Wills, power of attorney and more: What Pennsylvania estate planning lawyers want you to know

From Philly and the Pa. suburbs to South Jersey and Delaware, what would you like WHYY News to cover? Let us know!

Estate planning isn’t just for the rich and wealthy, and it doesn’t usually involve a dramatic reading of someone’s will or sinister plots among competitive heirs like Hollywood would make you believe.

Creating a will, power of attorney and advance health care directives can ensure that your wishes are honored when it comes to financial decisions, distribution of assets, medical treatments and end-of-life interventions.

People may feel more urgency to make these legal documents as they age. More than 3 million people in Pennsylvania are 60 and older, and local estate planning experts say taking these steps sooner rather than later can spare their families from confusing and painful situations down the road.

“It’s really a selfless act,” said Brendan Corbalis, attorney and director of legal services at the Senior Law Center in Pennsylvania. “This is a way to bring some order and clarity to what will be a difficult situation for people that love you very much, and whom you love.”

Advance health care directives and living wills

Advance health care directives in Pennsylvania can involve designating a health care power of attorney and drafting a living will.

A health care power of attorney agent is often a spouse, adult child, relative or friend who can make medical decisions for someone who has become incapacitated, defined by state law as “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”

This designated agent can also help in less severe circumstances and temporarily step in to sign medical documents and fill out insurance paperwork if a loved one isn’t able to, or just doesn’t want to, Corbalis said.

“Maybe you’re trying to recuperate,” he said. “Maybe you’re trying say, ‘I just had a heart attack. I cannot look at 18 pages of insurance. Can somebody do this for me, please?’”

A living will only comes into play when someone is facing an incurable disease or fatal injury and their condition is in end-of-life stages. In a living will, a person can detail what kind of medical interventions they do and do not want at the end of their life.

“Do you want a feeding tube? Do you want CPR? Do you want to be resuscitated? Do you want to be placed on a ventilator? Those are all personal decisions,” said Anna Brickman, supervising attorney at Community Legal Services in Philadelphia. “There’s no right or wrong answer.”

Directives in a living will are only carried out when someone becomes incapacitated. A person who is in end-of-life stages, but still able to communicate with doctors and medical staff, can continue to make decisions in real time.

When they can no longer do so, that’s when their health care power of attorney is responsible for making sure these last wishes are carried out.

Having advance health care directives in place can help families avoid painful situations and fights over what to do, Brickman said.

“There can be really big arguments that just ripple on for a long time, that linger, because somebody made a decision that another family member didn’t agree with, and there wasn’t a document controlling who should make the decision,” she said.

If someone doesn’t make a health care directive, Brickman said, medical and end-of-life decisions often fall to a default hierarchy of people determined by state law. At the top of the list is usually a spouse or partner, but that doesn’t always work for everyone.

“I work with clients all the time who are legally married, but they are separated or estranged from their spouse. Or they adore their spouse, but they think that their spouse might not think clearly in case of an emergency,” she said. “So, it’s really important to be able to name the person you want to name.”

Power of attorney for financial decisions

Another type of power of attorney designates someone to handle financial decisions under certain conditions, and there are two main options: durable and springing.

As its name suggests, a springing power of attorney “springs” into effect only when certain events or circumstances happen, and they’re often temporary.

For example, someone may want a designated loved one to manage their finances and pay their rent and bills while they recover from an injury, illness or procedure, or are traveling out of the country for a prolonged period.

Durable power of attorney is effective immediately and indefinite, but the person who made it can revoke it at any time. This document may be ideal for a couple who shares a lot of financial responsibilities, Corbalis said. It would ensure that one partner can quickly and easily take over mortgage or car payments and address other financial duties if and when the other person becomes incapacitated.

It can also be an option for seniors who may no longer want to deal with the daily minutiae of their financial responsibilities, Brickman said.

“Those are the people who tend to say, ‘I really don’t want to deal with this. I want someone else just paying my bills for me,’” she said.

Last wills and testaments

Wills are crucial whenever someone owns property, savings and other assets, experts say. Brickman recommends them for anyone who owns a home, has children or is facing a serious medical condition, at any age.

A will recognizes someone’s heirs and what they will each inherit from their loved one upon their death.

“And some people put into their will, — they don’t even just put the big-ticket items; they put the items that are really important to them,” she said. “They may have grandma’s dining room table and chairs or a piece of art they really like. It doesn’t have to be monetarily valuable. It just has to be valuable to you.”

Naming someone to inherit a house or property is key, though, Brickman said. It prevents something called tangled titles, which is when it is unclear who is the new owner of a home and multiple family members may have a claim. Disputes can last for years or even generations.

Brickman encourages people to draft wills with guidance from an attorney, as they are best qualified to review state laws and give validity to the document. However, some people can still make handwritten wills of their own, which are recognized in Pennsylvania but not highly recommended.

With those kinds of wills, called holographic wills, Corbalis said it’s still best to have witnesses and even a notary present when they’re made.

People are encouraged to review and update their wills over time, he said, especially when there are changes to their assets, heirs and family relationships.

“You have to make sure that the will is reflective of where you are in your life now, and who your family is and who are your beneficiaries,” Corbalis said.

If and when people make new wills, they must destroy all other previous versions that ever existed, Brickman said, so that there’s no confusion about which version the law should recognize.

“You don’t want to be like Aretha Franklin, finding wills in the couch,” she said, referring to the spiral notebook found in the singer’s home, which a Michigan jury ruled was her valid last will and testament. “It is true that the most recent-in-time will controls, but it’s always a headache if there are multiple wills.”

Legal experts recommend that all estate planning documents be made with attorneys who specialize in this area of law. It does cost money, which can be a barrier, but Brickman said some people can qualify for financial aid and no-cost programs that help people create these documents.

At Community Legal Services, Philadelphians who are homeowners and who have incomes under a certain level may qualify for free estate planning services. Senior Law Center does not offer estate planning services directly, but the organization does partner with private law firms that offer services pro bono at yearly clinics for those who qualify.

“People feel like estate planning  only applies to wealthy people, but nothing could be further from the truth,” Corbalis said.