Wills & Trusts

Creative and Effective Estate Planning Solutions

Planning for legal matters that go into effect upon your death can be a scary topic to handle. Don’t do it alone or miss a step that could have your wishes totally disregarded. Estate planning can also be a bit consuming for some people. We acknowledge that there is a lot of paperwork and nuances to follow, but fortunately, as a client of The Anderson Firm, this process will be relatively seamless and informative for you.

Of course, many people might not know the difference between wills, trusts, and powers of attorney. Just ask yourself: do you know the difference between a will and a living will? Don’t feel bad if the answer is no; that’s exactly what we’re here to explain.

Wills

Wills are documents expressing how a person wishes their property to be divided upon his or her death. It also designates the individual (executor) who will be handling the post-mortem distribution process.

The person who creates a will is known as the testator. Under Georgia Law § 53-4-20, testators must be able to sign their own wills. Signatures can range from names, marks, or signs, which will then authenticate the testator’s will.

If a testator is physically unable to sign their will, they may have someone else do it for them; in this case, the substitute signer must have the power of attorney to do so. The signer with power of attorney must sign the will in the testator’s presence and at the testator’s discretion.

In Georgia, the signing of the will must also be “properly witnessed,” meaning two mentally competent people over 14 years of age must sign the will in the presence of the testator. Although Georgia does not require wills to be notarized, doing so may expedite the probate process upon the testator’s death.

One thing to note: holographic wills are not valid in Georgia. These are wills signed by the testator or power of attorney but NOT signed by two witnesses.

Living Wills

Living wills are documents expressing how a dying person wishes to be treated in his or her final days. These documents often address whether or not the person wishes to die naturally and without any medical assistance. People with a terminal disease, who are in a coma, or are in a vegetative state will benefit the most from living wills, as they provide specific instructions on how to handle their physical decline. 

A 1992 amendment to this law made it so that those in a coma, persistent vegetative state, or another physical state that leaves them unable to communicate can add instructions specifically denoting the withdrawal or withholding of medical treatment for these individuals.

Georgia law defines a “terminal condition” as an incurable disease caused by death, illness, or injury; additionally, the person’s death must be inevitable due to this condition. In order to legally establish your terminal condition, two physicians — one of whom must be your attending physician — must personally examine the individual and certify in writing that their condition is not expected to improve and that the person will die as a result.

Comas, on the other hand, are defined as a state of deep, indefinite unconsciousness from which the individual is not expected to emerge. Like terminal conditions, two physicians (including your attending one) must certify this condition in writing and affirm that the individual is not reasonably expected to awake.

Persistent vegetative states denote a state in which an individual’s bodily functions still work but their mind does not. Another term for this is “brain dead.” If doctors have reason to believe you’ll never recover from this state, a living will may express your wishes regarding your medical care.

Like standard wills, living wills must be signed in the presence of two witnesses. If you wish to execute a living will while you’re a patient in a hospital, an additional person will need to sign it. However, this third signer must be the chief of hospital staff or a staff physician who is not administering care to you. If you wish to execute a living will while you’re residing in a nursing home, this third witness must be either the medical director of the nursing home or a staff physician not administering care to you.

Power of Attorney (POA)

If you lack the mental faculties to make your own healthcare decisions, you can sign a legal document handing over these rights to someone you trust. In the legal world, this is known as power of attorney (POA). The “principal,” or the person signing over their rights, grants this POA to the “agent,” or the mentally competent person who will make health-related decisions on the principal’s behalf.

In Georgia, there are three types of POAs:

  • Durable POA — This is a POA that goes into effect immediately, irrespective of the principal’s current mental condition, and continues after the principal becomes incapacitated.
  • Springing POA — This POA only goes into effect once the principal becomes incapacitated.
  • Healthcare POA — Like a springing POA, a healthcare POA lets the agent make healthcare decisions on the principal’s behalf once they are no longer able to communicate their desires.

Georgia law states that a person unable to make decisions regarding their business or property affairs is incapacitated if they suffer from “impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance” (which is determined by a physician). Or, they must be missing, incarcerated, detained, or currently outside of the United States with no way of returning (which is determined by a judge, attorney, or other designated government official).

In order for a POA to be valid in Georgia, it must be signed by the principal or another person at the discretion and in the presence of the principal. It must also be signed by at least one witness and subsequently notarized. Keep in mind that the witness cannot act as the notary. Finally, the principal, anyone signing on behalf of the principal, witness(es), and a notary must all be present at the signing.

Healthcare Directives

Think of healthcare directives as a combination between a living will and a healthcare power of attorney. Within these healthcare directives, you’ll establish five things: the healthcare agent, your treatment preferences, guardianship, effectiveness, and signatures.

Your healthcare agent is essentially the POA who will make medical decisions on your behalf once you become legally incapacitated. You can make decisions regarding how your body is handled after death, too, including instructions for handling organ donations, body donations, autopsies, and final resting wishes.

Your treatment preferences outline the medical treatment you wish to receive in the event of a terminal condition that leaves you in an indefinite unconscious state. This will only go into effect if you lose all ability to communicate your desires regarding your medical treatment preferences.

Guardianship denotes the individual who will care for you if you end up needing a guardian, while effectiveness and signatures refer to the signatures needed to validate this healthcare directive. You’ll need the principal’s signature and the signatures of the two witnesses, neither of whom can be members of your family.

A principal must be in possession of his or her mental faculties in order to validate a healthcare directive. It cannot be executed if you are already incapacitated or otherwise unable to express your wishes surrounding your medical condition and treatments. What’s more, healthcare directives only address healthcare decisions and not financial decisions.

Trusts

Like wills, trusts help you protect your estate and provide for your loved ones after your death. Unlike wills, trusts allow your probate assets to avoid a long process in probate court. Trusts can also help you avoid certain estate taxes, prevent future disputes between beneficiaries, reduce court fees and other legal expenses, and prevent your more financially irresponsible family members from wasting their inheritances.

While there are many types of trusts, they all have several common components. All trusts include a grantor, or the person creating the trust; the trustee, or the person or business holding the trust; and the beneficiaries, or the people who will benefit from the parameters outlined in the trust.

The trust instructs the trustee on how to manage the trust’s assets upon the grantor’s death, meaning the trustee won’t have to divide the grantor’s property or assets through probate court. Any property or assets not funded in the trust will have to go through probate.

Do-it-yourself estate planning might be less expensive in the interim, but the price of not having your goals and objectives carried out after your death is incalculable. Our firm would be honored to sit down with you and figure out a way to craft an estate plan that works for you and your loved ones.