• Kevin Shoeberg

Newlywed I Do's

I am frequently asked whether newlyweds need a Will, Power of Attorney or Health Care Declaration. My answer is that everyone needs to make plans and in most cases, they need to designate the appropriate person to help them carry out their wishes. A Will is necessary to distribute assets including real estate in the event of a death when the assets exceed the sum of $75,000. A Will is especially important if either of the spouses have children from a 1st marriage or relationship or sometimes if both have children from previous marriages or relationships. If a person dies without a Will, state statutes determine who will receive the property of the estate. In addition, newlyweds may have assets which will be transferred outside of the estate by beneficiary designation. It will be important to review all assets and determine if the beneficiary designation is correct, now that the party is married.

A Power of Attorney is important because the “principal,” individual who grants the Power of Attorney, has his/her own financial identity. Unless the other spouse or someone is designated as the Attorney in Fact, it may difficult to pay bills and access money without going to court to formally be appointed the principal’s conservator. A Power of Attorney will allow the new spouse to access financial accounts and essentially make any financial decision the principal could make. The Attorney in Fact cannot make decisions regarding the principal’s medical care unless the principal has also executed a health care declaration or sometimes referred to as a living will.

A Health Care Declaration allows the principal to provide instructions to medical personnel and the principal’s proxy on what types of medical care they want and do not want. The principal can name a Proxy, a person who will make decisions for the principal, in the event they are unable to communicate. This could be a temporary situation such as a coma from an accident to something more long term when perhaps the principal is no longer competent to make decisions for themselves. Newlyweds should utilize a Health Care Declaration, so that their wishes are carried out in the event they have a medical situation which requires decision making by someone. This is important especially if the principal has grown children or parents, who may not see situations the same as the new spouse. The Health Care Declaration provides clarity on who is authorized to assist the principal regarding making health care decisions. If no Health Care Declaration is signed and parties are not in agreement, a legal proceeding can be commenced to appoint a Guardian of the principal. This process consumes time and financial resources.

Furthermore, if any litigation to appoint a conservator or guardianship is commenced, the principal’s designations in these documents will usually be given weight by the court. Without these documents in place, clarity is lacking and a person’s wishes regarding their financial and medical treatment may not be carried out. There are many different issues which may arise and this article is not intended as legal advice. Specific information and the formation of an attorney/client relationship, by signing a retainer agreement and paying the fees are necessary before I could provide legal advice. If you have questions, please give our office a call so we can discuss your specific needs.

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