Legal Documents to Have in Place Before Your Loved One Passes

Legal documents are the last thing anyone wants to think about after a loved one passes – yet when the time comes they are so necessary. In our latest article, we shed light on which documents every senior needs to have in place before they pass on.

We chatted to Kristel Patton, an Arizona attorney who specializes in estate planning for seniors, about the most important legal documents to have in place before your senior loved one dies. With Kristel’s sound advice, we’ve compiled a list of six documents every senior needs to have in the event of sudden death.

While death remains an unpleasant reality, you can still allow yourself and your family sufficient time for grieving and getting closure after the death of a senior loved one. Imagine being inundated with paperwork, having to attend probate court meetings, and trying to sort out loose threads while trying to process and grieve for your deceased loved one. Luckily, this situation is entirely unavoidable if you have the right legal documents in place before your loved one passes.

Legal Documents to Have On-Hand Before Your Senior Passes:

– Medical/Advanced Directive (Living Will)

– Power of Attorney for Healthcare

– Mental Health Care Power of Attorney

– Power of Attorney for Finances

– Revocable Trust

– Will

Why is Power of Attorney Documents so Important?

“The Health Care Power of Attorney, Mental Health Care Power of Attorney, and Living Will (advanced medical directive) are vital as they give authority to make health care decisions and help guide the health care agent as the agent steps into the client’s shoes to make decisions on their behalf,” Kristel notes. 

“In most cases, the Health Care Power of Attorney and Mental Health Power of Attorney is the same agent or person. This comes down to personal preference and the unique history of each client.”

What is the difference between a Living Will and a DNR?

“In Arizona, we have something called a Pre-Hospital Medical Directive. It’s also known as a DNR (Do Not Resuscitate Order). A DNR merely states that your senior chooses not to receive resuscitation, should the need arise. Many people confuse this with a Living Will. However, in Arizona, they are, in fact, two very different documents. The Pre-Hospital Medical Directive must be printed on orange paper – letter-size or wallet-size – to be signed by the client, a health care provider, and a witness. I frequently counsel clients to talk with their health care provider who can help them determine the appropriate time for executing this important document.” 

“A Living Will, on the other hand, is a legal document wherein the patient designates if they want life support continued if they are incapacitated and in a “terminal condition,” an “end-stage condition,” or in a “persistent vegetative state.” 

Still unsure about the difference between a Living Will and a DNR? Check out Kristel’s explainer video on the topic.

 Does My Senior Need a Revocable Trust and a Will?

“When it comes to a revocable trust and Will, I frequently recommend that my clients make use of a revocable trust over a Will alone. The Will is not effective until the client dies and the document is submitted to the probate court. The probate process is public, and documents filed with the court are available for all to see. On the other hand, a revocable living trust is effective as soon as it is signed and is a handy tool if the client becomes incapacitated. The trust is also a private document and is administered privately by the successor trustee without the involvement of the probate court.” 

 “There are a couple of key things to know about a trust. The first is that the client MUST put their assets in the trust to be as effective as possible. If a client fails to do so appropriately, the successors may have trouble if the client becomes incapacitated. Second, the client must work with an experienced attorney who can give them legal advice on the proper way to add assets to the trust.” Kristel warns.

“The third thing to note is that it is still imperative to have a Will even if you have a trust. The Will works as what I like to call “a sweater in the suitcase,” meaning it is something we hope we don’t need in the future, but we have it just in case! The Will in this situation is what we call a “Pour-Over Will.” 

The trust is the beneficiary of the pour-over Will, and the Will is used to ensure that any assets left out of the trust are placed in the trust through the probate process after the client dies. In this way, the Will is used as a catch-all to ensure that all assets are accounted for and assigned to their rightful beneficiaries. 

A common misconception I’ve encountered is “I don’t want the state to take my money after I die.” Rest assured, this is definitely not the case. It’s for this exact reason that I advise my clients to have a revocable trust and a Will so we can ensure that assets get divided as intended and given to the correct beneficiaries.” 

How Often Should a Will Be Updated?

“I always advise my clients to set a date in the calendar for each year. Updating your Will once a year is sufficient, but don’t fall into the trap of skipping a year.” Kristel warns. “Too often, I’ve seen clients put this off until it’s too late, which seldom has a happy ending for anyone involved.”

Now that you know which legal documents to have in place before your loved one passes, you can start the process of enlisting professional help. Having your affairs in order before disaster strikes are one of the best things you can do to spare yourself and your extended family unnecessary stress and heartache. Suppose you want to talk to your senior loved one about getting the necessary legal documents in order before they die. Still, you’re not sure where to start, we recommend reading our article about having difficult conversations with an aging loved one.

Kristel K. Patton is an Attorney and Counsellor at Law at Empowered Legacy Planning. She specializes in estate planning and elder law in Arizona, Arkansas, and Missouri. Get in touch with Kristel and the team here.

*Disclaimer: The information contained in this blog is designed to support, not replace, the relationship that exists between a patient/site visitor and his or her immediate family, physician, or other certified care providers.