Health Care Documents

Here’s More Insight into Why Estate Planning is Critical

Fox 5 NY says in the article “Why estate planning is important regardless of your age or wealth” that this is a great time to begin talking to your loved ones about estate planning, especially older relatives and parents.

The key to a successful discussion depends upon the right approach.

Try to always make suggestions, rather than demands. One great way to start the conversation with family members is to mention what you’re doing. You might say something like, “I just took care of my own estate planning. Have you done anything? Maybe we should talk about it.” That might get the conversation rolling.

Many people believe that, as they get older, they need a will. However, that’s just one piece of the puzzle: core estate planning includes a will, power of attorney, health care proxy and asset protection.

For most of us, the asset we most want to protect is our home. One of the best ways to do that is through an irrevocable trust. This trust may have tax advantages, could protect your home during a healthcare crisis and protect your home from your children’s creditors.

You also need to find people you trust to help with finances and health care. A power of attorney is a legal document in which you grant a person the authority to handle finances on your behalf.

Similarly, a healthcare proxy is an individual who makes healthcare decisions, if you get sick or are in an accident and can’t make decisions for yourself.

You can use one person to do both or separate individuals for each role. You can opt for a family member or a trusted friend. However, either way, it should probably be a younger person, who won’t be dealing with the same aging issues as you.

You should also note that your will doesn’t cover everything. Another important part of estate planning is making certain that any beneficiaries designated in your retirement plans or life insurance and any additional names on joint bank accounts are current. The beneficiaries you appointed by a designation form will get the money in those accounts, no matter what it says in your will.

If all of this sounds a bit complex, don’t worry because our experienced estate planning and elder law attorneys can help you with all of the forms and all of your questions. Just understand these three things before you visit our elder law firm: your assets, whose names are on the accounts and your wishes.


Reference: Fox 5 NY (December 12, 2018) “Why estate planning is important regardless of your age or wealth”

Proper Estate Planning Can Prevent Family Fights

The (Washington, PA) Observer-Reporter’s recent article, “Improper estate planning can lead to familial conflict” explains that some of your possessions will pass through probate. If you own property in several states, the process could become more difficult for your loved ones. A way to simplify the process for them is by having an updated will.

Research shows that about 60% of U.S. adults don’t have a will.

However, not all of your possessions pass through a will. 401(k)s, life insurance proceeds, pensions, and annuities pass by beneficiary designation.

For instance, even if your will states that all of your possessions are to be split equally between your two children, this may not be what occurs. If your life insurance lists only Bob as the beneficiary, he’ll walk off with 100% of the death benefit. Your younger son Doug will receive only half of the assets that don’t have a beneficiary designation. Assets that pass by designation are not controlled by the will. That is why Bob gets all the money from the insurance. As you can see, it’s vital that you review your accounts’ beneficiary designations regularly, to make certain they’re up to date. Check on them every few years or when there’s a family divorce, birth, or death. Once you’re gone, changes cannot be made.

In addition, comprehensive estate planning should include two powers of attorney (POA). The first POA is to make health decisions. The second POA is to make financial decisions if you don’t have the capacity to do so. Your POA agent has your authority to make decisions, only when you do not have the capacity and she can only exercise it for your benefit. POAs end at the drafter’s death.

It’s common today for families to have blended elements. Many people were married before and may have had children. Here’s an example of a famous father who made his third wife executor of his estate, giving her control of his business. In this case, his equally famous son was the principal player in the father’s business. The son didn’t understand the implications of his father’s estate plan. When the father died, there was a long and expensive legal battle between the son and the third wife.

Who was it? It was Dale Earnhardt Jr.

Work with our experienced estate planning attorneys to draft a comprehensive estate plan that clearly indicates your goals and wishes. Having a straightforward estate plan will go a long way in preventing fighting amongst your family.


Reference: The (Washington, PA) Observer-Reporter (December 7, 2018) “Improper estate planning can lead to familial conflict”

Estate Planning Documents You Need While Living

Statistically, we know without a doubt that we are all going to die. That’s 100% certain. However, we know that the chances of becoming disabled are also high. For that reason, everyone should have a Power of Attorney, or POA, as well as a will. In fact, says nwi.com in the article “Estate Planning: 3 important estate planning docs, and 2 maybes,” everyone should have a POA, a will, an advanced medical directive and more specifically, a living will.

How many times have you heard the story about someone’s aging mom becoming disabled and the hospital asking if she has a POA? The problem is we’re so reluctant to ask mom about a POA, that we tend to neglect this difficult conversation. Then, when we are faced with a medical emergency, it’s too late.

The time to have a POA created, is before an emergency or health crisis, not afterwards!

In a medical emergency, people are actually far more likely to become disabled or incapacitated than they are to die. Therefore, you need a POA.

The living will is an equally important estate planning document to have in advance of an emergency. With a living will to provide instructions for when you are terminally ill, and death is expected to occur in the very near future, you will have had the opportunity to state your wishes regarding medical care in advance.

A living will should be part of your estate plan.

The third must-have estate planning document is a will. The will is the document where you tell your heirs exactly how you want your assets distributed. If you have children who are not yet of legal age, you name a guardian for them in your will.

One “maybe” document is a trust. Trusts are used to protect assets. There are many different types of trusts. An estate planning attorney, the same one who will help you with your POA, living will and will, can also help with trusts, if you should need one. They are not simple to set up and you’ll want to get the one that best fits your needs.

Another document is called a “letter of instruction.” This is a set of directions that you leave to your family that tells them what you would like to happen. It’s not legally binding, so it falls into the “maybe” document category. However, you may find it satisfying to put down on paper what you would like them to know, what you would like them to remember, etc.

If you want to dictate your funeral, memorial services and the like, work with an estate planning attorney to execute a funeral planning declaration. This document can be legally enforced.

Remember, the laws about estate plans vary by state, so you’ll want to speak with our estate planning attorneys to ensure that your wishes, your documents and your estate plan will be properly prepared.


Reference: nwi.com (Nov. 25, 2018) “Estate Planning: 3 important estate planning docs, and 2 maybes”

More than a Will: What Else Should Your Estate Plan Include?

A will is the cornerstone of an estate plan, but it is by no means the only document needed to distribute assets and prepare for both incapacity and death. The Island Now reviews a number of things that an estate plan should address in the article “Five things that will impact your will.”

How are your bank accounts structured? If you have a bank account set up as “joint with right of survivorship,” when one of the owners dies, the other owner automatically inherits the whole account. Remember that this will occur, no matter what is stated in the will. If you have added a child to that account for convenience, is it your wish that the child should inherit the entire account? That’s exactly what will happen. You may be better off letting a child help you, using Power of Attorney rather than structuring the account that way.

When was the last time you reviewed beneficiary designations? Like titling bank accounts, as explained above, the beneficiary designation takes precedence over anything in your will. If you opened an IRA at your first job and now two decades—and two marriages—have passed, that IRA will still be passed on to the person who you named two decades ago, unless you have updated the beneficiary name. Accounts that often pass directly to beneficiaries include life insurance, annuities, 401(k), 403(b), brokerage accounts and some bank accounts.

Each asset that has a beneficiary, should also have a contingency beneficiary in the chance that the primary predeceases you or does not wish to receive the asset.

Are you prepared for the cost of a health crisis? The cost of a health crisis can, and often does, wipe out a family’s years of retirement savings. There are several strategies that an estate planning attorney can help you with to plan in advance for this. Long-term care insurance may be an option and placing assets in an irrevocable trust may be another, depending on your situation. There is a five-year look-back for any Medicaid benefits, so preparing a comprehensive estate plan in advance is critical.

For many families, placing their primary residence into a trust while retaining the right to live in the home, retaining any STAR or Veteran’s exemptions and possibly even securing capital gains advantages for heirs is a possibility but requires the help of a skilled estate planning attorney, like those at Krause Donovan Estate Law Partners, LLC.

Is gifting part of your estate plan? Most people know about the annual exclusion gift, which allows anyone to make a gift in the amount of $15,000 per year to a beneficiary with no gift tax consequences. However, if you need to apply for Medicaid coverage within a five-year period, any gift will trigger a waiting period before you can be eligible for Medicaid. Therefore, you can make a gift for tax purposes but it’s not something you can do for Medicaid planning. This is an expensive mistake. Talk with our estate planning attorneys to make sure you get this one right.

Who is your Power of Attorney? Everyone should have a Power of Attorney. This is a person who is your legal representative, if you become incapacitated. The durable power of attorney gives your agent the authority to handle banking matters, real estate transactions and other financial matters. You’ll also need a health care proxy and a living will.

All these issues are part of a comprehensive estate plan, which is best created with our experienced estate planning and elder law attorneys.


Reference: The Island Now (Nov. 12, 1018) “Five things that will impact your will”

Incapacity Management: Do I Have All The Right Documents?

If you’re in a tragic accident that leaves you in a coma, there will be financial decisions that will need to be made. If you don’t plan ahead for incapacity, a family member will have to hire an attorney and ask a judge to grant a Power of Attorney that will permit her to act on your behalf. That could be an expensive and time-consuming task.

AL.com’s recent article, “If You Don’t Have This, You Need It” says that a better solution is to be proactive and have your attorney create a Power of Attorney before you need one. Let’s look at the different types of POAs.

  • Springing Power of Attorney. This only becomes effective under certain conditions, typically incapacity. A big disadvantage of this POA, is that when someone tries to use it on your behalf, they may be required to “prove” that you are actually incompetent, creating inconvenience and delays.
  • General Power of Attorney. This document is one in which you give your attorney-in-fact the authority to act on your behalf at any time. However, if you become incapacitated, this document is null and void.
  • General and Durable Power of Attorney. This document lets your attorney-in-fact continue acting on your behalf, if you become incapacitated.
  • Limited Power of Attorney. Here, you appoint someone to act on your behalf, only under certain conditions, such as only when you’re out of the country.

Consider your own situation. Which Power of Attorney is most appropriate for you during times of incapacity? Our experienced estate planning attorneys help make this decision more accurate and easier. You will then decide whom you’d appoint as your attorney-in-fact. If you’re married, a natural choice is your spouse. However, you should also have at least one successor attorney-in-fact.

Consult with our estate planning attorneys to be sure the document conforms to state law. We can help you decide which Power of Attorney type is best for your situation.

Advance Directive for Healthcare. This document describes your wishes on end-of-life care. These documents aren’t legally binding agreements, but it’s seldom that their instructions aren’t followed and accepted by healthcare professionals. Talk to our attorneys, because they do vary by state. They’re typically, divided into two parts:

  • Living Will. In this, you’ll give detailed instructions on the level of care, should you become incompetent and facing a potential end-of-life situation. This should talk about whether you’d want to stay on life-support, remain on a feeding tube, or if you’d want hydration or pain medicines administered or withheld, should you ever be in a vegetative state. It’s far better for you to make these calls, instead of leaving it to a physician or a family member.
  • Healthcare Proxy. With this document, you appoint the individual you’d want to speak on your behalf concerning healthcare decisions. As an alternative, you can state that you’re requesting your Living Will instructions be strictly followed, and you explicitly indicate you don’t want someone to speak on your behalf.

Reference: AL.com (October 26, 2018) “If You Don’t Have This, You Need It”
Medicaid crisis planning

Why Should I Write a Living Will?

“Advance care planning takes place over a lifetime. It changes as one’s goals and priorities in life change through different stages of life and health conditions,” asserts new guidelines on living wills from the American Bar Association Commission on Law and Aging.

There are typically four stages of life that should necessitate changing a living will, says Forbes in its recent article, “Living Wills Stressed For Adults Of All Ages.”

Aging as a Solo Presents Unique Challenges

“Over 30 years ago, researchers and geriatricians identified an “elder orphan” (sometimes called a “solo ager”), as a person aging alone with little support.”

Little is known about “elder orphans,” people who don’t have parents, a spouse or family members. Decades ago, when families stayed closer to each other, a single or widowed person would remain connected to the extended family throughout their lives. However, today, as reported in Next Avenue’s insightful article titled “Identifying the Unique Challenges of Solo Agers,” many without families lack support and their needs are different than others aging at home. …

Preparing for the Inevitable: End of Life Decisions

“Are you ready for the end of life? Many of us can resolutely answer “no.” I am not implying preparation for life after death, salvation or eternal darkness—I simply mean forethought in the medical care that you wish to receive in a life-threatening illness or injury.”

When most people think of preparing for the end of their lives, it’s accompanied by an image of an elderly person surrounded by loved ones. Not everyone is lucky enough to have what we call a “good death.” …

How to Prevent Financial Elder Abuse

“High-profile charges of financial elder abuse raise troubling questions. Here’s how to protect yourself and your family.”

Stories of two high-profile elderly Americans have shone a harsh light on the issue of financial elder abuse. However, the rich and famous are not the only ones who are vulnerable. All families need to know what they can do to protect their loved ones, says AARP in the article “7 Ways to Prevent Financial Elder Abuse.”

The Time to Plan is Now and Not Later

“The client wanted her surviving spouse to have access to her work email, but her employer shut down the email account following her death.”

This is one of those situations that does not have a happy ending. A woman died unexpectedly, and her employer shut down her email immediately after her death. Her surviving spouse knew that the woman had wanted him to have access to her emails, but it was too late. …

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