be the last show of love to families, and something that will keep the peace when death comes. Just as important, it will offer peace of mind in life that one of the most important tasks is done.
Contact Attorney Bill Connor for Estate planning In Orangeburg SC
