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Inevitability of Death, Like Taxes,
Requires Legal Affairs in Order

By Benny L. Kass
(c) The Washington Post
Saturday, July 15, 1995; Page E18

There are a number of legal documents that you should prepare while you are capable of doing so. Legal problems with relatives usually occur when people have not made their intentions clear as to how they wish their property and affairs to be handled if they become incapacitated or die.

I cannot offer legal advice in this column. Everyone has different concerns and considerations, but the following will highlight those legal documents that should be executed. These documents are not only needed by people who have retired. Everyone over the age of 21 should anticipate the unforeseen and be prepared -- legally -- to deal with emergency situations. The documents are:

A will. If you die without a will, the probate court in the state or city in which your property is located will have to decide how to dispose of your property. While there are rules dealing with intestacy (where there is no will), it puts a heavy burden on your loved ones, financially and emotionally. You should have a will that highlights, among many other things, who is to be your personal representative, who is to get your real and personal property, how you are to be buried, any charitable gifts and the like.

You also should take into account the possibility that the person to whom you are assigning certain responsibilities -- or giving property -- may die before you or may be incapable of handling those duties. Thus, in every will it is important to select alternative individuals in case the primary person is not able to take the task.

Declaration. This also is referred to as a "living will." If you become incapacitated to the point that you are in a terminal condition (as determined by a doctor), do you want your life to be extended by life-sustaining procedures, or do you want to die naturally?

This is a much-disputed and emotional issue. Many people remain optimistic that even if they have a serious accident, they will recover. Thus, they want their life to be preserved with life-sustaining equipment. Other people recognize that if their condition is terminal, they do not want to be a long-term burden on their family, and want to die as quickly as possible.

Only you can make this decision. If you do not put your wishes in writing in a document known as a declaration, it is likely that your doctor will insist on using life-sustaining equipment. There have been numerous lawsuits brought by families seeking to terminate the life of a relative, but the courts have made it clear that the life will be permitted to expire without life-support systems only if that individual has so stated his or her preference.

Durable power of attorney. If you are incapacitated -- say with Alzheimer's disease -- someone will have to continue to handle your personal and financial affairs. To avoid legal complication and to discourage family disputes over who will handle your affairs, you should appoint one or more individuals -- and an alternative -- to be your attorney in fact. This durable power of attorney allows your designated individual or individuals to act on your behalf and to take care of all of your personal and financial activities as if you were doing it yourself. This is a very important document that everyone should have.

Health care appointment. In addition to the general and durable power of attorney, everyone should appoint someone (with an alternative) who will have full authority to make health care decisions for you, if you are incapable of making decisions on your own. This is similar to the general and durable power of attorney, but relates exclusively to health care matters.

These are but a few of the legal documents required for everyone in today's society. I have not addressed estate planning because it is a totally separate matter that requires individual consultation with your tax and legal advisers.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036.

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