Guest Article by Bogan
As is well documented on MSB, preparedness can take many forms: food, water, sanitation, defense, fire (heat), medical, bugging out, getting home, going off grid, and much, much more.
However there is another type of preparedness that should also be on the radar screen:
Legal preparedness. What follows here is not legal advice, nor is it remotely intended as such. Rather it is a general treatment of the topic.
What do I mean by the term “Legal Preparedness”? It refers to the things you can do that are within your control NOW that can affect how the future may play out as far as you and your family as members of society go, as well as your “stuff” – your real and personal property. In other words, you can act now to be better legally prepared to face whatever life throws at you.
Some of these things are just common sense, although they have a legal impact.
Think of three big questions:
– Who am I?
– What is my stuff?
– What do I want done? (With my health and my stuff)
It’s not good enough to simply have answers to these questions. To be legally prepared means you must be able to PROVE these things to third parties, whether they be a judge, a nurse at the emergency room, a cop who has closed off a section of road your house sits on, or a thousand other scenarios.
DOCUMENT, DOCUMENT, DOCUMENT
The answer to the first two questions is to assemble all documentary evidence, papers, passport, car titles, utility bills (proving residence), birth certificates, DD214, pictures, videos of your stuff, screen shots of your bank statements and IRA account(s), etc. Scan and save them electronically, and print out a full hardcopy. Items with serial numbers or distinctive markings should be photographed twice – the item itself, and then a close up of the serial number or distinctive mark. When it comes to thoroughness on documenting “stuff”, think skeptical insurance adjuster who wants proof that you once owned something.
Storage of documents. Think carefully about storing of originals in a vault at the bank, because the very time you might need to have access to the vault may well be the very time you (or your agent) can’t get into it (EMP? Martial Law?). One school of thought is to store originals in a fireproof safe of some kind, (with a non-electronic lock) over which you have control. A belt-and-suspenders approach is to store the originals in a suitable location and put a set of copies in a vault at the bank…
Of these documents, a person should also consider having a separate hardcopy of all government issued ID’s handy in your BOB or BOV, as well as proof of ownership of your BOL or proof of a right to occupy it (lease, utility bill, letter from owner, etc.). Reminder: your ham license is also a Government issued ID.
With this project complete, you have credible evidence of who you are and what your stuff is – whether or not you are alive or dead. You have begun your journey to legal preparedness.
DOCUMENTS YOU CAN GENERATE NOW TO HANDLE SITUATIONS IN THE FUTURE
Three basic “legal” documents on the path to legal preparedness are the “Advanced Healthcare Directive”, the “Power of Attorney” and the “Will”.
Of these three in the majority of jurisdictions in the USA, the first two can be in effect during your life but are automatically extinguished when you die. The Will only comes into effect after you die. A person can get a lot fancier then just these three, but these are at least a starting point. Each is discussed in turn:
1) The Advanced Medical Directive
2) Power of Attorney
3) The Will (“Last Will and Testament”)
Advanced Medical Directive
(Also Known As Living Will, Personal Directive, Advance Directive, Medical Directive Or Advance Decision)
This is a document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity (recall the Terry Schiavo case a few years back)
Some people first think of this document as the one that authorizes the “pulling of the plug” (on their life) if certain conditions are met, but the landscape is much bigger than that: another key component is who you select as your “agent”, that is, the person who is authorized to make medical decisions on your behalf. These decisions can be – and often are – on a smaller scale than pulling the plug. Depending on state law, some variants of the Advanced Medical Directive go into detail about guardianship, autopsies, and more.
Where the Advanced Medical Directive covers your health, the next document covers your “stuff” – your business affairs – while you are still alive.
Power of Attorney
A durable power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter.
According to Wikipedia: “The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent or, in some common law jurisdictions, the attorney-in-fact”.
The agent need not be a qualified lawyer despite the use of the word “attorney” in the definition. It is usually a trusted family member.
In most states of the US, the authorization can come into effect either immediately (such as an elderly person delegating the authority to a trusted family member in anticipation of a major surgical procedure), or upon the occurrence of a foreseeable future event (such as the onset of dementia or a car accident).
In effect, under a durable power of attorney, the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor’s death, unless earlier revoked by the grantor (“my surgery was successful, I now feel comfortable making my own decisions again”).
The Will (“Last Will and Testament”)
A will is a legal document by which a person (the “testator”), expresses their wishes as to how their property is to be distributed at death, and names one or more persons (the “executor”), to manage the estate until its final distribution.
The will does not come into effect until after the testator dies.
A will may also create a testamentary trust that is effective only after the death of the testator. A common use of a testamentary trust is to take care of children of the testator until they are old enough to handle their own affairs.
Further, the will is sometimes used as a vehicle by the testator to designate his/her preference for who is to be guardian of the testator’s minor children. It will likely be a judge who will make the final ruling on guardianship, but a statement in the will may help sway the judge.
The formalities of executing a valid and binding will vary widely amongst jurisdictions. The risk here is you may assemble what you think is the most perfect will, only to have it rejected for probate – and therefore useless – because it failed to meet the formalities of execution in your legal jurisdiction.
One thing to keep in mind is that, ideally, each person has their own will. Things get complicated…fast…if there is more than one testator (such as a husband and a wife) in a will.
SHOULD I HIRE A LAWYER?
Laws vary (a lot!), and the bottom line on these documents is that they need to be valid and enforceable in your specific state and country. IMO your best option is to seek help from a lawyer. In any event, do it now, and get it right, because the time to discover the document needs to be redone is NOT when the ambulance has shown up in front of your house…
Certainly you can do it yourself, but this may be false economy. Remember this: the law books are filled with screw-ups, and it is the lawyers who have to straighten out even innocent or well-intentioned mistakes. Buy once, cry once, right?
An attorney (US and Canada), solicitor (in the case of common law countries outside of North America such as England and Wales, Scotland or Ireland) or Civil Law Notary (A legally qualified individual called Notario or Notario Publico in Latin America) can assist in its preparation.
Note: Please don’t confuse a Notary in the US with a Notario in civil law countries: Notaries in the US are NOT authorized to prepare these documents (unless they are also a lawyer) although they can notarize a document prepared by others.
A variation on this theme occurs if you live in a common law country but have assets in a civil law jurisdiction (example, live in US, but have real estate in France). A Scrivener (in England and Wales) or a registered Civil Law Notary (registered in Florida or Alabama) can assist in preparing documentation that is more readily enforceable overseas. In Louisiana, which is the only civil law jurisdiction in the US, any qualified (admitted to the Louisiana bar) lawyer should be able to help with preparing documents that pass muster in civil law countries.
While this field can get complicated, I have attempted to distill the discussion into something that is relevant and meaningful to the preparedness-minded: something that a reader can act on with an understanding of the objective – that is: getting started in the area of legal preparedness.
WHAT STEPS HAVE YOU TAKEN TOWARD LEGAL PREPAREDNESS?