Start the new year by getting important legal documents in order

It’s that time of year when many of us make resolutions to accomplish certain tasks in the new year. One big one you may want to consider adding to your list is getting some important documents in order in case something happens to you or a loved one. Here is a list of some legal documents to think about adding to your files:

—Health Care Power of Attorney: Every person over the age of 18 should have a Health Care Power of Attorney. It is different from a living will. It lets someone you nominate have access to your health care information and allows them to make decisions for you if you are unable to do so. If you don’t have one and are unconscious or unable to make a decision for yourself, a loved one would need to obtain guardianship of you to have access to and gain decision-making authority about your health care needs. Obtaining guardianship is a long and drawn-out process and also strips you of much of your decision-making ability. A Health Care Power of Attorney does not do that. You retain control of decision-making as long as you can do so.

Further, if you have a Health Care Power of Attorney that allows someone to make end-of-life decisions for you, you don’t necessarily need a living will, provided you trust the decision-maker to carry out your wishes. If you have a child who is over the age of 18, they too need a Health Care Power of Attorney, as once your child reaches adulthood, you are no longer allowed to have access to their medical information or make decisions for them, even if they are still in school. One of the presents I gave my children upon turning 18 was drafting all the documents for them I am discussing in this article.

—Last Will and Testament: Every person over the age of 18 needs a will. A will allows you to dispose of any property you may own at your death in the manner you so choose. It also allows you to nominate an executor to handle your estate and dispense with a bond for that person, saving your estate and your chosen executor expense and hassle in administering your estate. It can mean a messy and time-consuming process for your loved ones if you do not execute a will specifying the disposition of your property, as there is then a complicated intestacy (meaning without a will) process that state law outlines.

Further, there is a format and process to the drafting of a will and how it is signed and witnessed that you must follow for a will to be valid. In Ohio you cannot simply write out how you want your property disposed of and sign it. It is vital you consult an attorney on this process so your wishes can be carried out with the drafting of a valid will.

—Durable Power of Attorney: A Durable Power of Attorney is different from a Health Care Power of Attorney in that the former document deals with financial and other administrative affairs you may need someone to assist you with. The document allows the person you nominate to handle and sign tax returns, execute legal documents, and handle other matters such as renewing vehicle registrations and assisting with banking matters. The person serving as your power of attorney must always act in your best interest, and the law does not allow them to deal in a self-serving manner. The document is valid once you sign it, and it does not require you to be determined incompetent for it to be effective.

Finally, you should keep all these documents in a safe place, but not a safe deposit box, as it is challenging to get access to a safe deposit box once someone passes away. You also should review insurance policies for beneficiary information and how your vehicles and your house are titled to make sure these documents do what you think they do when you die. For example, an asset like a car or a mobile home, if not titled as “transfer on death” to a loved one, becomes part of your probate estate, and again, if you don’t have a will, the asset may not end up going to the person you would want it to go to.

This list is intended as a brief outline of documents you need and is not intended as a substitute for legal advice. The purpose of this column is to prompt you to take action, call an attorney and act upon that resolution to get your affairs in order to make things as easy and stress-free for your loved ones as possible.

Monica L. Miyashita is an attorney-at-law and can be emailed at kensingtonlawyer@gmail.com. Be advised the information contained herein is not a substitute for individual legal advice.