If you live in Montana, this article will help you:
- Understand life planning documents and legal terms
- Download free write-in-the-blank planning documents
Why would a person plan for being ill or dying?
While it is not easy to think about being ill or dying, preparing for either event can make it easier for your family should something happen to you. An attorney can help you organize your thoughts and complete documents to fulfill any wishes you have about your family, property, and future health care decisions. Coming up with a plan now can help your family members, who may need to handle your affairs later.
What should I do about health care decisions?
Think about whether or not you have someone you believe will carry out your wishes as to medical care. If you do, or if you want to convey your wishes about measures that you do not want taken by medical providers, you can use a Living Will and/or a Health Care Power of Attorney (HCPOA). A Living Will is a statement about a more short-term situation where life-saving measures are temporary, like if you were to get in a car accident. The Health Care Power of Attorney is for longer periods of time, like if you suffer a cancer diagnosis.
Do I have to have a Living Will or Health Care Power of Attorney to let medical providers know my wishes?
No. You can (and should) communicate your wishes to your primary provider, using what is called a Medical Directive signed by your primary doctor. These directives are not necessarily legal documents, but can help with the hard discussions about what kind of medical treatment you may or may not want. For example, you may not want an artificial feeding tube but you may want treatment to reduce pain and help you be more comfortable.
But something could happen that prevents you from communicating your wishes. For example, a coma. A Living Will signed and provided to the state End of Life Registry and your medical providers is a good legal document for conveying your wishes if you are ever unable to do it yourself. Also, a Health Care Power of Attorney says who will make decisions when you cannot communicate your wishes. The person you name to make decisions for you is called your Agent.
What should I do about making sure my monthly bills are paid?
If you are the person who usually pays the monthly household bills, you should plan who would pay the bills if you can’t. A Financial Power of Attorney (POA) is a legal document that can help with this plan. It lets you name someone you know to be your agent to take care of your finances.
What should I do if I own real property and have specific wishes as to who should inherit it?
If your name is on a deed for real property, there are three documents you should consider using to protect it and name who should inherit it.
A Homestead Declaration can protect your family from losing your home if you can’t pay medical bills and creditors come after your assets. You can only use a Homestead Declaration to protect up to $250,000 of value in your primary home. A Homestead Declaration won’t protect a second property. A Homestead Declaration can protect your mobile home, if it is your residence.
You’ll also want to think about a Transfer on Death Deed. This form names who you want to give your real property to, and their ownership rights. This form used to be called a “Beneficiary Deed.”
Another document you may want to complete is a Will. The longer name is a Last Will and Testament. A Will can include real property and also personal property, like family heirlooms, furniture, jewelry, and other items that you can touch and move. A Will can also nominate someone to act as a guardian for any of your natural or adopted minor children.
What about financial accounts, IRAs, and insurance benefits?
Most financial institutions will give you paperwork to name who should get the money in your account if you die. Those are often called Beneficiary Forms. You likely filled those out when you opened the account. It’s a good idea to contact all the financial institutions you do business with for a copy of the Beneficiary Forms you gave them. You may want to update these forms if something has changed.
It is important to know that Beneficiary Forms may override what is in a Will about that specific account. For example, if you name Sally in your Will to get your IRA but your Beneficiary Forms with your investment firm say it will go to Jesse, your IRA will likely go to Jesse.
A Beneficiary Form is used for nonprobate transfers of property. You can learn more by reading the MSU Extension's MontGuide on Nonprobate Transfers.
What do I do with the documents I fill out?
In the Take Action section below you will find links to most of the documents referenced above. Do not use the documents if you do not understand them. Seek advice from an attorney (maybe an attorney at MLSA). Each document has unique requirements as to:
- Who must sign and when;
- Whether a notary public must watch someone sign;
- Who must get a copy of the document (including whether or not you must file the document with the government); and
- Where you should keep the document.
The language and instructions on the documents will help answer these questions. If you have any questions about filing out or storing a document, seek legal advice.
What else should I know about these legal documents?
Any legal document granting power to someone as your agent must be drafted with language clearly stating your wishes. It should also be drafted to prevent the person gaining the power from using the document in a way that is against your wishes or your best interests. Do not let anyone control your choice of agent or the type of power you wish to grant. Always carefully read any document before you sign it and ask all questions you have if the language in the document does not clearly state your wishes.