Health Care

Why Advance Directives are Needed

There are two sad parts to this story that illustrates why advance directives are needed. The first was that the family panicked and had a feeding tube put in, despite their mother’s wishes. The second, says WRAL in the article “Advance directives lift burden of tough decisions at end of life,” was that after the woman died several years later, her family found the advance directive.

Why Advance Directives are Needed
Advance directives are only useful if your family and friends know where you keep them.

Without knowing about a loved one’s wishes for their end-of-life care, it’s hard to honor them. That’s why documentation, like advance directives, are so important. So is telling your family where your important legal documents are.

What is an advance directive?

An advance directive is a broad legal term that can include several different documents, but mostly refers to a Living Will and a Health Care Power of Attorney. These documents give you the ability to express what medical care you want and don’t want.

Cases like the women mentioned above highlight the importance of this kind of document. While her advance directive was misplaced, many people don’t have them at all. These are important to address non-financial end-of-life issues, both for you and for your families.

Most people would prefer not to have life-prolonging measures implemented. Without advance directives, the decision to remove a breathing machine or a heart machine can be even more difficult for a spouse or a child. The burdens are not just emotional.

If there is no decision maker named and family members disagree about what you would have wanted, a battle may break out in the family that results in a court fight.

A few notes on advance directives:

  • They can be created at any time, but most people tend to consider them at midlife or close to retirement.
  • The document can be amended at any time and should be reassessed through the course of your life.
  • One decision maker should be appointed to avoid arguments.
  • A HIPAA release should be included with the advance directives so the decision maker can fully informed of your medical condition by your healthcare providers.

Health care agents, doctors and loved ones should all be provided with copies, and the originals should also be accessible.

Talk with your estate planning attorney about including an advance directive and a health care power of attorney among your estate planning documents. This is a burden that you can make lighter for those you love.

Reference: WRAL (Sep. 18, 2019) “Advance directives lift burden of tough decisions at end of life”

Estate Planning Is for Everyone

As we go through the many milestones of life, it’s important to plan for what’s coming, and also plan for the unexpected. An estate planning attorney works with individuals, families and businesses to plan for what lies ahead, says the Cincinnati Business Courier in the article “Estate planning considerations for every stage of life.” For younger families, it’s important to remember that estate planning is for everyone, and having an estate plan is like having life insurance: it is hoped that the insurance is never needed, but having it in place is comforting.

Estate planning is for everyone
Estate planning is the most effective way to protect against life’s unforeseen events, no matter what stage of life you may be in.

For others, in different stages of life, an estate plan is needed to ensure a smooth transition for a business owner heading to retirement, protecting a spouse or children from creditors or minimizing tax liability for a family.

Here are some milestones in life when an estate plan is needed:

Becoming an adult. It is true, for most 18-year-olds, estate planning is the last thing on their minds. However, as proof that estate planning is for everyone, at 18 most states consider them legal adults, and their parents no longer control many things in their lives. If parents want or need to be involved with medical or financial matters, certain estate planning documents are needed. All young adults need a general power of attorney and health care directives to allow their parents to step in and help, if something happens.

That can be as minimal as a parent talking with a doctor during an office appointment or making medical decisions during a crisis. A HIPAA release should also be prepared. A simple will should also be considered, especially if assets are to pass directly to siblings or a significant person in their life, to whom they are not married.

Getting married. Marriage unites individuals and their assets. For newly married couples, estate planning documents should be updated for each spouse, so their estate plans may be merged, and the new spouse can become a joint owner, primary beneficiary and fiduciary. In addition to the wills, power of attorney, healthcare directive and beneficiary designations also need to be updated to name the new spouse or a trust. This is also a time to start keeping a list of assets, in case someone needs to access accounts.

When a child is born. When a new child joins the family, having an estate plan becomes especially important. Choosing guardians who will raise the children in the absence of their parents is the hardest thing to think about, but it is critical for the children’s well-being. A revocable trust may be a means of allowing the seamless transfer and ongoing administration of the family’s assets to benefit the children and other family members.

Part of business planning. Estate planning should be part of every business owner’s plan. If the unexpected occurs, the business and the owner’s family will also be better off, regardless of whether they are involved in the business. At the very least, business interests should be directed to transfer out of probate, allowing for an efficient transition of the business to the right people without the burden of probate estate administration.

If a divorce occurs. Divorce is a sad reality for about half of today’s married couples. The post-divorce period is the time to review the estate plan to remove the ex-spouse, change any beneficiary designations, and plan for new fiduciaries. It’s important to review all accounts to ensure that any beneficiary designations are updated. A careful review by an estate planning attorney is worth the time to make sure no assets are overlooked.

Upon retirement. Just before or after retirement is an important time to review an estate plan. Children may be grown and take on roles of fiduciaries or be in a position to help with medical or financial affairs. This is the time to plan for wealth transfer, minimizing estate taxes and planning for incapacity.

Reference: Cincinnati Business Courier (Sep. 4, 2019) “Estate planning considerations for every stage of life.”

When Do I Need a Power of Attorney?

Without a valid durable power of attorney, the answer to the question of “When do I need a Power of Attorney”, really depends on what documents need to be signed.

when do I need a Power of Attorney
One of the most common misconceptions in estate planning is that a power of attorney remains in effect after the principal passes away.

A power of attorney is a legal document signed by the “Principal,” granting the authority to another individual to make decisions on the Principal’s behalf. This document is only in effect during the lifetime of the Principal.

nj.com’s recent article on this topic asks “Who can sign for an incapacitated person if there’s no power of attorney?” The article noted that to have the authority to conduct financial transactions concerning the assets solely owned by the incapacitated person who failed to execute a power of attorney, a guardian will have to be appointed by the court.

A guardianship is a legal relationship established by the court, in which an individual is given legal authority over another when that person is unable to make safe and sound decisions regarding his or her person, or property.

If it’s not an emergency, a guardian also will need to be appointed to make medical decisions for an incapacitated person who hasn’t signed a health care proxy. This is a legal document that gives a surrogate the authority to make health care decisions for an incapacitated person. It will take effect, if the principal is incapacitated or unable to communicate. The agent will make decisions that reflect the wishes of the incapacitated individual.

It’s typically not necessary to be appointed as an agent under a power of attorney or health care proxy or legal guardian for another person to sign an assisted living or nursing home admissions contract or a Medicaid application.

However, prior to signing another person’s admissions contract, read the fine print to be certain that you don’t become responsible for the bills!

Talk with a qualified estate planning attorney to find out more about the power of attorney requirements in your state and to add this important document to your estate plan.

Reference: nj.com (July 22, 2019) “Who can sign for an incapacitated person if there’s no power of attorney?”

Planning for the Unexpected

Sadly, this is not an unusual situation. The daughter spoke with her mother once or twice a week, and the fall happened just after their last conversation. She dropped what she was doing and drove to the hospital, according to the article “Parents” in BusinessWest.com. At the hospital, she was worried that her mother was suffering from more than fractures, as her mother was disoriented because of the pain medications.  She had no idea whether her mother had done any planning for unexpected events such as this.

planning for the unexpected
Without taking time to plan for unexpected events, things can get complicated…quick.

The conversation with her brother and mother about why she wasn’t notified immediately was frustrating. They “didn’t want to worry her.” She was worried, and not just about her mother’s well-being, but about her finances, and whether any plans were in place for this situation.

Her brother was a retired comptroller, and she thought that as a former financial professional, he would have taken care of everything. That was not the case.

Despite his professional career, the brother had never had “the talk” with his mother about money. No one knew if she had an estate plan, and if she did, where the documents were located.

All too often, families discover during an emergency that no planning for unexpected events has taken place.

The conversation took place in the hospital, when the siblings learned that documents had never been updated after their father had passed—more than 20 years earlier! The attorney who prepared the documents had retired long ago. Where the original estate planning documents were, mom had no idea.

For this family, the story had a happy ending. Once the mother got out of the hospital, the family made an appointment to meet with an estate planning attorney to get all of her estate planning completed. In addition, the family updated beneficiaries on life insurance and retirement accounts, which are now set to avoid probate.

Both siblings have a list of their mother’s assets, account numbers, credit card information and what’s more, they are tracking the accounts to ensure that any sort of questionable transactions are reviewed quickly. They finally have a clear picture of their mother’s expenses, assets and income.

If your family’s situation is closer to the start of the story than the end, it’s time to contact a qualified estate planning attorney who is licensed to practice in your state and have all the necessary preparation done. Don’t wait until you’re uncovering family mysteries in the hospital.

Reference: BusinessWest.com (Aug. 1, 2019) “Parents”

Why Do I Need an Attorney to Help Me with Estate Planning?

Your estate plan can be simple or complicated. The New Hampshire Union Leader’s recent article, “Estate planning is important and may require help from a professional,” says that some strategies are definitely easier to implement—like having a will, for example. Others are more complex, like creating a trust. Whatever your needs, most strategies will probably necessitate that you hire a qualified attorney to help with your estate planning.

do i need an attorney to help me with my estate planning
There is a range of legal issues that should be considered when putting your estate plan together.

Here are some situations that may require special planning attention that an attorney can help you with:

  • Your estate is valued at more than the federal gift and/or estate tax applicable exclusion amount ($11.4 million per person in 2019);
  • You have minor children;
  • You have loved ones with special needs who depend on you;
  • You own a business;
  • You have property in more than one state;
  • You want to donate to charities;
  • You own valuable artwork or collectibles;
  • You have specific thoughts concerning your own health care; or
  • You want privacy and want to avoid the probate process.

First, you need to understand your situation, and that includes factors like your age, health and wealth. Your thoughts about benefitting family members and taxes also need to be considered. You’ll also want to have plans in place should you become incapacitated.

Next, think about your goals and objectives. Some common goals are:

  • Making sure your family is taken care of when the time comes;
  • Providing financial security for your family;
  • Avoiding disputes among family members or business partners;
  • Giving to a charity;
  • Managing your affairs, if you become disabled;
  • Having sufficient liquidity to pay the expenses of your estate; and
  • Transferring ownership of your property or business interests.

Ask your attorney about a will. If you have minor children, you must have a will to name a guardian to raise your children if you can’t be there for them, unless your state provides an alternative legal means to do so. Some people many need a trust to properly address their planning concerns. Some of your assets will also have their own beneficiary designations. Once you have you a plan, review it every few years or when there’s a birth, adoption, death, or divorce in the family.

Reference: New Hampshire Union Leader (July 27, 2019) “Estate planning is important and may require help from a professional”

Prior Planning is Always a Better Alternative

None of us knows what kind of unexpected surprises will occur in our lives. We’d like to believe they will all be happy events, like winning the big Power Ball jackpot. However, unpleasant things like illness or a flood or fire often occur. We never think it will happen to us, says The Dalles Chronicle’s article “Prepare now for emergencies.” Unfortunately, these things do happen, and when they do, being prepared can make all the difference between a stressful situation and a really awful situation that could have been made, well, less awful.

For starters, have you met with an estate planning attorney to create a comprehensive estate plan that includes a last will and testament, a financial power of attorney and a health care power of attorney? The will concerns distribution of your possessions and property, the power of attorney gives a trusted person the ability to take financial and legal actions on your behalf, in the event that you become incapacitated and the medical power of attorney allows someone to make health care decisions for you, also if you become incapacitated. There are also many other tools that an estate planning attorney can help you with, such as a Special Needs Trust, if your family includes a family member with special needs, or other trusts, if they are needed.

Next, your emergency preparations should include having important documents assembled in a notebook, on a memory stick and/or a safe location. Imagine there was an emergency evacuation and you had to leave your home immediately. What documents would you need? Here’s a checklist:

  • Contact information for family members, doctors, attorneys, dentist, insurance broker, financial advisor.
  • Cash, so if ATMs are not working, you will have cash on hand.
  • Identification documents, including originals of your birth certificate, marriage license, divorce papers, passport, Social Security card, health insurance cards (or Medicare or Medicaid cards).
  • A video of your home and all of your possessions on your mobile phone. Consider emailing it to a family member or friend who lives in a different location.
  • Insurance policies for home, auto, disability, long-term care, etc. Include contact information for either 800-numbers or your local agent, if you need to file a claim.
  • A copy of recent financial statements for credit cards, banks, brokerage firms, retirement accounts, car loans, mortgage and similar types of accounts.
  • Copies of the last three years of tax returns. If you work with a CPA, they should have them on a secure portal, but a hard copy will be useful to have.
  • Legal documents for your estate plan, including the will, power of attorney and health care power of attorney, as described above.
  • Other legal documents, including car registration, car title and property deed to your home.

These documents should all be organized in a folder that is placed in your home where you and your spouse know where it is and can grab it on your way out the door.

One more item that should be noted in this digital age: if you use a laptop or tablet that contains websites that you use frequently for personal finance, investments, etc., be mindful of its location in the house, so you can grab it and a charger cable quickly. If you have passwords for accounts—and most of us do—you should print them out and include them in your file folder for easy access. You can almost always re-set a password, but how much easier will rebuilding your life be if you have them on hand?

If you do ever face a catastrophic emergency, having these materials will save you hours of time and stress.

Reference: The Dalles Chronicle (July 16, 2019) “Prepare now for emergencies”

Do I Need a Medical Power of Attorney?

A medical power of attorney is a legal document, also called a healthcare power of attorney or durable power of attorney for healthcare. This document lets you designate an agent to make medical decisions on your behalf. This can give you peace of mind, even if you don’t think you’ll need it, says SmartAsset in the recent article “How to Set Up Medical Power of Attorney.”  

Do I need a medical power of attorney
A medical power of attorney allows you to name another person to make medical decisions on your behalf if you can’t speak for yourself.

A medical power of attorney isn’t the same as a living will. A living will is a document that directs what you’d want healthcare professionals to do if you become incapacitated. This could include the implementation of life support and tube feeding, resuscitation attempts and organ donations.

A medical power of attorney doesn’t simply record your wishes as a living will does. It appoints a specific person to make medical decisions for you if you can’t speak for yourself. You might have both a living will and a medical power of attorney. If decisions need to be made about resuscitation and life support, recording those wishes in a living will takes those difficult decisions out of your agent’s hands.

When you’re deciding on someone to serve as your healthcare agent, find a person with whom you’re comfortable talking about your health-related issues.  This person should be your advocate, follow your wishes and make sound decisions—even if family says otherwise.

The Commission on Law and Aging of the American Bar Association advises that you select an agent you truly trust. It also offers some general guidelines for agents that you should probably avoid. The ABA says don’t choose an agent:

  • Who owns a health or residential facility that is in charge of your care;
  • Who’s a spouse or employee of anyone that currently serves you medically, like a doctor or residential facility owner;
  • Whose job it is to medically evaluate you, like a doctor;
  • Who’s the same person as your court-approved guardian or conservator; or
  • Who is already a healthcare agent for more than 10 people.

Be sure to name a backup agent, in the event your medical power of attorney can’t make decisions on your behalf.

Talk to a qualified estate planning attorney to get help with this and other legal documents, and to be sure that your documents meet your state’s requirements.

Reference: SmartAsset (May 8, 2019) “How to Set Up Medical Power of Attorney”

Leaving a Legacy Isn’t Just About Money

A legacy is not necessarily about money, says a survey that was conducted by Bank of America/Merrill Lynch Ave Wave. More than 3,000 adults (2,600 of them were 50 and older) were surveyed and focus groups were asked about end-of-life planning and leaving a legacy. The article, “How to leave a legacy no matter how much money you have” from The Voice, shared a number of the participant’s responses.

Leaving a Legacy
Most people would rather be remembered for how they lived their life instead of how much money they made.

A total of 94% of those surveyed said that a life well-lived, is about “having friends and family that love me.” 75% said that a life well-lived is about having a positive impact on society. A mere 10% said that a life well-lived is about accumulating a lot of wealth.

People want to be remembered for how they lived, not what they did at work or how much money they saved. Nearly 70% said they most wanted to be remembered for the memories they shared with loved ones. And only nine percent said career success was something they wanted to be remembered for.

While everyone needs to have their affairs in order, especially people over age 55, only 55% of those surveyed reported having a will. Only 18% have what are considered the three key essentials for leaving a legacy: a will, a health care directive and a durable power of attorney.

The will addresses how property is to be distributed, names a personal representative of the estate and, if there are minor children, names who should be their guardian. The health care directive gives specific directions as to end-of-life preferences and designates someone to make health care decisions for you, if you can’t speak for yourself. A power of attorney designates an agent to make financial decisions on your behalf if you’re unable to do so, because of illness or incapacity.

An estate plan is often only considered when a trigger event occurs, like a loved one dying without the proper documents in place. That is a wake-up call for the family, once they see how difficult it is when there is no estate plan.

Parents age 55 and older had interesting views on leaving inheritances and who should receive their estate. Only about a third of boomers surveyed and 44% of Gen Xers said that it’s a parent’s duty to leave some kind of inheritance to their children. A higher percentage of millennials surveyed—55%–said that this was a duty of parents to their children.

The biggest surprise of the survey: 65% of people 55 and older reported that they would prefer to give away some of their money, while they are still alive. A mere 8% wanted to give away all their assets, before they died. Only 27% wanted to give away all their money after they died.

Reference: The Voice (June 16, 2019) “How to leave a legacy no matter how much money you have”

Power of Attorney: Why You’re Never Too Young

When that time comes, having a power of attorney is a critical document to have. The power of attorney is among a handful of estate planning documents that help with decision making, when a person is too ill, injured or lacks the mental capacity to make their own decisions. The article, “Why you’re never too young for a power of attorney” from Lancaster Online, explains what these documents are, and what purpose they serve.

Everyone over the age of 18 needs to have a Power of Attorney in place.

There are three basic power of attorney documents: financial, limited and health care.

You’re never too young or too old to have a power of attorney. If you don’t, a guardian must be appointed in a court proceeding, and they will make decisions for you. If the guardian who is appointed does not know you or your family, they may make decisions that you would not have wanted. Everyone over the age of 18 should have a power of attorney.

It’s never too early, but it could be too late. If you become incapacitated, you cannot sign a POA. Then your family is faced with needing to pursue a guardianship and will not have the ability to make decisions on your behalf, until that’s in place.

You’ll want to name someone you trust implicitly and who is also going to be available to make decisions when time is an issue.

For a medical or healthcare power of attorney, it is a great help if the person lives nearby and knows you well. For a financial power of attorney, the person may not need to live nearby, but they must be trustworthy and financially competent.

Always have back-up agents, so if your primary agent is unavailable or declines to serve, you have someone who can step in on your behalf.

You should also work with an estate planning attorney to create the power of attorney you need. You may want to assign select powers to a POA, like managing certain bank accounts but not the sale of your home, for instance. An estate planning attorney will be able to tailor the POA to your exact needs. They will also make sure to create a document that gives proper powers to the people you select. You want to ensure that you don’t create a POA that gives someone the ability to exploit you.

Any of the POAs you have created should be updated on a fairly regular basis. Over time, laws change, or your personal situation may change. Review the documents at least annually to be sure that the people you have selected are still the people you want taking care of matters for you.

Most important of all, don’t wait to have a POA created. It’s an essential part of your estate plan, along with your last will and testament.

Reference: Lancaster Online (May 15, 2019) “Why you’re never too young for a power of attorney”

Complete Your Financial Plan with Estate Planning

Here at Mastry Law we’ve always referred to estate planning as the final piece of your financial planning puzzle.  If you are among those who haven’t put together a basic estate plan, you should make every effort to accomplish this in 2019. Your family and friends will thank you.

The Minneapolis Star-Tribune’s recent article, “No financial plan is complete without a basic estate plan” reports that, while Americans are living longer, it was emphasized in a session at the American Society on Aging’s 2019 conference in New Orleans that 56% of Americans don’t have a will.

Estate Planning is the final piece of your financial planning puzzle.

The basic list isn’t particularly daunting. Talk to an experienced estate planning lawyer to create a will to get your affairs in order.

You should also sign a health care directive and a durable power of attorney. It is also important to decide where you want to be buried or cremated.

You should discuss your late-life goals and desires with your family, relatives and close friends. This gives everyone a better idea about your values and thinking. An estate plan makes things much less stressful on your family.

Many people want to leave at least some money to their loved ones. However, instead of waiting for death to pass on assets, more people are now deciding to “give while living.”

For example, grandparents can help to fund their grandchildren’s education expenses. Nearly two-thirds of people 50 years and older are giving some financial support to family members, according to a survey by the financial services firm Merrill Lynch and demographic consulting firm Age Wave.

Since you are already thinking about your life while devising an estate plan, it is important to understand that far more valuable than your money and assets is your accumulated experience, knowledge and skills. You can tap into your experience later in life to help others succeed.  Your experience and judgment can help family members decide how to have both purpose and a paycheck.

Perhaps you can serve as a mentor for those in your community in areas where you have some expertise?

The desire to leave our families with a legacy is powerful. Don’t leave them without an estate plan.  Remember that giving of our experience can make a significant difference to the community around us.

Reference: Minneapolis Star-Tribune (May 4, 2019) “No financial plan is complete without a basic estate plan”

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