Frequently Asked Questions about
Estate Planning, Wills, Trusts, and Probate

• What if I become disabled and unable to manage my own affairs?

  Who should make decisions about your medical treatment?

  Who may visit you in the hospital?

  Who will manage your finances?

  Who will care for your children?

  Will there be enough money if you are disabled?

If you are incapacitated, someone else must make health care decisions for you. Virginia law sets out a default list of people who can make such decisions for you if you fail to provide instructions. But in reality, only you know who would be best to make decisions for you, and your preferences about medical treatment and life-sustaining measures are important.

We urge all our clients to execute an Advance Medical Directive, naming an agent of their choosing to make health care decisions and providing some guidance and limits for the agent.

When drafting a medical directive, you provide information and guidelines about your specific desires regarding treatment. Some people anticipate circumstances in which they might want life-sustaining treatment, emergency resuscitation, or even food and water withheld. Others prefer to keep on fighting, right up to (and perhaps beyond) the frontiers of current medical knowledge. In addition to setting forth your desires regarding treatment, and naming health care agents, you may want to specify who may (or may not) visit you in the hospital, and who will be responsible for funeral or burial arrangements.

You also should consider executing a general or limited durable power of attorney for financial matters, so that someone can manage your property if you are incapacitated. Many people, especially married couples, prefer giving a spouse or other trusted person a straightforward power of attorney that is immediately effective. Unmarried persons sometimes prefer “springing” or escrow arrangements, which become effective only after you are incapacitated.

In addition to the powers normally specified in a durable power of attorney, you might consider granting authority for your agent to make small gifts (up to $12,000 per recipient per year) on your behalf to your relatives or other specified recipients.

If you choose a revocable living trust rather than a will as your primary estate-planning document, your co-trustee or successor trustee will usually be granted the power to manage trust assets in the event of your disability. In that situation, a durable power of attorney serves as an adjunct to the trust document to cover property not owned by the trust, to permit the transfer of additional property into the trust, and to increase the flexibility of your estate plan to meet unanticipated needs that might arise after you become disabled. Furthermore, the use of a revocable trust can avoid consequences such as having a guardian not of your choosing petition a court to withdraw or limit a durable power of attorney. Persons over 65, and younger persons who anticipate disability in the future, should consider forming a revocable living trust for property management purposes.

In addition to having the documents described above, you should carefully review your financial situation and consider purchasing insurance to protect your family in the event that you are disabled. For example, you should consider purchasing long-term care insurance, to cover the expenses of nursing-home coverage, while you are still at an age where premiums are relatively low. You may also wish to consider purchasing such insurance for your parents if they are not inclined to do so themselves.

“As long as men are liable to die and are desirous to live, a physician will be made fun of, but he will be well paid.” –Jean de la Bruyère