Choosing Your Representatives

in a Last Will, Power of Attorney, and Health Care Directive

Why You Should Choose Personal Representatives

One of the most important aspects of estate planning is choosing who will represent you after you die or if you become incapacitated. Your representative will essentially speak for you when you are no longer able to do so for yourself. Therefore, you should think seriously about who would be able to shoulder that responsibility and manage your affairs successfully.

Executors in a Last Will and Testament

A Last Will and Testament is a legal document that you use to divide your assets after you die. It covers the financial aspects of your affairs, such as assets, debts, and who you would like to name as your beneficiaries.
When creating your Last Will and Testament, you will need to choose a minimum of one executor. Your executor is the individual who will distribute your assets, close your accounts, file your taxes, and wrap up your financial affairs after you have passed away.
Aside from handling the monetary aspects of your estate, they will also need to be able to handle sensitive family matters while your family is in the midst of grieving. Your executor will have to communicate with loved ones and navigate personal issues when it comes to your assets.
You may choose to have more than one executor if you happen to know two people with different skillsets who will be able to work well together. In the case of more than one executor, your representatives are called co-executors.
If you do not create a Last Will and Testament, the court will appoint an estate representative upon your death.

Attorneys-in-Fact/Agents in a Power of Attorney

A Power of Attorney is a legal document that you use to name a representative in the event that you become incapacitated. It allows the representative to make financial, business, real estate, and other decisions on your behalf while you are unable to do so.
Your representative in a Power of Attorney is referred to as your ’attorney-in-fact’ or ’agent’. When creating your document, you will need to list at least one attorney-in-fact, but you may choose to have more. You can also designate separate agents to act for you in different aspects of your financial life.
For example, you may choose one person to execute your real estate affairs, and another to make business decisions on your behalf.

Personal Representatives in a Living Will, Health Care Directive, or Medical Power of Attorney

A Medical Power of Attorney is a document that you use to name a representative to make health care decisions on your behalf should you become unable to do so.
It defines your preferences in terms of life prolonging procedures such as life support, artificially administered sustenance, and palliative care if you are diagnosed with a terminal illness, fall into a permanent coma, or enter into a persistent vegetative state.
A Living Will (also known as a Health Care Directive) is a document that allows you to specify your preferences for medical treatment. As opposed to naming a representative, it outlines your wishes for when you are no longer able to choose or consent to certain treatments.
You may choose to use either one, or you can use both. For example, you may appoint a representative in a Medical Power of Attorney to make certain decisions, and a Living Will to limit what they can make decisions for.
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Legal Requirements of Personal Representatives

When choosing representatives for any of your estate plans, you need to be sure that they are legally able to represent you.
Anyone who represents you must:
  • be of the age of majority.
  • not be a felon.
  • be of sound mind.
  • depending on your local laws, live in the same region as you.
  • be willing to act as your representative.

Common Skills of Personal Representatives

While your personal representative does not have to be a professional, you should choose someone who can handle the responsibility of allocating your assets, making difficult decisions, and managing your affairs.
Successful personal representatives often:
  • are comfortable with accounting, or have a financial background.
  • have experience with estate law or have been a personal representative before.
  • have experience with filing paperwork.
  • are comfortable in executing your wishes and handling sensitive decisions in your stead.
  • are detail-oriented, organized, responsible, and reliable.
Choosing someone who is mature, trustworthy, and competent will benefit everyone involved in your estate plans. By selecting someone who is up to the task, you can save them, and your family members a lot of unnecessary stress and conflict. The more prepared your representative is to manage your affairs, the more straightforward the process will be after you have passed away.
It’s also a benefit to choose someone who lives close, as they will be able to manage your affairs and distribute your assets more easily than someone who is attempting to do so from another state or country.

Your Responsibilities to Your Personal Representatives

It is essential that you ensure that your representative is willing and able to perform the necessary tasks as they have the right to decline the responsibility after you either die or become incapacitated. Both your personal representative and your alternate, if you designate one, should be asked to accept the position once they understand what it will entail.
You should also talk to your family about who your personal representative is, and why you chose them. Your family should not be kept in the dark about who will be making decisions on your behalf. In sensitive matters such as estate planning, transparency helps to limit potential problems.
Avoid choosing a business partner or even a beneficiary to represent you if possible. Choosing a third party who won’t benefit from your estate plans can help to ensure that they have your best interests, and those of your beneficiaries, on the top of their priority list.

Remember to:

  • Be organized.
  • Communicate clearly.
  • Be honest.
  • Keep your representatives informed.
  • Be understanding.

Professional Personal Representatives

If you are having trouble choosing a personal representative for your estate plans, you can enlist a professional personal representative. This could include:
  • A trust company
  • A bank or law firm
  • An attorney
  • An accountant or financial advisor
You do have to compensate professional representatives, but their experience in estate administration can be extremely useful and can be the best option if you either have no one to name as a personal representative, or your estate plans are complicated and would be better executed by someone with professional experience.
Alternatively, your chosen executor may hire a professional to take on some or all of the responsibilities for you if they don’t have the time or skills to complete their tasks.

After You Select a Personal Representative

After you have selected a personal representative, and they have accepted the position, be sure to keep them up-to-date on any changes you make to your estate plans.
Provide copies of your estate documents to your representative(s) and let them know where any other important documents are located. Also, give them the contact information for your beneficiaries, lawyer, and any other relevant parties.
By having a stable relationship and communicating clearly with your personal representative, you can help them to understand your wishes and to feel confident acting in your place.
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