Carlsbad CA Estate Planning

Still Procrastinating about Your Estate Plan?

 

“Without an estate plan in place, clients will be reliant on state laws and probate courts to appoint individuals who will be responsible for financial affairs and health-care decisions, in the case of illness and ultimately the transfer of assets upon death.”

 

The continuing escalation of the COVID-19 pandemic has forced many people to finalize estate planning documents, even as their estate planning attorneys are working from home. People are coming to terms with the stark reality: they could be struck by the disease and need to have a plan in place, reports the article “Estate Planning In The Age Of Covid” from Financial Advisor.

Everyone should review their estate planning documents, including their wills, trusts and gifting techniques, to ensure that they are in line with their goals and the numerous tax law changes that have occurred in the last six months. The review of these estate planning documents is especially critical during these unpredictable times.

Here are the documents that may need to be updated:

Power of Attorney—This legal document gives a person you name the authority to handle financial affairs and protect property by acting on your behalf, if you become incapacitated.  Some of the typical tasks of your “agent” are paying bills, writing checks, selling or purchasing assets or signing tax returns.

You may name any competent adult you like. However, be certain to choose someone trusted who will put your interests above theirs. This person should possess common sense, ethics and financial acumen. Someone who lives near you, will be able to handle matters more expeditiously. Someone who is far away, may not be as effective. You should also name a back-up or secondary agent.

With no power of attorney, no one will be authorized to act on your behalf and your family will need to have the court appoint a conservator, which will take time and money.

Health-Care Proxy—This legal document gives an agent authority to make health-care decisions on your behalf, if you are unable to do so. Without one, the family of anyone over the age of 18 will need to go to court and have a guardian appointed.

Last Will and Testament—Your last will is the legal document that gives directions to how you want your property to be distributed after you die. It is used to appoint an executor to oversee the distribution of your assets. For parents of minor children, this is the document used to name a guardian to raise your children. If you don’t have a last will, the court will choose who will raise your child, who will distribute your assets and who will oversee your estate. It is much better to handle this in advance, so you are in control of these important decisions.

Living Trust—A revocable trust is a legal contract that creates an entity to hold title to your assets. As the grantor or creator of the trust, you can change it at any time. You can also set it to outlive you. If you become incapacitated, a successor trustee then steps in and manages your affairs without any court intervention. A trust also gives you privacy, since it avoids the probate process.

There are many estate planning tools that may be used to pass wealth to the next generation, minimize tax, and ensure that your legacy continues, even during these unprecedented times.

Reference: Financial Advisor (June 16, 2020) “Estate Planning In The Age Of Covid”

Why You Need an Advance Directive Right Now

“COVID-19 is quickly becoming the leading cause of death in the United States. As of today, Indiana has over 37,000 cases of COVID-19 and over 2,100 deaths. That is why articulating your wishes regarding end-of-life health care, is more important than ever.”

The number of Americans who have died in the last few months because of COVID-19 is staggering, reports Inside Indiana Business in an article that advises readers to “Get Your Advance Directives in Place Now.” Just talking with family members about your wishes is not enough. You’ll need to put the proper legal documents in place. It’s not that hard, and it is necessary.

Only one in three Americans has completed any kind of advance directive. Many younger adults don’t feel the need to complete these documents, but there have been many examples that prove this is the wrong approach. Both Terri Schiavo and Karen Ann Quinlan were only in their twenties when they were not able to make their wishes known. Family members fought in and out of court for years.

The clinical realities of COVID-19 make it hard for healthcare workers to determine their patient’s wishes. Visitors are not permitted, and staff members are overwhelmed with patients. COVID-19 respiratory symptoms come on rapidly in many cases, making it impossible to convey end-of-life wishes.

Advance directives are the written instructions regarding health care decisions, if you are not able to communicate your wishes. They must be in compliance with your state’s laws. The most common types of advance care directives are the durable power of attorney for health care and the living will.

A durable power of attorney for health care names a person, usually a spouse or family member, to be a health care agent. You may also name alternative agents. This person will be able to make decisions about your health care on your behalf, so be sure they know what your wishes are.

A living will is the document that states your wishes about the type of care you do or don’t want to receive. Living wills typically concern treatments like CPR (cardiopulmonary resuscitation), breathing machines (ventilators), dialysis, feeding tubes and certain treatments, like the use of an IV (intravenous, meaning medicine delivered directly into the bloodstream).

Studies show that people who have properly executed advance directives are more likely to get care that reflects their stated preferences.

Traditional documents will cover most health situations. However, the specific symptoms of COVID-19 may require you to reconsider opinions on certain treatments. Many COVID-19 patients need ventilators to breathe and do subsequently recover. If in the past you wanted to refuse being put on a ventilator, this may cause you to reconsider.

Almost all states require notarization and/or witnesses for advance directives and other estate planning documents to be valid. Many states, including Indiana and New York, now allow for remote notarization.

Talk with your estate planning attorney about putting all of your estate planning documents in order.

Reference: Inside Indiana Business (June 8, 2020) “Get Your Advance Directives in Place Now”

College Students Need This Estate Planning Tool

This is an excellent question and it’s one any parent of a child going off to college and, for that matter, the parents of any young adult, should be asking their estate planning attorney. The simple answer, according to the article “Liza Horvath, Senior Advocate: Off to College,” from Monterey Herald: YES!

When college students go to off to a world of dorm living, classes and increased independence, many are on their own for the first time. If they are 18 or older, they are legally considered adults. If they become sick or injured while away, the rules of HIPAA, the Health Insurance Portability and Accountability Act, prohibit anyone from speaking with a doctor, gaining access to medical records or being informed of their status–even their own parents!

If your college admissions package did not include an Advance Health Care Directive and a HIPAA release form giving you permission to speak on behalf of your student, speak to doctors and to be part of any medical decisions. Your estate planning attorney will be able to draft those documents for you.

Make sure that your college-bound student also has a list of who they should contact in an emergency, including cell, home and work numbers and email addresses. This list should include their primary treating physician and a history of their immunizations, chronic conditions, medications and other relevant medical issues.

This information can be stored in the cloud or on their phones. However, if the phone is stolen or lost, so is a lot of sensitive data. Write it down on an old-fashioned piece of paper and keep a hard copy at home and one on your own computer, so it can be easily sent if necessary.

You should also consider having a power of attorney for finances and a directive to the college, so information on your student can be released to you. This will allow you to see the academic records and act on your child’s behalf on any legal matters.

If you have adult children, even those who graduated long ago, you may also to wish to have some of these documents prepared.  

Once you have the proper documents in place, you and your college-bound child student can focus on their new lives, furnishing a dorm room and picking out a new laptop!

Resource: Monterey Herald (July 28, 2018) “Liza Horvath, Senior Advocate: Off to College”

Death Has Changed A Lot

A long time ago, most people passed away in their homes. There were not many hospitals or hospices for people to go to, when they were terminally ill.

There are now many of those places and most people pass away in some sort of facility.

That has been both good and bad.

People generally like that they do not die as young and from as many diseases as people used to, but most people would still rather die in their homes than in a facility, as the Economist reports in "How to have a better death."

In fact, the majority of people are not happy that they cannot choose when and where to die.  People are often given life-saving treatment by doctors that they do not want.

At other times, people with little hope of long term survival are not given the opportunity to choose the timing of their own deaths, which leads them to linger on in pain.

This is the primary reason for the movement to legalize physician-assisted suicide, which is slowly picking up steam, as more and more states consider it.

 Since it will not be an option for everyone for a long time, however, it is important that people take some matters they can control into their own hands.

Everyone should have advanced medical directives, at a minimum, that dictate what procedures doctors can and cannot use to prolong their lives.

Reference: Economist (April 29, 2017) "How to have a better death."

Handling Death in the U.S.

Most of the time, the medical profession treats its patients in keeping with what the patients want. If someone has a broken leg, for example, then doctors set the leg, put a cast on it and let it heal.

That is what people want.

When we get sick, doctors give us the best known treatment for whatever disease we have and everyone is satisfied. However, this does not necessarily hold true when people are at the end of their lives.

What medical professionals do at the end of their patients' lives, is not what studies suggest patients necessarily want, as The New York Times reports in "We're Bad at Death. Can We Talk?"

The disconnect at the end of life between doctors and patients, stems from the fact that doctors are trained to do everything they can to sustain life. On the other hand, most patients would prefer to be let go with the least amount of pain and discomfort.

This leads to terminally ill patients being placed in intensive care units on artificial life support, when they would prefer to be placed in palliative care or return home so that they can pass away in peace.

This is something that needs to be addressed by the medical community.

There is something you can do about it for yourself. You can get advanced medical directives to let doctors know what you want, when you are terminally ill.

Reference: New York Times (May 10, 2017) "We're Bad at Death. Can We Talk?"

Sued for Saving Patients

Millions of Americans have completed advanced medical directives such as health care powers of attorney and living wills. More and more people are taking advantage of their legal options to give directives to health care professionals about what treatments they wish to receive and what should be done to preserve their lives.

While this has empowered millions to take charge of their own end of life care, it has not been without conflict as The New York Times reports in "The Patients Were Saved, That's Why the Families Are Suing."

The problems start when the patients' advanced directives are not followed.

Health care workers, who are either unaware of the directives or uncertain about them, have been known to resuscitate patients who do not wish to be, for example. This had led some families to sue for saving the lives of their sick relatives, which is a new position for doctors to be in.  Most suits normally come when they fail to save patients.

It leaves many doctors bewildered, since the Hippocratic Oath does not suggest that saving a patient's life is ever inappropriate.

Americans deserve to have their advanced medical directives respected and followed. Much thought and consideration goes into the decisions people make about their end of life care.

This is an issue that requires further education and making sure that health care workers are made aware of their patients' advanced directives, so they can be sure to follow those directives.

Reference: New York Times (April 10, 2017) "The Patients Were Saved, That's Why the Families Are Suing."

You Need More Than Just a Will

The estate planning news has recently been full of stories about a new survey that showed that 58% of American adults do not have wills. The survey found that it was even worse for parents of minor children. Some 64% of them do not have wills. They have more reasons than anyone else have a will.

This has resulted in many articles about how Americans need to get wills and why their excuses for not getting them are misguided. That is all true.

Americans do need to get wills and they do need to stop making the same excuses, as the AARP points out in "Haven't Done A Will Yet?"

However, estate planning should not stop with just a will.

A will is only one of the documents you can get by going to an experienced estate planning attorney. For example, you might learn that a trust is a better primary estate planning tool for you to use in your particular situation. Through an attorney, you can also get other important legal documents, including a health care power of attorney, a general durable power of attorney and a living will.

These and other legal documents will make sure that your financial affairs are managed properly, if you ever become unable to handle your own affairs.

Do get a will if you do not already have one. However, do not stop there. Make sure that you have a more thorough estate plan by consulting with a qualified estate planning attorney.

Reference: AARP (Feb. 24, 2017) "Haven't Done A Will Yet?"

Estate Planning After High School

Most high school graduates have going to college or getting a job on their minds. They do not often think about possibly passing away and, therefore, creating an estate plan. That is natural as they are young and expect to live long and healthy lives.

Nevertheless, it actually is important that recent graduates get a basic estate plan as the Union Leader points out in "High School Graduates Have Estate Planning Needs."

According to the original article, recent high school graduates should do the following:

• Have Powers of Attorney Drawn Up – If a young person gets in an accident, it is important that someone be legally able to manage both their financial and medical affairs. Once a person turns 18 (in most states) parents can no longer do so without a general durable power of attorney and a health care power of attorney.
• Consider a Living Will – If a young person gets in an accident or gets seriously ill, he or she may not want doctors to take extraordinary steps to lengthen their life when there is no hope for eventual recovery.
• Get a Will – Most younger adults do not need a complicated will. However, a simple will is always advisable as it allows the recent graduate to decide who will get the possessions they do have and who will be in charge of wrapping up their affairs.
• Consider Life Insurance – If a recent graduate plans on getting private student loans, life insurance can be used to pay off the loans should something happen to the graduate.

A qualified estate planning attorney can help prepare an appropriate estate plan for your young adult.

Reference: Union Leader (June 24, 2016) "High School Graduates Have Estate Planning Needs."

Estate Planning Documents You Need

Estate plans come in all shapes and sizes. Some are extraordinarily complex and contain thousands of pages of legal documents. Other estate plans contain only a few basic documents. One of the interesting things about estate plans is the documents that make up the simplest estate plans are also part of the most advanced plans. These documents are the basic framework of estate plans. The Chicago Tribune recently discussed what these basic documents are in “Documents you need before you die or become incapacitated.” They include:

• Will – At its core a will is simply a legal document that declares how a deceased person’s property that is not disposed of by any other legal means should be handled.
• General Durable Power of Attorney – A standard document that allows a person to determine who should handle his or her finances in case of incapacity.
• Health Care Power of Attorney – Similar to the other power of attorney, but it allows for someone else to make medical decisions for an incapacitated person.
• Living Will – Gives prior instructions to medical personnel about what means should be used to prolong a person’s life in the event that the person is terminally ill with no chance of recovery and unable to give instructions at the time.

Meet with an estate planning attorney to determine what additional documents you may need.

Reference: Chicago Tribune (July 25, 2016) “Documents you need before you die or become incapacitated”

College Students and Medical Emergencies

In many families just because a child is an adult and is going to college does not mean the child is independent. The parents still pay for everything. The child can still be on the parents’ health insurance or the parent might still pay the premiums if the child has different medical insurance through the university, for example.

What many parents do not know is that paying those and other similar costs does not actually give them any legal rights to medical information about the child or to make decisions in emergencies as the Yuma Sun discusses in “Estate Planning: Helping your college-age child in a medical emergency.”

Once a person turns 18 and becomes a legal adult, they become just like every other adult. No one can have access to their private medical information or make medical decisions for them unless the person says so. This is even true of parents in an emergency. Not understanding this has led to many families having problems.

Fortunately, the way around this problem is relatively easy if you plan ahead. Talk to your child before he or she goes to college about having an estate planning attorney draw up a health care power of attorney. That will allow the parent, or anyone else the child chooses, to have access to medical information and decision making authority should something happen and the child not be able to express his or her wishes.

Reference: Yuma Sun (July 11, 2016) “Estate Planning: Helping your college-age child in a medical emergency.”