Living Wills and Advance Medical Directives

Your properly executed Advance Medical Directive is the foundation for health care and health care decision management in the event of your incapacity during your lifetime, and one of the major components of a complete estate plan, whether that plan be Will-based or Revocable Trust-based. Part of what we refer to as “ancillary documents”, or documents that are implemented in concert with a Will or Revocable Trust, the Advance Medical Directive is the key to lifetime management of your person. Further, your Advance Medical Directive goes a long way towards the avoidance of guardianship of your person, a proceeding that is many times unnecessary, costly, cumbersome, and through which you can lose your right to self-determination.

In an Advance Medical Directive, your agent’s authority can be effective immediately (general and durable) or springing (effective only upon proof of your incapacity). Maryland’s Advance Directive can be personalized and customized to your wishes and needs. Furthermore, you can provide as much or as little personal instruction as you desire concerning your care and preferences during an incapacity, who your agent should consult with (if anyone), what your values and goals are, whether or not your agents have flexibility in their decision making, limitations on your agent’s power (if any), organ donation preferences, your wishes and preferences for your final arrangements, and more. Many of our clients have expressed that their Advance Medical Directive is their most valuable planning document. While this may or may not be true for you, at Elville & Associates, we understand the importance of an Advance Medical Directive customized to your needs and the momentous nature and serious import of the document. Our attorneys will ensure that your choices and preferences for your Advance Medical Directive are given all of the care and respect that they deserve. As with the power of attorney document(s), the Advance Medical Directive is a must for everyone. Elville & Associates collaborates with Docubank, Inc., a firm that specializes in the on-line storage of Advance Medical Directives and other important documents, to make the Docubank service available to our clients.

To dissolve the mystery surrounding the word “Trust”, the following definition will be helpful – Trusts are in essence private contracts that are developed by an individual or couple for some specific purpose, usually for probate avoidance, estate tax planning and reduction, asset protection, gifting, special needs planning, behavior modification, control, and other purposes. Trusts are either revocable (the Trust can be revoked or terminated, or amended or restated) or irrevocable (the Trust cannot be revoked or terminated or amended or restated, unless modern techniques such as the use of Trust Protectors or decanting powers are used.

The most common and well-known of all Trusts, the Revocable Living Trust, is a probate avoidance device that allows clients to choose the private administration of their estate instead of the Will-based plan that is subject to the probate process. Revocable Living Trusts avoid probate only if the Trust is properly funded after execution. Since the funding process is of paramount importance, Elville & Associates has a Funding Coordinator, Mary Guay Kramer, who is assigned the task of ensuring that all estate plans are properly funded. A complete Revocable Living Trust-based plan will consist of the following documents: (1) Revocable Living Trust, (2) Pour-over Will, (3) Assignments of Tangible and Intangible Property, (4) Power(s) of Attorney, and (5) Advanced Medical Directive. Revocable Living Trusts, by their very nature, are of limited use and benefit if not properly funded, so a thorough understanding of the trust funding process and asset titling is essential to an understanding of the role the Revocable Trust plays in the estate planning process.