Living Will

Why A Healthcare Power of Attorney Makes Sense

Having a Healthcare Power of Attorney makes sense.  Having it in place before it is needed is one of the best ideas of estate planning, along with having a Power of Attorney in place before it is needed. Why? This is because taking a pro-active approach to both of these documents, means that when the unexpected occurs and that is exactly how things occur—unexpectedly—the person or persons you have named for these important roles will be able to step in quickly and made decisions.

Having a healthcare power of attorney makes sense
A healthcare power of attorney is an often overlooked, but essential part of any good estate plan.

Time is often of the essence, when these documents are needed.

According to the article “Medical guardianship versus power of attorney” from The News Enterprise, a health care power of attorney is a document that grants another person the power to make medical decisions for you, when you no longer have the ability to make those decisions for yourself. It is known by a few other names, depending on the state where you live: health care proxy, a medical power of attorney or a health care surrogate.

It needs to have HIPAA-compliant language, which will allow the person you name the ability to review medical information and discuss protected health information with your health care providers.

A health care power of attorney may also include language for an advance medical directive, which gives instructions for end-of-life decisions. This is often called a “living will,” and is your legal right to reject medical treatment, decisions about feeding tubes and the number of doctors required to determine the probability of recovery and pain management.

A health care power of attorney does not generally empower another person to make decisions, until you are unable to do so. Unlike a general durable power of attorney, which permits another person to make financial or business decisions with you while you are living, as long as you are able to understand your medical situation, you are still in charge of your medical decisions.

A guardianship is completely different from these documents. A guardian may only be appointed, if a judge or jury finds you wholly or partially disabled in such a way that you cannot manage your own finances or your health. The appointment of a guardian is a big deal. Once someone has been appointed your guardian, you do not have any legal right to make decisions for yourself. A court will also appoint a legal fiduciary, who will make your financial decisions.

There are record-keeping requirements with a guardianship that do not exist for a power of attorney. The court-appointed representative is responsible for reporting to the court any actions that they have taken on your behalf.

To have power of attorney documents executed, the person must be capable of understanding what they are signing. This means that someone receiving a diagnosis of dementia needs to have these documents prepared, as soon as they learn that their capacity will diminish in the near future.

If the documents are not prepared and executed in a timely fashion, a guardianship proceeding may be the only option. Planning in advance is the best way to ensure that the people you trust are the ones making decisions for you. Speak with an experienced estate planning attorney now to have these documents in place.

Reference: The News-Enterprise (Oct. 13, 2019) “Medical guardianship versus power of attorney”

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 Basics Everyone Should Know

The discomfort most people have with the knowledge of their own mortality makes it challenging for some people to do the estate planning that needs to take place before an emergency occurs. However, according to the Gettysburg Times’ recent article “Essentials necessary for estate planning,” the best course of action is to take care of the estate planning basics now, when there is no urgency. Having detailed plans in place to protect loved ones from possible complications, costs and added stress in the future, is a gift you can give to those you love.

Estate Planning Basics
Taking care of the estate planning basics is a simple but important step for everyone to take.

There are any number of legal documents and strategies used to accommodate the varied situations of life, including family dynamics and asset levels. An estate planning attorney licensed in your state will have the ability to create a plan and the documents that suit your personal situation. The three documents discussed in the following section are generally considered to be the most important for anyone to have.

Power of Attorney or POA—This document gives legal authority to another person or entity, referred to as your “Agent”, to perform certain acts on your behalf, when you cannot do so because of illness, injury or incapacity. There are many different types of POA, from a “full” POA with no limitations, to a “limited” POA that is created solely for a specific purpose. This document comes into action, when you are incapacitated and becomes void upon your death.

Living Will—This is a detailed health care directive that allows you to list your wishes regarding several medical procedures and life-sustaining treatments. These treatments include resuscitations, breathing assistance, feeding tubes and similar medical matters. You want to have this in place to spare your loved ones the emotional anguish of trying to decide what you would have wanted. They’ll know, because you specifically told them in this document.

Last Will and Testament—When prepared correctly, and that includes signed, witnessed, and notarized, a will is used by the “testator” (the person making the will) to provide the legal wishes regarding what should happen to their minor children (if any) and assets upon death.

What happens if you don’t have these documents? It is likely that your loved ones will need to go to court to have someone named as your agent or executor, which is the person who is in charge of your estate. Depending upon the laws of your state, that person may be a family member, or it may end up being a family member who you haven’t spoken to in decades. It is far better to take the time to have these estate planning basics taken care of by an estate planning attorney, so your family is protected, and your wishes are fulfilled.

The best time to do this, is when there is no crisis. Estate plans also require regular monitoring and updating. Life circumstances change, estate and tax laws change, and new opportunities may present themselves. Speak with your estate planning attorney now and create your plan for the future.

Reference: Gettysburg Times (July 27, 2019) “Essentials necessary for estate planning”

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”

How Do I Create 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) that names an agent to make medical decisions on your behalf, explains Yahoo Finance’s recent article, “How to Set Up Medical Power of Attorney.” A medical power of attorney gives a family member or a trusted friend (a “healthcare agent”) the legal authority to make health decisions for you.

How do I create a medical power of attorney
The medical power of attorney is one of several documents that should be part of your estate plan.

This isn’t the same as a living will, which is a document that details what you’d like your healthcare team to do, if you become incapacitated. You may have a living will and a medical power of attorney. If decisions must be made about resuscitation and life support, recording those wishes in a living will, removes those difficult decisions from your agent.

When you’re thinking about a person to be your healthcare agent, find someone with whom you’re comfortable discussing health-related issues. Select a person you trust with your life and who will assume this responsibility if and when the time comes. Your agent must be your advocate, execute your wishes and make wise decisions, even when friends and family are telling them otherwise.

Here are some general guidelines for healthcare agents that you should avoid. Don’t choose:

  • Your healthcare provider or the person who owns a health or residential facility in which you’re residing;
  • A person whose job it is to medically evaluate you, such as a physician;
  • A person who works for a government agency that is financially responsible for your care unless she’s a blood relative;
  • The same person as your court-approved guardian or conservator; or
  • A person who’s already a healthcare agent for more than 10 other people.

It’s important to also name a backup agent, in the event that your primary healthcare agent can’t make decisions on your behalf.

The medical power of attorney is one of several documents that should be part of your estate plan. Meet with an estate planning attorney to make sure that you have the correctly prepared documents you need to protect yourself and your family.

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

Do I Need to Update My Estate Plan if I Relocate for Retirement?

Update my estate plan when I relocate
Anytime you relocate to another state you should have your estate planning documents reviewed to make sure they comply with the law in the state you’ve moved to.

Anyone who moves to another state, for retirement, a new job or to be closer to family, needs to have a look at their estate plan to make sure it is valid in their new state, advises the Boca Newspaper in the recent article “I’ve Relocated To Florida…Should I Update My Estate Plan?”  

If an estate plan hasn’t been created, a relocation is the perfect opportunity to get this important task done. Think of it as preparation for your new life in your new home.

Because so many retirees do relocate to Florida, there are some general rules that make this easier. For one thing, most wills that are valid in another state are recognized in Florida. There’s a specific law in the Florida statutes that confirms that “other than a holographic or nuncupative will, executed by a nonresident of Florida… is valid as a will in this state if valid under the laws of the state or country where the will was executed.”

In other words, if the estate plan was prepared by an estate planning attorney and is legally valid in the prior state, it will be valid in Florida. Exceptions are a holographic will, which is a handwritten will that is signed by the person with no witnesses, or a nuncupative will, which is a verbal statement made in front of witnesses.

However, just because your will is recognized in Florida, does not mean that it doesn’t need a review.

There are distinctions in Florida law that may make certain provisions invalid or change their meaning. In one well-known case, a will was missing one sentence—known as a “residual clause,” a catch-all that distributes assets that are otherwise not specified. The maker of the will wanted everything to go to her brother. However, without that one clause, property acquired after the will was created was not included. The court determined that the property that was acquired after the will was created, would go to other relatives, despite the wishes of the decedent.

Little details mean a lot when it comes to estate plans.

It’s important to ensure that the last will and testament properly expresses intentions under the laws of your new home state. As you review or begin the process, this might be the time to speak with your estate planning attorney about whether any trusts are applicable to your estate. A revocable living trust, for example, would avoid the assets placed in the trust having to go through probate.

This is also the time to review your Durable Power of Attorney, designation of a Health Care Surrogate, Living Will and nomination of a pre-need Guardian.

Estate planning gives peace of mind, knowing that the legal side of your life is all taken care of. It avoids stress and unnecessary costs and delays to your family. It should be reviewed and updated, if needed, at big events in your life, including a relocation, the sale or purchase of a home or when you retire.

Reference: Boca Newspaper (May 1, 2019) “I’ve Relocated To Florida…Should I Update My Estate Plan?”

Singles Need Two Key Estate Planning Documents

eA woman is shopping, when suddenly she is struck by abdominal pains that are so severe she passes out in the store. When she comes to, an EMT is asking her questions. One of those questions is “Do you have a living will or a medical power of attorney?” That was a wake-up call for her that she needs these key estate planning documents, and should be for other singles too, says Morningstar in the article “2 Estate-Planning Tools That Singles Should Consider.” 

Key estate planning documents
There are two key estate planning documents that all single adults need to have.

People who are unmarried and don’t have children often think they don’t need any kind of estate plan. However, the truth is, they do. For singles, power of attorney, medical power of attorney and a living will are especially important.

What is a Living Will? A living will is sometimes called an advance medical directive. It details your wishes, if you are in a situation where life-sustaining treatment is the only way to keep you alive. Would you want to remain on a respirator, have a feeding tube or have other extreme measures used? It’s not pleasant to think about. However, this is an opportunity for you to make this decision on your own behalf, for a possible future date when you won’t be able to convey your wishes. Some people want to stay alive, no matter what. Others would prefer to turn off any artificial means of life support and be allowed to pass away naturally.

Having a Living Will spares your loved ones from having to guess about what you might want to happen.

A Durable Power of Attorney for Healthcare? This is a legal estate planning document that gives a person you name the ability to make healthcare decisions for you, if you can’t speak for yourself. To some people, this matters more than a living will, because the durable power of attorney for healthcare can convey your wishes in situations, where you are not terminally ill, but incapacitated.

Find someone you trust, whose judgment you respect and have a long, serious talk with them. Talk about your preferences for blood transfusions, organ transplants, disclosure about your medical records and more. Doctors have a hard time when a group of relatives and friends are all trying to help, if there is no one person who has been named as your power of attorney for healthcare.

What else does a single person need? The documents listed above are just part of an estate plan, not the whole thing. A single person should have a will, so that they can determine who they want to receive their assets upon death. They should also check on their beneficiary designations from time to time, so any insurance policies, investment accounts, retirement accounts, and any other assets that allow beneficiary designations are going to the correct person. Some accounts also do not permit non-spouses as beneficiaries. As unfair as this is, it does exist.

The takeaway here is that to protect yourself in a health care emergency situation, you should have these key estate planning documents in place. Speak with an experienced estate planning attorney. This is not a complicated matter, but it is an important one.

Reference: Morningstar (April 23, 2019) “2 Estate-Planning Tools That Singles Should Consider”

Why Do Singles Need These Two Estate Planning Tools?

Morningstar’s article, “2 Estate-Planning Tools That Singles Should Consider” explains that a living will, or advance medical directive, is a legal document that details your wishes for life-sustaining treatment. It’s a document that you sign when you’re of sound mind and says you want to be removed from life supporting measures, if you become terminally ill and incapacitated.

Powers of Attorney for healthcare and finances are often overlooked as critical estate planning documents for singles.

If you’re on life support with no chance of getting better, you’d choose to have your family avoid the expense and stress of keeping you alive artificially.

Like a living will, a durable power of attorney for healthcare is a legal document that names an agent to make healthcare decisions for you, if you are unable to make them yourself.

A durable power of attorney for healthcare can provide your instructions in circumstances in which you’re not necessarily terminally ill, but you are incapacitated.

When selecting an agent, find a person you trust enough to act on your behalf when you’re unable. Let this person know exactly how you feel about blood transfusions, organ transplants, disclosure of your medical information and other sensitive topics that may arise, if you’re incapacitated.

A power of attorney eliminates any confusion, especially if this person is someone other than your spouse. Your doctors will know exactly who the decision-maker is among your relatives and friends.

These two documents aren’t all that comprise a fully comprehensive estate plan. Singles should regularly make certain that the beneficiary designations on their checking and retirement accounts are up to date.

You should also consider your life insurance needs, especially if you have children and/or a mortgage.

It is also important to understand that a living will doesn’t address the issues of a will. A will ensures that your property is distributed after your death, in accordance with your wishes. Ask for help from an experienced estate planning attorney.

These two documents—a living will and a durable power of attorney—can help ensure that in a healthcare emergency, any medical and financial decisions made on your behalf are in accordance with what you really want. Speak with to an estate-planning attorney in your state to get definitive answers to your questions.

Reference: Morningstar (April 23, 2019) “2 Estate-Planning Tools That Singles Should Consider”

What Are the Six Most Frequent Estate Planning Mistakes?

It’s a grim topic, but it is an important one. Without a legal will in place, your loved ones may spend years stuck in court proceedings and spend a lot on legal fees and court costs to settle your estate.

The San Diego Tribune writes in its recent article, 6 estate-planning mistakes to avoid, that without a plan, everything is more stressful and expensive. Let’s look at the top six estate-planning mistakes that people need to avoid:

Estate Planning Mistakes
Estate planning is tricky to get right without the help of a trained professional.

No Plan. Regardless of your age or financial status, it’s critical to have a basic estate plan. This includes crafting powers of attorney for both healthcare and finances and a living will.

No Discussion. Once you create your plan, tell your family. Those you’ve named to take care of you, need to know what you’ve decided and where to find your plan.

Focusing Only on Taxes. Estate planning can be much more than just about tax avoidance. There are many other reasons to create an estate plan that have nothing to do with taxes, like charitable giving, special needs planning for a family member, succession planning in the event of incapacity and planning for children of a prior marriage, to name just a few.

Leaving Assets Directly to Children. If you leave assets directly to your children or grandchildren under age 18, it can cause unintended custodian or guardianship issues. Minors can’t own legal property, so a guardian will be appointed by the court to manage the property for them, until they reach age 18. If you don’t name a guardian, the court will appoint one for you and that person may have very different ideas about how your children should be raised.

Making Mistakes with Ownership and Property Titles. With many blended families, you may want to preserve assets from an inheritance as your own separate property or from a prior marriage for your children. There are many tax consequences and control issues in blended families about which you may not be aware.

Messing Up Your Trust. Many people don’t properly fund or update their trusts. An unfunded trust doesn’t do anyone any good. Assets that aren’t titled in the name of the trust don’t avoid probate.

Finally, the easiest way to avoid these frequent estate planning mistakes is by reviewing your estate plan regularly, as your circumstances change.

Reference: San Diego Tribune (April 18, 2019) “6 estate-planning mistakes to avoid”

Smart Women Protect Themselves with Estate Planning

The reason to have an estate plan is two-fold: to protect yourself, while you are living and to protect those you love, after you have passed. If you have an estate plan, says the Boca Newspaper in the article titled “Smart Tips for Women: Estate Planning,” your wishes for the distribution of your assets are more likely to be carried out, tax liabilities can be minimized and your loved ones will not be faced with an extended and expensive process of settling your estate.

Smart Women have Estate Plans
Smart women protect themselves and their families by making sure they have an estate plan in place.

Here are some action items every woman should consider when putting your estate plan in place:

If you have an estate plan but aren’t really sure what’s in it, it’s time to get those questions answered. Make sure that you understand everything. Don’t be intimidated by the legal language: ask questions and keep asking until you fully understand the documents.

If you have not reviewed your estate plan in three or four years, it’s time for a review. There have been new tax laws that may have changed the outcomes from your estate plan. Anytime there is a big change in the law or in your life, it’s time for a review. Triggering events include births, deaths, marriages, and divorces, purchases of a home or a business or a major change in financial status, good or bad.

If you don’t have an estate plan, stop postponing and make an appointment with an estate planning attorney, as soon as possible.

Your estate plan should include advance directives, including a Durable Power of Attorney, Health Care Surrogate (and HIPAA Release), and a Living Will. You may not be capable of executing these documents during a health emergency and having them in place will make it possible for those you name to make decisions on your behalf.

Anyone who is over the age of 18, needs to have these same documents in place. Parents do not have a legal right to make any decisions or obtain medical information about their children, or even review their healthcare documents, once they celebrate their 18th birthday.

Make a list of your trusted professionals: your estate planning attorney, CPA, financial advisor, your insurance agent and anyone else your executor will need to contact.

Tell your family where this list is located. Don’t ask them to go on a scavenger hunt, while they are grieving your loss.

List all your assets. You don’t have to include every single item you own, but you large and expensive items, as well as family heirlooms and those items with sentimental value.  You should include where they are located, account numbers, contact phone numbers, etc. Tell your family that this list exists and where to find it.

If you have assets with primary beneficiaries, make sure that they also have contingent beneficiaries.

If you have assets from a first marriage and remarry, be smart and have a prenuptial agreement drafted that aligns with a new estate plan.

If you have children and assets from a first marriage and want to make sure that they continue to be your heirs, work with an estate planning attorney to determine the best way to make this happen. You may need a will, or you may simply need to have your children become the primary beneficiaries on certain accounts. A trust may be needed. Your estate planning attorney will know the best strategy for your situation.

If you own a business, make sure you have a plan for what will happen to that business, if you become incapacitated or die unexpectedly. Who will run the business, who will own it and should it be sold? Consider what you’d like to happen for long-standing employees and clients.

Smart women make plans for themselves and their loved ones. An estate planning attorney will be able to help you navigate through an estate plan. Remember that an estate plan needs upkeep on a regular basis.

Reference: Boca Newspaper (March 4, 2019) “Smart Tips for Women: Estate Planning”

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