Estate planning, trusts, wills, and living wills are confusing and convoluted. Estate plans cover several of these elements, but trusts can be a different matter. With state and federal laws regarding inheritance and property changing every year and adding to the confusion, an individual or family should not rely on a “do it yourself” approach. What poses a more challenging and problematic situation is if there is a person with physical disabilities or special developmental needs. Because the laws are constantly changing, it is necessary to use the services of an experienced attorney.

When an individual dies without a will, also known as an intestate, the assets are left for the courts to decide the best method of distribution. The probate process is never quick and even the simplest estate can often be reduced to the point that the remaining assets are almost non-existent. Conversely, if the entire estate were left solely to the spouse, the spouse’s taxable estate could very well increase. In the event that the spouse also dies, the children will also have to pay higher taxes. Estate tax exemptions are available, but cannot be taken advantage of without taking the proper steps.

The assignment of a power of attorney is also an important component of estate planning. Not to be confused with a living will, if a person is ill or unable to be present to make decisions about personal assets and finances, a power of attorney authorizes a second party to legally make decisions on their behalf. A living will does not refer to the property of the individual, but to the medical care provided.

In the event that a person becomes extremely ill, incapacitated, or unable to make their own decisions regarding their personal health care, a living will prepared in advance will detail the health care desired or prohibited. An example of this would be prohibiting the use of artificial life support when permanent brain damage has caused the brain to stop performing some activity.

A complete estate plan will include much of the above, but when there is a person with special needs or a physical disability, additional detailed and complex provisions must be arranged. Without additional planning, it is almost certain that the disabled or special needs family member will end up in a state institution receiving only the mediocre care that lack of money can provide. Trusts are not always part of an estate plan, but they are an integral part of ensuring that the person with special needs receives appropriate medical care after the parents are deceased. Without planning the inevitable would simply be criminal for which there is no punishment.