Ouverson, Guest & Carter, PA has been helping families manage the legal burden of estate planning matters for years. We represent and guide our clients with creating trusts, delegating powers of attorney, composing living wills, settling probate matters, and managing estate administration.
Estate planning is something that everyone needs to consider – regardless of net worth, marital status, or familial makeup. Estate planning is part of the process of creating a plan through the use of trusts, wills, and other legal documents that can provide both peace of mind and protection for yourself, your loved ones, and your assets in the event of your disability, incapacity, or death. It is is an essential and rewarding process for individuals and families to engage in. Without the utilization of properly planning one’s estate – the South Carolina Intestacy Laws will determine how your assets will be distributed upon your death regardless of your hopes and expectations for those who are most important to you.
Durable Power Of Attorney
A power of attorney is a written legal document in which a person is appointed to act on the behalf of another to perform certain acts, functions, and decisions involving either property, business, legal matters, financial affairs, or healthcare needs. It may be written to cover general needs or may be limited to covering certain events or circumstances.
Typically, a general power of attorney provides comprehensive details and gives your chosen contact all of the rights and power similar to your own. The individual that you choose to act on your behalf is called an attorney-in-fact. Your general power of attorney gives your attorney-in-fact the power to sign documents for you while you are still living. They may also conduct certain financial transactions acting in your best interests, but will not be able to access any assets held in a trust. A general power of attorney is used when you are not incapacitated, but in need of some help. Upon becoming incapacitated, or deceased, then the general power of attorney becomes null.
A durable power of attorney can remain in effect after you become disabled or incapacitated, allowing the person you have chosen to represent you in matters. If you do not have a durable power of attorney and you become incapacitated, no one would be able to represent you unless a conservator or guardian is appointed by the court.
A springing power of attorney is similar to a durable power of attorney in that it can authorize your attorney-in-fact to act for you if you would become incapacitated – but it only becomes active or effective once you are incapacitated. It is important that your standard for determining your level of incapacity, and when to enact the power of attorney, is concisely stated in the document.
Health Care Power Of Attorney
A Health Care Power of Attorney is a legal document that is also often referred to as a Health Care Proxy, Medical Power of Attorney, or Durable Power of Attorney for Health Care. It allows you to designate another person to make medical treatment decisions for you if you are unable to communicate your wishes to your doctors. Health care decisions include the power to consent, refuse consent, or withdraw consent to any type of medical care, treatment, service, or procedure. You do not need to be terminally ill, elderly, or facing a high risk activity to execute a Health Care Power of Attorney.
Attorney Dundee Carter at Ouverson, Guest & Carter, PA, is experienced in assessing the complicated legal needs that may accompany aging and disability such as: asset preservation, advance medical directives, conservatorships, powers of attorney, guardianships, and long term care planning.
The practice area of elder law addresses the legal needs and complicated issues that often accompany aging and disability. If an individual fails to properly plan for incapacity, a Guardian may need to be appointed by the Probate Court to manage the person’s personal and custodial decisions – including living arrangements, medical and health care decisions, and activities of daily living. Conservators are appointed by the Probate Court to manage the financial assets and resources of an incapacitated person.
One of the most effective and helpful legal documents that one can draft is a living will. Living wills help individuals avoid the possibility that family disagreements may delay the administration of certain medical procedures during the end stage of a person’s life.
The South Carolina Death with Dignity Act allows South Carolinians to sign a type of living will referred to as a “Declaration of a Desire for a Natural Death”, which directs one’s medical providers to withhold life-sustaining treatment under certain circumstances. It is a written statutory form that allows an individual to give directions to his or her physician and family about what should happen near the end of life with respect to the withholding of, or providing of, medical treatment.
A living will takes effect while one is still living and a will does not hold any legal impact until after one is deceased, and at that time, the will needs be filed with a probate court.
A trust is a complex legal document that is used in estate planning and it is established to hold assets for children, special needs individuals, or pets. Upon the time that any assets are placed within a trust, a third party called a trustee, can maintain and manage it. The trustee determines how assets are invested, to whom they are distributed to, and in the event that the originator or owner of the trust dies – a trustee must manage the trust in accordance with the guidelines that were documented at the time that the trust was formed.
Trusts may be either revocable or irrevocable. A revocable living trust or an irrevocable living trust can contain your instructions for managing your assets and care during your lifetime in the event that you become mentally incapacitated, and also can contain instructions for distributing your assets after you pass away. A properly prepared and funded living trust may help to avoid costly court proceedings in the unfortunate situation of incapacity or death.
Revocable living trusts become irrevocable if the grantor (originator) dies and is not available any longer to make any changes to it. They may be designed to break into separate irrevocable trusts at the time of the grantor’s death, for the benefit of children or other beneficiaries. Revocable trusts may be modified but irrevocable trusts cannot be changed after they are created, but they do offer some tax-shelter benefits that revocable trusts do not (as a way to reduce tax burdens and avoid one’s assets going into probate).
Special Needs Trusts
Special needs trusts are trusts that can supplement the needs of a disabled or special needs beneficiary while allowing the beneficiary to maintain his or her governmental benefits.
When a special needs trust is established by someone other than the disabled person – and the disabled person does not have the legal right to demand the trust assets – the trust is not considered a “countable resource” for purposes of government benefits. A special needs trust gives the Trustee the discretion to make distributions to the beneficiary to the fullest extent possible without reducing their current benefits.
Pet Care Trusts
Pet care trusts are legally enforceable plans to provide protection for one’s beloved pet, not only upon the death of the owner, but also during periods of incapacity when one is no longer able to properly provide for the care of the pet.
A pet care trust allows an individual or family members to make vital decisions regarding the long term care of one or more pets, and ensures that funds are available with a system in place for ongoing care. Pets are highly regarded members of any family, and advance planning for them can provide peace of mind and reduce the stress and anxiety that many pet owners experience when they envision their pet living on without them.