by Jonathan A. Nelson
Estate plan documents can have a number of different specific names, often driven by the laws of the state where the documents were created and sometimes just the preferences of the person drafting the documents.
A Will is usually called a Will (except when it is a Codicil amending a Will) so there is no doubt about the intent of the document, but there is a long history of cases where the courts have wrestled with whether other documents are enough like a Will to qualify as a Will.
A Trust does not have to be called a Trust, and can sometimes be created without any documents at all when assets are conveyed with a clear intent that they are for the benefit of another.
Some of the greatest differences come up with documents granting an agent financial and medical decision-making. A financial agent will usually act under a document titled Power of Attorney because that term has a long history, but there are a large number of modifiers that may be included in the title. Words like “Durable” and “Springing” describe conditions for the document’s use, while words like “Limited,” “General,” “Financial,” or “Real Estate” describe the types of transactions the document can be used for.
For medical decision-making, there can be even more variety. I have seen the grant of authority itself called a medical power of attorney, health care proxy, or health care surrogate. A HIPAA waiver may be embedded in the document or put in its own document. Virginia’s statutes favor calling this decision-making authorization an Advance Medical Directive, even if there are no particular directions given in the document regarding future medical care, as the title might imply. Those advance directions can also be called a Living Will if that is all that is in the document.
When dealing with financial and medical institutions, especially out of state, there can be a bit of back and forth required to get the underlying powers to fit with what the person receiving the document needs or is expecting to see. The process is even more involved if the document is being used outside the United States.
It can be very helpful to work with an estate planning attorney who not only drafts the documents, but is available to help you and your family ensure the documents are accepted when presented and implemented correctly when utilized.
Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.