As individuals near the age of retirement, it is important for them to think about consulting with an attorney about putting together an estate plan.  Estate planning is the process of examining the assets owned by an individual or a married couple and creating a strategy for dividing such assets upon one or both of their deaths, while minimizing tax consequences.  While traditional estate planning contemplates the aftermath of an individual’s passing, a thorough estate plan should prepare for situations that may arise during an individual’s life which require legal foresight.

What are some of the things I need to consider when developing a comprehensive estate plan?
A qualified attorney can assist individuals in creating a comprehensive estate plan by examining:

• Will creation
• Advance directives
• Powers of attorney
• Guardianships
• Conservatorships
• Trust Establishment
• Private Fiduciary Services
• Cremation Law
• Benefit Planning
• Probate Issues

What is a last will and testament?
 A last will and testament, or a will, is the most basic estate planning device.  It allows individuals to designate the allocation of their property upon their death.  While it is almost always a good idea to consult with a qualified attorney before executing a will, Arizona law recognizes wills which are personally created and executed.  Generally speaking, Arizona law allows any competent adult who is of sound mind to make a will.  A sample of a will is available in the Arizona Code at A.R.S. §14-2504.   

What is an advance directive?
Advance directives are legal planning tools which provide direction to medical personnel before the actual need arises.  A living will, for instance is an advance directive which outlines an individual’s medical wishes for the end of his or her life.  While living wills are generally used as a way of telling doctors and loved ones that life-sustaining treatment is not desired, they can be used to express a preference for such treatment as well.  The Arizona Attorney General’s office provides a framework to follow when creating a living will.

A pre-hospital medical care directive, commonly referred to as a DNR, is another advance directive which authorizes individuals to prevent resuscitation if they stop breathing or if their heart stops beating.  To have validity, a DNR must be printed on an orange background and include the wording mandated by A.R.S. §36-3251.

What is a power of attorney?
Powers of attorney are legal documents which permit individuals to grant agents the authority to make legally binding decisions on their behalf.  Arizona law recognizes three different powers of attorney:  Financial POA, Healthcare POA and Mental Health POA.  Each of these powers of attorney grant their own set of powers and each must meet strict statutory requirements to be valid.  For a comprehensive look at these powers of attorney, as well as sample powers of attorney, visit http://www.arizonaseniorlaw.com/, and click on the “Resources” tab.   

What is a guardianship?
The need for a guardian arises when healthcare and mental healthcare powers of attorney are not in place.  In other words, if an individual becomes incapable of making important medical decisions personally, and is without these important powers of attorney, the court can appoint a guardian to help in the decision-making process.  A guardian is responsible for the individual’s care, comfort and maintenance.  Generally speaking, a guardian does not oversee financial matters, but mainly handles medical decisions and living arrangements.

When an individual loses capacity to make or communicate responsible personal decisions, the need to have a guardian appointed may arise.  In determining whether to seek an appointment, family and friends should evaluate the answers to the following questions:

• Does my loved one have difficulty doing familiar tasks?
• Can my loved one communicate coherently?
• Does my loved one know what medications he/she is taking, and is my loved one taking medications appropriately?
• Does my loved one have extreme mood swings for no apparent reason?
• Does my loved one become easily agitated, aggressive, or combative?
• Does my loved one often lose things or put things in inappropriate places?
• Does my loved one often forget where he or she is?
• Can my loved one keep safe in stressful or emergency situations such as fire, power outage or crossing a busy street?

What is a conservatorship?
The need for a conservatorship arises when a financial power of attorney is not in place.  So if an individual loses capacity to make financial decisions personally, and a power of attorney is not in place, the court can appoint a conservator to make such decisions.  The court may grant the conservator broad powers to manage all of the individual’s assets, or narrower powers as dictated by the circumstances.  In either instance, the court supervises the conservatorship. 

In determining whether to seek an appointment of a conservator, family and friends should ask:

• Can my loved one handle everyday financial issues such as counting change, writing checks or balancing a checkbook?
• Could my loved one be easily persuaded by others, including family members and friends, to give away money or property?
• Does my loved one know what and where his or her assets are?

What is a trust?
A trust is a legally enforceable document which provides detailed instructions on how trust assets are to be managed.  Trusts generally provide instruction on such things as:

• How trust assets are to be invested or spent
• What debts are to be repaid from trust funds
• Designation of a trustee
• The powers and responsibilities granted to the trustee
• Who is to receive the trust assets when the trust ends

Trusts come in a wide variety, ranging in effect and purpose.  Depending upon the particular estate planning needs, individuals can create trust terms which take immediate effect, or spring into effect upon death.  Trusts can be complicated and can significantly affect an individual’s financial situation.  As such, individuals should always consult with a qualified attorney before establishing a trust.

What is a private fiduciary?
A fiduciary is an individual who accepts responsibility for managing the needs of another person, solely for the other person’s benefit.  Because the fiduciary makes major life decisions on the person’s behalf, it is critical that there is a relationship of trust.  A fiduciary can be appointed by the court to act as a conservator or guardian; or by agreement to act as trustee or agent under a power of attorney. 

What do I need to know about cremation law if I intend to be cremated?
Disputes are surprisingly common when the time comes to cremate an individual who has verbally expressed his or her wishes to be cremated.  These disputes are so common in fact that the Arizona legislature passed A.R.S. §32-1365.01 to provide guidance in such matters.  It used to be that if a mortuary cremated an individual against the wishes of a loved one, the mortuary was left open to potential legal action for causing emotional distress.  This of course caused mortuaries to sometimes be hesitant when it came to cremation.  Now, if an individual wishes to be cremated, he or she can remove any uncertainty from the situation by simply executing a cremation certificate, which expresses a wish to be cremated.  By filling out such a certificate, individuals can be certain that their final wishes are respected.