I. Will: A will is a revocable instrument that directs the disposition of a person’s property upon his death. Anyone who is at least 18 years of age and of sound mind can make a will. To be valid in Maryland, a will must be signed in the presence of two witnesses (also at least 18 years of age) who sign in the presence of the testator and each other. Some objectives that may be achieved by preparing a will include:
A. disposing of property to beneficiaries outright or subject to certain restrictions;
B. naming a personal guardian for the decedent’s minor children;
C. establishing a trust or transfer under the Uniform Transfer to Minor’s Act and appointing trustees or custodians for property inherited by a minor;
D. designating a personal representative (also known as an executor) for the decedent’s estate; and
E. reducing estate taxes through the use of testamentary trusts.
A will does NOT dispose of property which is subject to other instruments that dictate what happens upon the death of the property owner. Examples of such instruments include: property owned by joint tenants, payable-on-death accounts, transfer-on-death securities, retirement accounts and other retirement benefits (unless the estate is named as beneficiary), life insurance proceeds, or property placed into a living trust.
The provisions of a will may be changed throughout a person’s lifetime by preparing a new will or preparing a codicil that amends an existing will. The new will or codicil must be executed with the same formal requirements as the original will, and the codicil must specifically reference the original will. If a person dies without a will, or with property that is not covered by his will, such property passes according to Maryland’s intestate succession laws. This is the state’s way of making a will for a person who dies without one.
II. Living Will: A living will is a document which enables a person (the “Declarant”) to presently make decisions about life-sustaining procedures if, in the future, he is in a persistent vegetative state or his death from a terminal condition becomes imminent. A Living Will may also be referred to as a Declaration, Medical Directive, Advance Health Care Directive, or Directive to Physicians. A living will must be prepared by a competent adult and signed in the presence of two witnesses. Before a living will can be used to guide medical decisions affecting the Declarant, two physicians must certify that the Declarant is unable to make medical decisions and that he is either in a persistent vegetative state or terminally ill. The Supreme Court has recognized the right to control one’s medical treatment, including the right to die with dignity. A medical professional is obligated to follow “clear and convincing evidence” of a patient’s wishes, even if those wishes conflict with the desires of relatives, hospital policies, or principles of those providing medical care.
III. Power of Attorney for Health Care: A legal document that allows a person (the “Principal”) to designate someone else (the “Health Care Agent”) to make health care decisions on his behalf. This document may also be referred to as a Health Care Proxy, Medical Power of Attorney, Health Care Surrogate, or Patient Advocate Designation. A Power of Attorney for Health Care must be prepared by a competent adult and signed in the presence of two witnesses. Unless the Principal provides otherwise, a Power of Attorney for Health Care becomes effective when the Principal’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision.
IV. Power of Attorney for Property: A Power of Attorney for Property is a legal document that allows a person (the “Principal”) to name someone he trusts (the “Attorney-in-Fact”) to manage his financial affairs if he becomes incapacitated. This document may also be referred to as a Durable Power of Attorney for Finances or Financial Power of Attorney. The Principal determines how much power to give the Attorney-in-Fact over his finances. The Principal can determine whether to make a Power of Attorney effective immediately or upon a doctor’s certification of incapacity of the Principal. As of October 1, 2010, Powers of Attorney for Property must be signed by the principal, two witnesses, and a notary. Click here for a more thorough discussion of the Power of Attorney law that took effect in Maryland on October 1, 2010.