November 14, 2014
Preparing the appropriate estate plan for an individual requires the legal skills of an attorney to put together the right documents in the right combination. At a minimum, the following estate planning documents are recommended by most attorneys:
Last Will and Testament. A Last Will and Testament is a legal declaration that directs the distribution of probate assets upon the death of an individual (“testator”). Probate assets are assets held in an individual’s name at the time of his or her death that do not otherwise transfer by contract (e.g., transfer on death designations, joint and survivorship, etc.).
Probate assets are subject to the oversight of Probate Court and administered in the County in which the decedent resided at the time of death.
The Last Will and Testament includes a provision for the designation of the personal representative (Executor) of the testator’s choosing, to be appointed by Probate Court.
Without a Last Will and Testament, the property passes in accordance with the Ohio Statutes of Descent and Distribution.
Durable Power of Attorney. A durable Power of Attorney is an instrument by which one person (the principal) appoints another person (the attorney-in-fact) as an agent authorized to perform specific or general acts for the principal. This financial power of attorney can be a very simple document, but one that gives significant powers to the attorney-in-fact. This estate planning tool is capable of facilitating the management of an individual’s affairs during incompetence.
Durable Power of Attorney for Health Care. Ohio law permits an individual to execute a Durable Power of Attorney for Health Care. With this document, an individual can designate a person to make health care decisions if the individual is unable to make such decisions on his or her own behalf.
The individual signing the Durable Power of Attorney for Health Care must be of sound mind. The decision maker may not be the attending physician or the administrator of any health institution involved in the patient’s care.
Generally, the person appointed in the Durable Power of Attorney for Health Care will have the authority to give informed consent, refuse to give informed consent, and to withdraw consent for any medical treatment. However, the person holding the Power of Attorney will not be able to refuse or withdraw consent to health care needed to maintain life, except in very limited circumstances.
Living Will. A Living Will is a document that provides a means for an individual to declare his or her intentions regarding the withholding or withdrawal of life-sustaining treatment, including CPR, when he or she is no longer competent to make an informed medical decision and is in a terminal condition or a permanently unconscious state.
Ohio’s Living Will law distinguishes between patients who are terminally ill and those who are permanently unconscious. Although both conditions must be verified by two (2) doctors, in Ohio there are additional protective measures for the permanently unconscious. Food and water may not be withheld from a permanently unconscious individual unless the patient has signed a Living Will with a special section in capital letters, which special section must be signed or initialed.
Under no circumstances may an individual be denied comfort care. Comfort care is defined as the minimum amount of care administered to alleviate pain and suffering, but not to prolong life.