Wills and Powers of Attorney
Giving your loved ones peace of mind during stressful times
Wills And Powers Of Attorney In Hilton Head Island, South Carolina
Durable Power of Attorney
The second basic estate planning document, the Durable Power of Attorney allows for a large array of authority to act on behalf of another person. The Principal (person granting the authority) give powers to their Agent (person acting on behalf of the principal). The powers can be very wide and include transferring property or real estate, purchasing property, buying or selling stocks or other financial instruments, entering into agreements, continuing or ending businesses, opening or closing bank accounts, accessing safety deposit boxes, entering into or continuing litigation, claiming on insurance policies, dealing with taxes, conducting family affairs, and much more. ​
In general, the Agent can act on behalf of the Principal on just about any matter that the Principal needs or wants. This is a very effective tool to have in the estate planning toolbox. If the Principal is out of town, unavailable, or worse, if something were to happen to them where they cannot manage their own affairs, the Durable Power of Attorney is very handy. Without a Durable Power of Attorney, anyone needing to act on behalf of the Principal will need to go through a court action to be named as guardians, potentially taking months of time and costing thousands of dollars.
The authority granted in the Durable Power of Attorney can be immediately given, or can be made to only arise when the Principal is incapacitated, added a layer of security if the Principal is unsure about giving so much power to another person. The Agent can be personally liable if they abuse their authority. The power granted by the Durable Power of Attorney is only valid while the Principal is alive and once deceased, the Personal Representative named in the Will has seniority.
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Health Care Power of Attorney
Similar to the Durable Power of Attorney, the Health Care Power of Attorney grants authority to another person to make decisions for the Principal in healthcare matters, if the Principal cannot make decisions for themselves. This is very important as otherwise attending physicians may have the authority to make decisions on your behalf, and they may be obligated to provide treatment that you may not have chosen for yourself.
An Agent with Health Care Power of Attorney will have the legal authority to make decisions on your behalf. When you give them that authority, you can choose whether the Agent has full decision-making power, or you give them the authority to enforce your wishes. For example, you can elect whether or not you want to be given tube feeding and have your life prolonged, or whether you want to be given maximum treatment for as long as possible regardless of the cost.
If granted discretionary authority, your Agent will be given instruction to consider your personal beliefs, the costs and benefits to treatment, and your relief from suffering. You should choose an Agent who knows you and your beliefs, and you should have a conversation with them when granting the Power of Attorney so they know your wishes.
Wills and Last Testament
The foundational document, a Will, also known as a Will and Last Testament, is essentially the instruction manual for the Probate Court as to how to distribute property at death. If there are minor children of the descendent, the Will can name the who the testator wishes to act as guardians - although the South Carolina Family Court has jurisdiction and final say regarding the welfare of children. A Will can provide for ownership of land, houses, cars, cash, and any and all other property the testator owns at death.
What is a will?
A Will can name the person who acts on the testator's behalf in Probate Court (the Personal Representative or Executor). A Will can provide specific gifts (known as bequests) to children, family, other persons, or charities. Or a Will can give certain things to some, and then all the remaining unnamed assets to others. A Will can 'disinherit' a child or family member due. A Will can provide that should a person entitled to receive under the Will be sufferings from addiction or other issues, that the Personal Representative have discretion in their gifts.
A Will can create a 'testamentary trust' which can manage property for many years beyond the death of the testator. A Will can grant ownership of real property for only a period of time (term of years, or life estate) and then allow for that ownership to revert to another. Wills can protect themselves and cause someone who tries to contest the Will to be 'cut' from receiving anything.
As the foundational document of the estate plan, Wills are vitally important and no person's wealth is too small to not need a will. The ability to determine the ownership of one's property is an exercise in the rights of personal property and our liberties. Even for someone with little property, drafting a simple Will is very easy and there are many websites which offer free templates.