Advance planning
One of the wisest things to do as a person living with HIV is to provide legal protections for yourself, your family, and your property in the event that your health worsens and you are unable to make decisions for yourself, or you die. Wills, trusts and powers of attorney help you to plan out your wishes ahead of time. It is an easy process to set up these types of legal documents, which explain how to provide care for you or your children if your are very sick, and how you wish to divide up your possessions in the event of death. Even if you are not very sick at the moment, it's smart to have these papers made now in case you suddenly become very sick in the future. You do not have to go to court to set up these documents.
What does a will do?
A will is a document you create that gives instructions about what should be done with your property after your death. In your will, you must name someone to be a "personal repre-sentative" to carry out your wishes for the distribution of your property. The personal representative will also be responsible for determining what debts exist and how they will be handled. Some types of property that you own "jointly," or together, with someone else may be distributed to the other owner after your death without a will. Some examples of this type of property are joint bank accounts and real estate legally owned by both you and another person.
Do I need a will?
Probably. If you don't have a will and you die in Wisconsin, your property will generally pass to the next closest relative (a spouse; if no spouse, then children; if no children, then parents; etc.) If you don't want your property to pass this way, or if you have certain possessions that you would like a certain person to have, then you should have a will. Note that in Wisconsin, if you are married, your spouse may automatically own half the value of many of your possessions.
If you have a life partner and are not married, then you probably want a will. This document will ensure that your partner inherits your property as you wish. If you are divorced and either re-married or in a long-term non-marital relationship, and have children from your first marriage, it also would be wise to make a will. Even people who have a spouse and want that person to inherit their property sometimes need a will if there are any special instructions or restrictions relating to the property.
Can I use a will to name the person whom I want to care for my children in case I die?
Yes. If your children are under 18, you may nominate in your will the person whom you would like to care for them. This does not guarantee your wishes, but the judge will strongly consider your wishes when determining who will be the guardian of your children. If you don't want to leave the guardianship to chance, instead of naming a guardian in your will, you can go to court and set up a guardianship for your child while you are alive. For more information, see the Family Law chapter.
Can I use a will to make my funeral wishes clear? Will they be followed?
You can place your funeral wishes in your will, but there is no guarantee that your wishes will be followed. The only way to guarantee that your wishes will be followed is to make your funeral arrangements prior to your death. Many funeral homes will allow you to pre-plan and pre-pay for your funeral. If you have definite wishes regarding your funeral, you may decide to contact a funeral home and ask about pre-planning. If you can't afford to pay for funeral arrangements ahead of time, you should ask an attorney to place language in your will that would only allow funeral expenses to be paid out of your estate if your funeral wishes are followed.
Most importantly, if you have definite wishes concerning your funeral, it is best to discuss these wishes directly with your family and friends in order for the wishes to be carried out the way you want.
What is probate?
Probate is the court process to accept your will, appoint the person you have named as personal representative, and oversee the distribution of your property according to your wishes as stated in your will. Probate court charges a fee for settling your estate, which is determined in part by the value and type of assets you have at the time of death. Having a will does not avoid probate. However, it makes the process easier since you have made your wishes clear in the document.
What is a trust?
A trust is a document that you create that allows someone else to hold your property for the benefit of a third person, such as a child or partner, called the "beneficiary." For a trust, you need to name a person to hold and protect your assets, and distribute them to the person you designate as the beneficiary.
If you name a child or loved one as a beneficiary of a life insurance policy, a trust can be used to hold the assets for that person.
A trust can be written to begin during your life (called a living trust) or after your death. You may include a trust in your will, or create a trust separate from a will. It is a good idea to consult an attorney to see if you should set up a trust to satisfy your planning needs.
What if I die with more debt than money?
If you don't have enough money or property to cover your debts, then the people to whom you owe money, called creditors, will not get paid. Creditors are limited to the property that exists in your estate at the time of your death. Neither the personal representative you name to carry out your will, nor your heirs, are responsible for paying your debts. In Wisconsin, however, if you are married when you die, your spouse may be responsible for the remaining debts.
What is a health care power of attorney (HCPOA)?
A HCPOA is a document that authorizes a person that you appoint to make health care decisions for you, in case you lose capacity to make those decisions for yourself or cannot com-municate.
A HCPOA can give your doctor and loved ones specific directions regarding your health care, end of life decisions, and funeral arrangements. You must be at least 18 years of age and competent to create a valid HCPOA. When you sign aHCPOA, it must be witnessed by two people who are not your family members or health care providers.
The person you appoint to make decisions for you, called the agent, should be someone you trust who understands your wishes on health care issues and will follow them. It is a good idea to name a second, substituteagent who can act on your behalf if your first-choice agent dies, resigns, or becomes incapacitated.
Why do I need a health care power of attorney (HCPOA)?
A HCPOA is important because without it, your spouse, family members, or life partner have no legal right to make decisions about your medical treatment. Medical providers are becoming less willing to accept directionfrom an incapacitated person's family members without a HCPOA. Without it, your doctor may be influenced by a parent or a spouse who has different ideas than you do about your care. If you need to enter a nursing home or community-based residential facility, and you cannot make decisions for yourself and do not have a HCPOA, a judge will appoint a guardian for you to decide whether it is in your best interests to do so. However, if you have a HCPOA in place, a loved one whom you have appointed to be your HCPOA agent will be able to make these kinds of decisions.
Signing a HCPOA is the best way for you to ensure that your health care wishes will be followed.
End of life decisions: Living Wills.What are they? How are they different from HCPOAs?
A "living will" is also called a Declaration to Physicians. You must be at least 18 and mentally competent to make this declaration. If your condition is terminal and death is imminent, a living will gives your doctor an order to withhold or withdraw life-sustaining procedures. As you can see, a living will is a specific kind of document -- it is not the same thing as a "will." The living will is much narrower than a health care power of attorney (HCPOA) because it only applies to decisions relating to the end of your life. The HCPOA covers this as well as other medical treatment decisions. Generally, if you have someone you trust to be your HCPOA agent, then a HCPOA is all you need. Unlike a health care power of attorney, you don't need to appoint someone to be your agent in a living will. Your doctor will carry out your wishes directly.
What is a financial power of attorney (FPOA)?
A FPOA is a document which allows you to appoint another person to manage your finances, bills, and/or property. There are two types of FPOAs. The immediate power of attorney gives your appointed agent the power to make financial decisions for you immediately upon signing the document. In a springing power of attorney, the person you appoint as your agent only has authority over your finances, bills, and/or property if become incapacitated or incompetent. Even if you are healthy, springing power of attorneys are very important in case your health takes a turn for the worse and you become unable to manage your affairs..
To set up either kind of FPOA, you must be 18 years of age and mentally competent. You also must have someone you can trust to appoint as your FPOA agent in the first place.
How much power over my affairs does a financial power of attorney (FPOA) document give to the FPOA agent?
In your FPOA document, you have the right to give a FPOA agent as much or as little control over your activities as you wish. A FPOA may be very limited. For example, it may be a card signed at the bank appointing anagent for one bank account. A FPOA also may be very broad. For example, it may be a lengthy document authorizing your agent to do anything you could do with your property, like sell your car, make gifts, and forwardmail.
A broad FPOA is necessary if you are planning for a disability.
What are a financial power of attorney agent's duties?
The agent you appoint has a duty of loyalty and good faith to you. Your agent must act in your interest and follow your direction and wishes.
Does signing a financial power of attorney affect my rights to do business on my own behalf?
No.
How long does a financial power of attorney (FPOA) last?
A FPOA will terminate upon your death, unless you set forth in the FPOA document a certain date that you want it to end. A FPOA will also terminate if a court appoints a guardian to handle your estate. You may terminate or revoke your own FPOA at any time, as long as you are not mentally incapacitated.
Do I need a lawyer to draft my advance planning documents?
It is best to ask an attorney to set up these documents for you, and tailor it to your needs. An attorney will also be able to advise you which documents suit your needs in the first place. Finally, an attorney will make sure that your wishes are expressed clearly so that the documents cannot be challenged later. See the Resources chapter for a list of free legal services that can help you. However, if you want to complete one yourself, standard forms for advance planning documents are available at office supply stores.
Who should have copies of my advance planning documents?
Wills & Trusts: For safe keeping, file a copy of your will with your local "probate court" (every county has one), and ask your attorney to keep a copy. If you have a family member or partner who is close to you, ask them to keep a copy too. Also keep a copy at home. In Wisconsin, the law provides that your only valid will is the signed original, therefore make sure that document is stored in a safe place.
Health Care Power of Attorneys (HCPOAs) & Living Wills: For both of these documents, give copies to your health care providers and discuss your wishes with them as you hand them your documents. If youelect to have a HCPOA, give copies to your health care agent and substitute agent, and family members and friends who may be involved in your care. Be sure to talk with these people about your wishes when you give them a copy of these documents. It may be hard to discuss these matters but it will avoid confusion and allow for swift and proper decision-making if needed.
Financial Power of Attorneys (FPOAs): Make a copy for yourself and one for your FPOA agent. You should keep the original copy of your FPOA in a safe place. An original FPOA is needed for most business transactions, so your agent should know where to find the original if needed. Some businesses, especially banks, will require that you complete their FPOA form even if you already have one. You should check to see if your financial institutions require their own forms.
Who should I appoint to be my agent for a health care or financial power of attorney?
You should choose a trusted, responsible, and reasonably organized person to act as your agent. Married people often appoint their spouses. Other possibilities are children, other relatives, a life partner, or a trusted friend.
As with other advanced planning documents, it is good to choose a second, alternate agent in your power of attorney document.
May I change an advance planning document?
Yes. If you wish to change even a portion of an advanced planning document, especially a will, it is best to destroy the old document and replace it with a new one to avoid confusion and challenges to the document. Whether you make a new document or change an old one, be sure to tell the people to whom you gave copies that their copies are invalid.
If I move to or from another state, will my advance planning documents be valid?
It depends. Each state has its own rules. If you move to a new state, you should have your documents reviewed by a lawyer to make sure they are valid in that state. You may call an AIDS legal services program for assistance (see Resources chapter for phone numbers).
Last updated: January 1999 | 
