Charles N. Doberneck

Subtitle

Appointment of Health Care Representative - A legal document created during a person's lifetime in which a person appoints one or more other persons to make health care decisions if the appointing person is unable to communicate his or her wishes at the time a health care decision or treatment needs to be done.

Attorney-In-Fact - the person appointed to act on behalf of the principal who creates a power of attorney.  The attorney-in-fact is often called the "power of attorney".  The attorney-in-fact need not be an attorney, and is generally the spouse or child of the principal who creates the power of attorney.

Emancipated Minor - a minor who has put himself or herself outside his or her parents' control and is in fact self-supporting.

Fiduciary - a person in a position of trust, good faith, candor and responsibility who is charged with the legal duty to act primarily for another person's benefit, such as an attorney-in-fact, guardian, personal representative, or trustee

General Durable Power of Attorney - a legal document in which a person (the principal ) appoints one or more other persons (the attorney-in-fact or "agent") to perform certain acts on behalf of the principal concerning the principal's property or finances.

Guardian - A fiduciary appointed by a court for an incapacitated person or minor, and who is given the authority and responsibility for managing the personal care or the property and financial affairs of a incapacitated person or minor whom the court has legally determined to be incompetent to manage his or her personal care or financial affairs.

Incapacitated Person -an individual who(1) cannot be located upon reasonable inquiry; (2) is unable: (A) to manage in whole or in part the individual's property; (B) to provide self-care; or (C) both; because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity; or
(3) has a developmental disability (as defined in IC 12-7-2-61).

Intestate - A person who dies without a valid will; Probate property not disposed of by a will.

Intestate Succession - The order of distribution of property by statute when a person dies without a valid will.

Living Will -  a legal document created during lifetime in which a person (the "Declarant") gives instructions concerning health care in the event the Declarant is in a terminal condition and the Declarant's attending physician certifies in writing that:  (1) the Declarant has an incurable injury, disease, or illness; (2) the Declarant's death will occur within a short period of time; and (3) the use of life-prolonging procedures would serve only to artificially prolong the dying process.  In that event, the living will directs that such procedures be withheld or withdrawn, and that the Declarant be permitted to die naturally with only the performance or provision of any medical procedure or medication necessary to provide the Declarant with comfort care or to alleviate pain.

Living Trust - a trust that is created during the lifetime of the person who creates the trust (called the "grantor," "settlor," or "trustor)." Living trusts are also referred to as "inter vivos trusts".  Most living trusts are revocable, which means that grantor retains the right to revoke or amend the trust in any way and at any time.  A living trust is frequently used as a will substitute in order to pass property belonging the grantor to the grantor's intended beneficiaries without having to go through the probate process (see "probate" below).

Minor - an individual who is less than eighteen (18) years of age and who is not an emancipated minor.

Non-Probate Estate/Non-Probate Property - Property which passes upon the death of a decedent to another person in a manner other than under the decedent’s will or under the law of intestate succession.  Non-probate property includes property in a living trust payable to a named beneficiary following a decedent’s death, property that is subject to distribution to a named beneficiary by contract (such as life insurance, annuities, jointly owned property with right of survivorship, bank or retirement accounts with a named beneficiary) or property payable to a named beneficiary pursuant to statute (such as  a “pay on death” or “transfer on death” account payable to a named beneficiary).  Non-probate property passes to named beneficiaries apart from and regardless of the terms of the decedent’s will or the law of intestate succession.

Principal - the person who appoints and authorizes another person or persons to act on the principal's behalf under a power of attorney.

Probate - With reference to a will, probate is the legal process in which a court reviews a will to determine whether it is authentic and legally valid.  Probate also refers to the process, generally under the supervision of a court, of administering a deceased person's will or the probate estate of a deceased person without a will. This process involves collecting a decedent's assets, dealing with the decedents debts and taxes that may be due, and distributing the remaining assets to beneficiaries. Those actions are carried out by the personal representative of the estate.

Probate Avoidance - The strategy and goal of making unnecessary either making a will or having to probate one’s will by having one’s property in the form of non-probate property.  It also refers to the strategy and goal of a personal representative administering one’s probate property without court supervision.

Probate Estate/Probate Property - Property in the sole name of a decedent, and which is not subject to distribution: to a named beneficiary under a living trust; by contract (such as life insurance, annuities, jointly owned property with right of survivorship, bank or retirement accounts with a named beneficiary); or to a named beneficiary pursuant to statute (such as a “pay on death” or “transfer on death” account payable to a named beneficiary).

Testamentary Trust - a trust established under a will.  Because a will is not effective until after the death of the person making the will, a testamentary trust can be funded and become effective only after the death of the person making the will and after the will is "probated" (see "probate" above).