Why A Living Will Might Be Part of Your Estate Plan
Good Planning Includes a Living Will

Why A Living Will Might Be Part of Your Estate Plan

There are several different legal documents that your estate planning attorney can prepare for you to direct how you want health care to be provided. The Medical Advance Directive often refers to a Living Will, but the category also includes medical durable powers of attorney, cardiopulmonary resuscitation (CPR) directives, Do Not Resuscitate (DNR) orders, Medical Orders for Scope of Treatment (MOST) and other directives regarding your medical care in the event you have a medical crisis, a terminal medical condition and just before or after your passing. The article “About the Law” from The Villager describes these important issues in detail.

In some states, a Living Will is known as an Advanced Directive for Medical/Surgical Treatment. This document tells medical professionals how you want to be treated, if you are suffering from a terminal condition that is neither curable nor reversible, or if you are in a coma, also known as a “persistent vegetative state” and cannot speak for yourself. It’s referred to more commonly as a Living Will and is signed with the same type of formality as a Last Will and Testament. Like your will, it must be signed in front of two witnesses and it must be notarized.

The Living Will is used for two situations. One is a terminal condition, where the use of life-saving procedures will only postpone death, but not promote any healing that would lead to a recovery. The second is in a persistent vegetative state, which must be determined by medical professionals. There are three choices for the family: one is to forgo life-sustaining treatment and let the person die. The second is to accept life-sustaining treatment, but only for a limited period of time. Often this is to allow family members to gather to say their farewells. The third is to continue life-sustaining treatment.

A person may express their wishes for their care and also give permission to certain persons to talk with their doctor. This is made necessary, due to the HIPAA act. Otherwise, the doctor would legally not be permitted to discuss the patient’s care with unauthorized people.

As long as you are able to make your own medical decisions, you can determine what treatments to receive, or which treatments you do not wish to receive. The goal of the Living Will is to allow you to express your wishes, if you have lost the ability to communicate.

Other estate planning documents that you’ll need are a will, to distribute your property, a financial or general power of attorney, so that someone you name can make decisions and take actions on your financial affairs and, depending upon your situation, a trust.

Because the laws governing living wills and estate planning are set by your state, you’ll want to speak with an estate planning attorney in your community. They’ll help you determine how you want your medical care to proceed, guide you in clarifying your wishes for your family and create the necessary legal documents to fulfill your wishes.

Learn about the importance of a living will.

Reference: The Village (July 3, 2019) “About the Law”

Prior Planning With a Will Always a Better Alternative
Prior Planning With a Will

Prior Planning With a Will 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.

Learn the importance of having a last will and testament.

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

Why You Need a Power of Attorney in Your Estate Plan
A Good Estate Plan Includes a Power of Attorney

Why You Need a Power of Attorney in Your Estate Plan

A power of attorney is an important legal document in your estate plan that allows a person, known as the principal, to designate a person of their choice to become their agent, acting on their behalf. This is usually done when the principal is unable to manage their financial affairs due to disability, illness or incapacity. It must be done while the principal is still competent, notes Delco Times in the article “What’s the difference between guardianship and power of attorney?” There are also instances when power of attorney is used when the principal is unable to conduct their own affairs, because they are traveling or are deployed overseas. A good estate plan includes more than just a will. A power of attorney is an important part.

Related documents are the health care power of attorney and the durable power of attorney. A durable financial power of attorney is a document where the principal designates the powers that the agent may exercise over their finances. The powers granted by this document can be used by the agent, regardless of the principal’s capacity or disability.

The principal has the option to grant very broad authority to their agent. For instance, the principal could give their agent the authority to gift all their assets, while they are still living. That’s why it is very important for the specific provisions in the power of attorney to be carefully reviewed and tailored to the principal’s wishes. There are risks in naming an agent, since they are able to exercise complete control over the principal’s assets. The agent must be 100% trustworthy.

A health care power of attorney allows an agent to make decisions about the principal’s health. Note that this document is operative only when a copy is provided to the attending physician, and the physician determines that the principal is incompetent.

Both health care power of attorney and financial power of attorney may be revoked by the principal at any time and for any reason.

If the principal has not had these documents prepared in advance and then becomes incompetent by reason of injury, illness, or mental health issues, they may not have the legal right to sign the power of attorney. When this happens, it is necessary for a guardianship proceeding to occur, so that other people may be named to take charge of the person’s financial and health affairs. Advance planning is always preferred.

If an individual is born with a disability that impacts their capacity and upon attaining legal age, does not have the capacity to sign a power of attorney, then a guardianship proceeding will be necessary. The court must determine if the person is truly incapacitated and if there might be an alternative to appointing a guardian. Once the guardian is appointed, the principal no longer has the legal right to make decisions on their own behalf.

A guardianship is a much more restrictive tool than a power of attorney. For one thing, the power of attorney generally does not need the involvement of the court. There is always the possibility that a guardian is appointed who does not know the family or the individual. A durable power of attorney allows a person to appoint someone they know and trust to help them and their family, if and when they become incapacitated.

Speak with your estate planning attorney about how power of attorney works, and when guardianship issues might arise. Being prepared in advance by having the right documents in place, is always better than having the family going to court and hoping that the right decisions are made.

See how a durable power of attorney is a critical piece of a good estate plan.

Reference: Delco Times (May 8, 2019) “What’s the difference between guardianship and power of attorney?”