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Category: Medical Directives

Is it better to have a Living Will or a Living Trust?

Is it Better to Have a Living Will or a Living Trust?

A living will and a living trust are part of an estate plan that achieves the goals of protecting you while you are living and your loved ones when you have passed. Is it better to have a Living Will or a Living Trust? You may need both, but before you make any decision, first know what they are, says the article “Living Will vs. Living Trust” from Yahoo! Finance.

A living will is a legal document used in healthcare decision making. It offers a way for you to provide in exact terms what kind of medical care and treatment you want to receive in end-of-life situations. They are not fun to contemplate, but the alternative is leaving your spouse or children guessing what you would want and living with the consequences. By having a living will prepared properly with your estate planning attorney (to ensure that it is valid), you tell your loved ones what you want. They will not be left guessing or fighting among each other. The treating physicians will also know what you want.

This is different from an advance healthcare directive, which also deals with medical situation but from a different angle. The advance healthcare directive is used to name an agent who will act on your behalf to make medical decisions. It is used in situations other than end-of-life care. Let’s say you are incapacitated by an illness. That person is authorized to make medical care decisions on your behalf.

A trust is a legal entity that lets you transfer assets to the ownership of a trustee and has little to do with your healthcare. The trustee is a person named to be in charge of the trust. He is considered a fiduciary, a legal standard requiring him to put the interest of the trust above his own. A living trust is one of many different kinds of trusts.

Living trusts are also known as “inter vivos” trusts and take effect while you are alive. You (the grantor) are permitted to serve as your own trustee. You should name one or more successor trustees, who can take over just in case something happens to you. You can also name someone else to be the trustee. That is usually a trusted person or a financial institution.

Living trusts may be revocable or irrevocable. When they are revocable, assets transferred to the trust can be moved in and out of the trust as you like, as long as you are alive. You can add assets, remove assets, change the named beneficiaries, or even change the terms of how the assets are managed.

An irrevocable trust is just as it sounds—once it’s created and funded, those assets are permanently inside the trust. There are some states that permit “decanting” of a trust, that is, moving the assets inside a trust to another trust. Your estate planning attorney will know if that is an option for you.

So, Is it better to have a Living Will or a Living Trust? You probably need both. The living will deals with your healthcare, while the living trust is all about your assets. Do you need a trust? Most estates will benefit from some kind of a trust. Depending on the type of trust, it may let you protect assets against creditors, give you control postmortem of how and when (or if!) your beneficiaries receive their inheritance, and removes the assets from your taxable estate. Both are important tools in a comprehensive estate plan.

If you would like to learn more about Living Wills and Living Trusts, please visit our previous posts. 

Reference: Yahoo! Finance (Feb. 18, 2021) “Living Will vs. Living Trust”

 

Preparing to meet with an estate planning attorney

Preparing to meet with an Estate Planning Attorney

Preparing to meet with an estate planning attorney for the first time is an opportunity to get organized and think about your wishes for the future. If you meet with your accountant every year to prepare tax returns, this may be a familiar process. It’s a chance to step away from day-to-day activities and focus on your life, as described in a recent article “10 Items to Consider Before Meeting Your Attorney” from The National Law Journal.

Minor Children Need Guardians and Conservators. In most states, families with minor children need a last will to designate one or more guardians to raise the children in the event both parents die. A successor should be named in case the first named guardian is unable or unwilling to serve. Discuss your decision with the people you are naming; don’t leave this as a surprise. Choosing these people is a hard decision. However, don’t let it be a reason to delay creating your estate plan. It’s better that you name a guardian, rather than let the court make that decision. Your estate planning attorney will be able to guide you through this decision.

Agents, Trustees, and Power of Attorney. With a Durable Power of Attorney, your assets can be managed by a named agent, if you become incapacitated. The person who manages your estate after death is the executor. They are named in your last will. If you have trusts, the documents that create the trust also name the trustees. It is possible for one person to act as a fiduciary for all of these roles, although the tasks can be divided.

Living Will and Patient Advocate Designation. If you are incapacitated, a Patient Advocate can make medical decisions on your behalf, including following the instructions of your Living Will.

Personal Property. Any items of personal property, whether their value is sentimental or monetary, should be specified in the will. A list of items and who you want to receive what, may spare your heirs from squabbles over your personal effects, large or small. If you own a business or real estate, they also need to be addressed in your will.

Charitable Donations. If you are charitably minded, your will is one way to make bequests and build a lasting legacy. Charitable donations can also be made to gain tax benefits for heirs.

Beneficiary Distributions. The beneficiary designation is the unsung hero of the estate plan. By managing beneficiary designations while you are living—updating beneficiary designations, assigning beneficiary designations to all accounts possible—you take assets out of your probate estate and smooth the asset distribution process. However, there are some wrinkles to consider.

Minor children may not receive assets until they become of age—18 in most cases. Do you want your children (or nieces or grandchildren) to receive an inheritance, while they are still in their teens? Proper estate planning includes trusts created, so a responsible adult can manage the trust on their behalf. Your trust can also be structured so the money may only be used for college expenses, or when the children reach certain ages. An estate planning attorney will assist you in how best to structure a trust.

Surviving Pets. You can plan for your pet’s care, if you pass away or become incapacitated before they die. Most states permit the creation of a pet trust, an enforceable means of providing assets to be used for the care and well-being of your pet.

Preparing to meet with an estate planning attorney can be a daunting task, but addressing these issues will give you a head start. Your estate planning attorney will be able to provide you with a list of the documents she will need to get started on your estate plan, but these are the major issues that you will be discussing at your first meeting.

If you would like to learn more about preparing for estate planning, please visit our previous posts. 

Reference: The National Law Journal (Feb. 23, 2021) “10 Items to Consider Before Meeting Your Attorney”

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update your estate plan if you move to a new state

Update Your Estate Plan If You Move to a New State

You should update your estate plan if you move to a new state. The U.S. Constitution requires states to give “full faith and credit” to the laws of other states. As a result, your will, trust, power of attorney, and health care proxy executed in one state should be honored in every other state.

Although that’s the way it should work, the practical realities are different and depend on the document, says Wealth Advisor’s recent article entitled “Moving to a New State? 

Your last will should still be legally valid in the new state. However, the new state may have different probate laws that make certain provisions of the will invalid. This can also happen with revocable trusts.

However, it’s not as common with powers of attorney and health care directives. These estate planning documents should be honored from state to state, but sometimes banks, medical professionals, and financial and health care institutions will refuse to accept the documents and forms. They may have their own, as is the case frequently with banks.

You should also know that the execution requirements of your estate planning documents may be different, depending on the state.

For example, there are some states that require witnesses on durable powers of attorney, and others that do not. A state that requires witnesses may not allow a power of attorney without witnesses to be used to convey real estate, even though the document is perfectly valid in the state where it was drafted and signed.

With health care proxies, other states may use different terms for the document, such as “durable power of attorney for health care” or “advance directive.”

When you move to a different state, it’s also a smart move to consult with an experienced estate planning attorney to make certain that your estate plan in general is up to date. There are also other changes in circumstances—like a change in income or marital status—that can also have an impact on your estate plan. Moreover, there may be practical changes you may want to make. For example, you may want to change your trustee or agent under a power of attorney based on which family members will be closer in proximity.

For all these reasons, it’s wise to update your estate plan if you move to a new state. You have an experienced estate planning attorney in your new home state review your estate planning documents. If you would like to learn more about updating your plans to fit new life situations, please visit our previous posts. 

Reference: Wealth Advisor (Jan. 26, 2021) “Moving to a New State? 

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living will is an important part of an estate plan

Living Will is an Important part of an Estate Plan

A living will is an important part of an estate plan. Living wills can be used to detail the type of healthcare you do or don’t want to receive in end-of-life situations, or if you become permanently incapacitated or unconscious. A living will tells your healthcare providers and your family what type of care you prefer in these situations, explains Yahoo Finance’s recent article entitled “How to Make a Living Will.” These instructions may address topics, such as resuscitation, life support and pain management. If you don’t want to be on life support in a vegetative state, you can state that in your living will.

A living will can be part of an advance healthcare directive that also includes a healthcare power of attorney. This lets your chosen healthcare proxy make medical decisions on your behalf, when you’re unable. A living will typically only applies to situations where you’re close to death or you’re permanently incapacitated; an advance directive can cover temporary incapacitation.

Ask an experienced estate planning attorney or elder care lawyer about the technical aspects of how to make a living will and include it in your estate plan. You should consider what to include. Every state is different, so your attorney will help you with the specifics. However,  you’ll generally need to leave instructions on the following:

  • Life-prolonging care, like blood transfusions, resuscitation, or use of a respirator;
  • Intravenous feeding if you are incapacitated and cannot feed yourself; and
  • Palliative care can be used to manage pain, if you decide to stop other treatments.

You will want to be as thorough and specific as possible with your wishes, so there is no confusion or stress for your family when or if the day arrives. You next want to communicate these wishes to your loved ones. You should also give copies of your living will to your doctor. If you’re drafting a living will as part of an advance healthcare directive in your estate plan, be certain that you get a copy to your healthcare proxy.

Review your living well regularly to make sure it’s still accurate because you may change your mind about the type of care you’d like to receive.

Ask your attorney to help you draft a living will along with a healthcare power of attorney, so all of the bases are covered as far as healthcare decision-making. When choosing a healthcare proxy, select a person on whom you can rely, to execute your wishes.

A living will is an important part of an estate plan and prepares your family for your death. If you would like to learn more about end-of-life care, please visit our previous posts.

Reference: Yahoo Finance (Feb. 18, 2021) “How to Make a Living Will”

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charitable contribution deductions from an estate

Understanding the responsibilities of the conservator

If you have been named a conservator, or have been approached by a family member about the role, it is vital that you are understanding the responsibilities of the conservator. A conservator is appointed by a judge. This person handles the estate of an incapacitated adult, as well as their finances, their basic affairs and everyday care. Administrative matters such as Medicare, insurance, pensions, and medical coverage are all also managed by the conservator. The conservator must keep meticulous records that are subject to review by the judge.

The Advocate’s recent article entitled “Alzheimer’s Q&A: What is adult guardianship?” explains that a conservatorship typically lasts as long as the individual lives. The conservator may change because of death, relocation, or an inability to manage the conservator duties and responsibilities. A judge also has the power to replace the conservator, if he or she is repeatedly making poor decisions or neglecting required responsibilities.

A conservator can be wise in some situations because it lets family members know that someone is making the decisions. It also provides clear legal authority to deal with third parties. There is also a process in which a judge will approve any major decisions. However, appointing a conservator can be expensive. An experienced estate planning or elder law attorney must complete court paperwork and attend court hearings. A conservatorship can also be time-consuming due to the required ongoing paperwork.

A big question is when it is appropriate to seek conservatorship. If the individual has become mentally or physically incapable of making important decisions for himself or herself, then it would be smart to have a court-appointed guardian. Moreover, if the person does not already have legal documents in place, like a living will or power of attorney, then the conservatorship would benefit in covering decisions about personal and financial matters.

Even if the individual has a power of attorney for both health care and finances, he or she might need a conservator to make decisions about his or her personal life. This can include topics, such as living arrangements and who is allowed to visit. It is not always easy to determine if an individual can make decisions, but a judge understands that a conservator is viable for those with advanced Alzheimer’s or other forms of dementia.

Families that want to set up a conservatorship need to file formal legal papers and participate in a court hearing before a judge. Evidence of the physical and mental condition of the individual requiring conservatorship must be clearly presented. The person who is the subject of the conservatorship has the opportunity to contest it. Ask an experienced estate planning or elder law attorney who specializes in conservatorships to provide you a complete understanding of the responsibilities of the conservator.

If you would like to learn more about conservatorship and guardianship, please visit our previous posts.

Reference: The Advocate (Jan. 25, 2021) “Alzheimer’s Q&A: What is adult guardianship?”

 

be an effective advocate for elderly parents

Be an Effective Advocate for Elderly Parents

Family caregivers must also understand their loved one’s wishes for care and quality of life. They must also be sure those wishes are respected. Further, it means helping them manage financial and legal matters, and making sure they receive appropriate services and treatments when they need them. It is important to understand how to be an effective advocate for elderly parents.

AARP’s recent article entitled “How to Be an Effective Advocate for Aging Parents” says if the thought of being an advocate for others seems overwhelming, take it easy. You probably already have the skills you need to be effective. You may just need to develop and apply them in new ways. AARP gives us the five most important attributes.

  1. Observation. Caregivers can be too busy or tired, to see small changes, but even slightest shifts in a person’s abilities, health, moods, safety needs, or wants may be a sign of a much more serious medical or mental health issue. You should also monitor the services your family member is getting. You can take notes on your observations about your loved one to track any changes over time.
  2. Organization. It’s hard to keep track of every aspect of a caregiving plan, but as an advocate for your elderly parents, you must manage your loved one’s caregiving team. This includes creating task lists and organizing the paperwork associated with health, legal, and financial matters. You’ll need to have easy access to all legal documents, like powers of attorney for finances and health care. If needed, you might take an organizing course or work with a professional organizer. There are also many caregiving apps. You should also, make digital copies of key documents, such as medication lists, medical history, powers of attorney and living wills, so you can access them from anywhere.
  3. Communication. This may be the most important attribute. You need communication for building relationships with other caregivers, family members, attorneys and healthcare professionals. Be prepared for meetings with lawyers, medical professionals and other providers.
  4. Probing. Caregivers need to gather information, so don’t be shy about it. Educate yourself about your loved one’s health conditions, finances and legal affairs. Create a list of questions for conversations with doctors and other professionals.
  5. Tenacity. Facing a dysfunctional and frustrating health care system can be discouraging. You must be tenacious. Here are a few suggestions on how to do that:
  • Set clear goals and focus on the end result you want.
  • Keep company with positive and encouraging people.
  • Heed the advice of experienced caregivers’ stories, so you understand the triumphs and the challenges.
  • Be positive and be resilient.

It is a wise idea to work with an Elder Law attorney that can help you be an effective advocate for elderly parents.

If you would like to learn more about being a caregiver, please visit our previous posts. 

Reference: AARP (Sep. 24, 2020) “How to Be an Effective Advocate for Aging Parents”

 

Social isolation increases elder financial abuse

The Difference between Power of Attorney and Guardianship

The difference between power of attorney and guardianship is in the level of decision-making power, although there are many intricacies specific to each appointment, explains Presswire’s recent article entitled “Power of Attorney and Guardianship of an Elderly Parent.”

The interactions with adult protective services, the probate court, elder law attorneys and healthcare providers can create a huge task for an agent under a power of attorney or court-appointed guardian. Children acting as agents or guardians are surprised about the degree of interference by family members who disagree with decisions.

Doctors and healthcare providers don’t always recognize the decision-making power of an agent or guardian. Guardians or agents may find themselves fighting the healthcare system because of the difference between legal capacity and medical or clinical capacity.

A family caregiver accepts a legal appointment to provide or oversee care. An agent under power of attorney isn’t appointed to do what he or she wishes. The agent must fulfill the wishes of the principal. In addition, court-appointed guardians are required to deliver regular reports to the court detailing the activities they have completed for elderly parents. Both roles must work in the best interest of the parent.

Some popular misperceptions about power of attorney and guardianship of a parent include:

  • An agent under power of attorney can make decisions that go against the wishes of the principal
  • An agent can’t be removed or fired by the principal for abuse
  • Adult protective services assumes control of family matters and gives power to the government; and
  • Guardians have a responsibility to save money for care, so family members can receive an inheritance.

Those who have a financial interest in inheritance can be upset when an agent under a power of attorney or a court-appointed guardian is appointed. Agents and guardians must make sure of the proper care for an elderly parent. A potential inheritance may be totally spent over time on care.

In truth, the objective isn’t to conserve money for family inheritances, if saving money means that a parent’s care will be in jeopardy.

Adult protective services workers will also look into cases to make certain that vulnerable elderly persons are protected—including being protected from irresponsible family members. In addition, a family member serving as an agent or family court-appointed guardian can be removed, if actions are harmful.

Agents under a medical power of attorney and court-appointed guardians have a duty to go beyond normal efforts in caring for an elderly parent or adult. They must understand the aspects of the health conditions and daily needs of the parent, as well as learning advocacy and other skills to ensure that the care provided is appropriate.

Ask an experienced elder law attorney for help understanding the difference between power of attorney and guardianship. Explain your family’s situation and your need for power of attorney documents with a provision for guardianship. If you would like to learn more about guardianship, please visit our previous posts.

Reference: Presswire (Jan. 14, 2021) “Power of Attorney and Guardianship of an Elderly Parent”

 

steps to take when diagnosed with Alzheimer's?

Steps to Take when Diagnosed with Alzheimer’s

A diagnosis of Alzheimer’s or any serious progressive disease takes some time to absorb. What are the steps to take when diagnosed with Alzheimer’s? During the days and weeks after the diagnosis, it is important to take quick steps to protect the person’s health as well as their legal and financial lives, advises the recent article “What to do after an Alzheimer’s disease diagnosis?” from The Indiana Lawyer.

Here are the legal steps that need to be taken when diagnosed with Alzheimer’s, before the person is too incapacitated to legally conduct their own affairs:

General Durable Power of Attorney—A person needs to be appointed to perform legal and financial duties when the time comes. This can be a family member, trusted friend or a professional.

Health Care Power of Attorney—A person must be entrusted with making health care decisions, when the patient is no longer able to communicate their wishes.

HIPAA Authorization—Without this document, medical care providers will not be able to discuss the person’s illness or share reports and test results. An authorized person will be able to speak with doctors, pick up prescriptions and obtain medical reports. It is not a decision-making authorization, however.

Living Will—The living will explains wishes for end-of-life medical care, including whether to prolong life using artificial means.

Funeral Plans—Some states permit the creation of a legally enforceable document stating wishes for funerals, burials or cremation and memorial services. If a legal document is not permitted, then it is a kindness to survivors to state wishes, and be as specific as possible, to alleviate the family’s stress about what their loved one would have wanted.

Medicaid Planning—Care for Alzheimer’s and other dementias becomes extremely costly in the late stages. A meeting with an elder law attorney is important to see if the family’s assets can be protected, while obtaining benefits to pay for long-term and dementia care.

After the patient dies, there may be a claim against it from the state to recover Medicaid costs. By law, states must recover assets for long-term care and related drug and hospital benefits. All assets in the recipient’s probate estate are subject to recovery, except if surviving spouse, minor children, blind or disabled child is living or where recovery would cause hardship.

These are just a few steps to take when diagnosed with Alzheimer’s. With good planning and the help of an experienced elder law attorney, the family may be able to mitigate claims by the government against the estate.

If you would like to learn more about Alzheimer’s disease, and other forms of dementia, please visit our previous posts.

Reference: The Indiana Lawyer (Jan. 6, 2020) “What to do after an Alzheimer’s disease diagnosis?”

 

charitable contribution deductions from an estate

What are the Steps to Take when Dementia Begins

Covid-19 has made travelling more difficult, so holiday visits this year may not be the same triggering event they were in the past. However, even an online holiday visit can reveal a great deal of change, reports a recent article “Elder Care: When the children don’t notice” from The Sentinel. What are the steps to take when dementia begins?

An elderly spouse caring for another elderly spouse may not notice that their loved one’s needs have increased. Caregiving may have started as the spouse needing a reminder to take a shower on a regular basis. As dementia begins, the spouse may not be able to shower by themselves.

This quickly becomes exhausting and unsafe. If one spouse suddenly does not recognize the other and perceives their spouse as an intruder, a dangerous situation may occur, repeatedly. It’s time to discuss this with the children, if they are not available to notice this decline in person.

People are often reluctant to tell out-of-town children about this problem because they don’t want the added stress of having the children come to the rescue and making decisions that may be overwhelming. The children may also think they can come out for a visit and fix everything in the space of a few days. It’s not an easy situation for anyone.

A first step to take, especially when early-stage dementia begins, is to get an estate plan in place immediately, while the person still has the capacity to sign legal documents. Anyone who is old enough for Medicare (and anyone else, for that matter) needs to have an updated last will and testament, durable financial power of attorney for financial matters and a health care power of attorney, including a living will.

The financial power of attorney document will be the most practical because the family will be able to access financial accounts and make decisions without having to petition the court to appoint a guardian. A professional guardian might be appointed, which is extremely expensive and there have been situations where the professional guardian makes decisions the family does not want. A family member who can act under the power of attorney may be a much better solution for all concerned.

Speak with your estate planning attorney to be sure the POA permits wealth preservation. If it contains the phrase “limited gifting,” you want to discuss this and likely change it. You should also be sure that there is a secondary and even a third backup agent, in case there are any issues with the people named as POA.

Spouses typically have wills that leave everything to their spouse, and then equally among their children, if the spouse dies first. However, what if your spouse is in a nursing home when you die? The cost of nursing home care can quickly exhaust all funds. If any family member is receiving government benefits and then inherits directly, they could lose important government benefits. These are all matters to discuss with your estate planning attorney.

Have a conversation with your children about your healthcare advance directive. It’s not an easy conversation, but when the children know what their parents want concerning end-of-life care decisions, it relieves an enormous burden for all. Get specific—do you want a feeding tube to keep you alive? What about if the only thing keeping them alive is a heart-lung machine? Better to have these conversations now, than in the hospital when emotions are running high.

Another important step to take when dementia begins is the HIPAA release. This permits healthcare providers to discuss and share information about your loved one’s medical care. Without it, even close family members are not legally permitted to be part of the conversation about health care, lab test results, etc.

If you would like to learn more about dementia and other elder care issues, please visit our previous posts. 

Reference: The Sentinel (Dec. 11, 2020) “Elder Care: When the children don’t notice”

 

understanding what legacy planning means

Understanding What Legacy Planning Means

Asset distribution is how many estate plans begin, but we can create legacies for generations to come through our estate planning, says Kiplinger in the article “Legacy Planning: Create a Lasting Legacy.” You may not realize it until you sit down to prepare an estate plan, or even until you prepare a second estate plan. Your life has been devoted to building wealth and now it’s time to plan for the next generation. This is when estate planning becomes legacy planning. Let’s start by understanding what legacy planning means.

Why is Legacy Planning Important?

If the goal is to leave wealth to children, the plan may be simply to bequeath assets.

However, if children are not good at handling money or if there is a concern about a marriage’s longevity, then you’ll want to look past a simple transfer of assets on death. For some families, a concern is leaving too much wealth to children, undermining the parent’s life of work and respect for their accomplishments. Understanding legacy planning addresses these and other serious issues.

Which Documents are Necessary for Estate Planning?

Most people need the following documents:

Revocable Living Trust, or RLT. The person who creates this trust maintains full control of assets that are titled to the trust while they are living, and then directs how assets are to be passed on when one spouse dies and then after both spouses die.

Pour-Over Wills. Used in conjunction with a RLT, these work to direct assets to the RLT.

Durable Power of Attorney. These documents are part of planning for incapacity. They designate a person who will make financial and/or legal decisions for you, if you cannot do so.

Health Care Directives. Note that these have different names and details, depending on the state. For most people, they consist of a Living Will and a Durable Power of Attorney for Health Care. Together, these two documents provide a platform for you to share wishes about medical care. The Living Will gives guidance about your wishes, if you become too sick to communicate, including your wishes on pain medication, artificial feeding and hydration and resuscitation. The Durable Power of Attorney (sometimes called a Health Care Proxy) names a person who can make health care decisions, if you can’t do so for yourself.

How Do I Leave a Lasting Legacy?

Many people believe that their children should be the only beneficiaries of their wealth. However, for others, even those with modest estates, supporting an organization that has meaning to them through a gift in their will is just as important as leaving money to children and grandchildren.

Here are a few questions to consider when thinking about legacy planning:

  • How much wealth is “enough” for heirs?
  • At what age should money be transferred to heirs?
  • Should incentive milestones be created, like completing college, attaining higher education goals, or staying sober?

If assets are left directly to children, there is always the risk that they may lose the wealth. Sometimes that is not the child’s fault, but this can be prevented with good planning. Inherited assets can be protected in trusts, which can be created to protect wealth and provide for professional management.

Do Trusts Avoid Estate Taxes?

Now that you have an understanding of what legacy planning means, another important consideration is minimizing tax liabilities. Not every estate plan is designed with taxes in mind, so you’ll want to discuss this with your estate planning attorney.  The issue of taxes can become more complex, if the estate includes illiquid assets, including real estate or a family owned business. If you are interested in learning more about advanced planning, please visit our previous posts. 

Reference: Kiplinger (Oct. 30, 2020) “Legacy Planning: Create a Lasting Legacy”