Building Legacies that Last Estate Planning and Elder Law

Why Is a Power of Attorney So Important?

Elderly couple looking concerned

“……we often receive community questions surrounding powers of attorney (POA), so we decided to take a look at some of the most common misconceptions surrounding a POA.”

Most people understand the basic concept of a last will and testament: a document that directs how assets are to be distributed after someone dies. However, according to an article from A Place For Mom, “5 Misconceptions About a Power of Attorney,” there’s a lot of confusion over this legal document.

Misconception #1–You can sign a power of attorney, even if you are legally incompetent.

Not true. This is one of the most common misconceptions. In fact, if you have a document from a medical doctor that says a person is not competent, that person is no longer able to sign any legal documents. Many people generally think about what they need to do, i.e., accessing a bank account, when an elderly parent can no longer do so.  However, if Dad lost his legal capacity just before a power of attorney or living trust was signed, that’s no longer an option. You’ll have to go through a guardianship or conservatorship proceeding through the court to have any control over Dad’s assets.

Misconception #2—You can find a power of attorney document online.

You might find such a document online but it most likely will not be suited to your circumstances. You need to have a power of attorney custom drafted, so it is legal in your state and addresses your family’s needs. Many online documents end up being useless. It’s a big risk to take.

Misconception #3—A power of attorney lets the agent do whatever they want.

The agent under a power of attorney has a legal and fiduciary duty to make decisions in the best interests of the person who named them as power of attorney. They have not been handed a free pass; on the contrary, they have a big responsibility to do the right thing.

Misconception #4—There is one power of attorney.

This is why an estate planning attorney is needed for the power of attorney. There are two main types: a general power of attorney and a limited or special power of attorney. They are named correctly: a general power of attorney allows for buying or selling property or managing assets. A limited or special power of attorney refers to a specific transaction or task. Which one you need, depends on the laws of your state and the circumstances.

Misconception #5—A power of attorney survives death.

All powers of attorney terminate on death. Once a person has passed, so has the authority for their agent to act on their behalf. A durable power of attorney allows the agent to act, in the event of incapacity but not death.

Power of attorney is an important part of an estate plan and requires the specific knowledge of an estate planning or elder law attorney. Don’t wait until it is too late for a family member (or yourself) to have this document prepared and signed.

Resource: A Place For Mom (July 11, 2018) “5 Misconceptions About a Power of Attorney”

 

Tell Someone about Your Advanced Medical Directives

MP900448483If you have a health care power of attorney and living will, you should make sure that someone you trust knows where to find them.

It is very easy to get advanced medical directives today. You can often get living wills and health care powers of attorney as part of the process of admission to a hospital. If you tell a doctor about your wishes, it is often good enough for the doctor to make a note of them in his or her notes. However, getting those documents at a hospital or by telling a doctor can be a problem.

The system of medical records used in the U.S. does not make it easy for doctors to know that you have expressed your wishes ahead of time, especially when they actually need the information as The New York Times reports in "You've Detailed Your Last Wishes, but Doctors May Not See Them."

There is a potential way to mitigate the possibility that this problem will happen to you. Get your living will and your health care power of attorney ahead of time, by going to an estate planning attorney. These documents are routinely created as part of the estate planning process.

Once you have created the documents, you should store them in a secure place.  However, do not stop there. Make sure that someone you trust knows where to find the documents. That person can then get them when needed, to the doctors providing care for you.

This is not a perfect plan that will work all of the time, but it is better than relying on the current system of medical records.

Reference: New York Times (March 27, 2018) "You've Detailed Your Last Wishes, but Doctors May Not See Them."

 

What You Should Have in Your Estate Plan

Bigstock-Financial-consultant-presents--14508974[1]There are a few things that every single estate plan needs to have regardless of the exact legal instruments that you end up using as your primary estate planning tools.

Estate plans can take a variety of shapes. Some estate plans are small and simple. Other estate plans are large and contain many complex legal instruments. However, there are a few things every single estate plan needs to have.

Recently, the Catholic Register discussed what is necessary for all Canadian estate plans in "The must-haves of estate planning." In the U.S. most of the same things are also necessary. They include:

  • Someone needs to be appointed as the executor of your will. Even if the primary instrument to distribute your property is a trust, your plan should still include a pour-over will for which you need to appoint someone trustworthy as an executor.
  • Your estate plan needs to include some basic tax planning, especially if you live in a state that has an estate tax of its own.  Both Maryland and the District of Columbia do, so you need some basic tax planning in both these states.
  • If you have any dependents, then your estate plan needs to provide for their care. While you have some flexibility in your estate, you cannot simply disinherit a spouse or a minor child.  Maryland and the District of Columbia, like other states, allow disinherited spouses to claim an elective share of the estate, regardless of an intent to disinherit.
  • Your estate plan should also include powers of attorney so you can appoint someone to look after your interests if you become incapacitated.

If you have an experienced estate planning attorney create your estate plan, then it will contain all of these things and much more that will make your estate plan as effective as it can possibly be. Schedule a consultation with Profit Law  Firm to get the peace of mind that comes with proper estate planning.

Reference: Catholic Register (Nov. 6, 2016) "The must-haves of estate planning."

 

What Is Your Estate Planning Attorney Talking About?


Bigstock-Financial-consultant-presents--14508974[1]Estate Planning Attorneys talk about a lot of different legal documents. You need to know what those documents are.

When you visit with an estate planning attorney, the attorney is likely to mention the names of several different legal documents. If you want to understand what the attorney is talking about, then you will need to know what those documents are.

Most attorneys would be happy for you to ask if you do not know. Answering questions is what the attorney is there for. However, if you are not comfortable asking basic questions, then you should learn some basics beforehand.

Recently, the Ventura County Star published a list of basic estate planning documents and what they do in "Get to know estate planning documents." The list includes:

  • Advance Directive – Tells doctors and other health care professionals what procedures not to perform if you are terminally ill and have no chance of recovery.
  • Asset Inventory – A list of all of your assets to let your estate executor know what you have after you pass away.
  • Beneficiary designations – Life insurance, retirement accounts, and other financial accounts you designate to go to a specific person after you pass away.
  • Power of Attorney – Allows for someone else to handle your finances if you are incapacitated.
  • Power of Attorney for health care – Allows for someone else to make medical decisions for you if you are incapacitated.
  • Record of Locations – A list of where your heirs can find all the important financial and legal documents after you pass away.
  • Trust agreement – A method of passing assets to others while having those assets maintained by a third person.
  • Will – The most common estate planning document that says how assets should be distributed after you pass away via probate.

A qualified estate planning attorney can help you decide the best legal documents to use for your unique circumstances.

Reference: Ventura County Star (Sept. 17, 2016) "Get to know estate planning documents."

 

Glen Campbell’s Kids Still Not Allowed to Visit Him


Bigstock-Extended-Family-Outside-Modern-13915094[1]Despite a state law that says otherwise, and that is named after their father, Glen Campbell’s children say that they are still being denied access to their father.

In May, the governor of Tennessee signed a bill providing that family and friends cannot be prohibited from visiting someone by a guardian or someone who has power of attorney without a specific court order. The law is known as the “Glen Campbell/Peter Falk Bill” after two celebrity cases where family access was denied.

Glen Campbell suffers from Alzheimer’s disease and is under the care of his fourth wife in Nashville. Despite the existence of this law, Campbell’s children claim they are still being denied access to their father by the fourth wife.

An online fundraising page has been created to raise funds for their legal case Fox News reports in “Glen Campbell's kids say they can't see their dad, fans raise money.”

This is an unfortunately common occurrence.

Caretakers who do not get along with the family members often deny those family members access. Sometimes it is just done out of spite. However, it is also often done as a way to hide elder abuse and undue influence over someone’s estate plan.

Family members who are denied access have no way of monitoring to make sure their loved ones are being looked after properly. Tennessee took an important step by passing this law, but it is clear that more still needs to be done in that state and throughout the country.

Reference: Fox News (Aug. 8, 2016) “Glen Campbell's kids say they can't see their dad, fans raise money.”

 

Estate Planning Documents You Need

Bigstock-Attractive-Mixed-Race-Couple-P-9992345[1]Everyone needs an estate plan, and every estate plan will contain a mix of different documents depending on the complexity of the estate assets and individual preferences. However, there are a few documents that everyone needs.

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 at Profit Law Firm, PLLC to determine what additional documents you may need.

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

Estate Planning Is for Everyone: Why A Power of Attorney in Maryland Matters

Bigstock-Beautiful-woman-looking-throug-20311445[1]Adults who have never been married and who do not have children often think that they do not need estate plans, especially if they are not wealthy. However, estate planning is for everyone, and even lifelong singles can benefit from having an estate plan.

A common misconception is that if you are a single adult with no children, you will not need an estate plan.

Recently, the NWI Times wrote about one such case in “Single childless adults need to plan too.”

As the article points out, if such a person passes away without an estate plan, his or her assets will go to the closest living relative. That means if either parent is still alive, then the parent will get everything.

For some this default approach might be acceptable, but others will want estate plans so their possessions can be inherited by friends or other family members.

Power of Attorney – Maryland

Estate planning is also not only about what happens to your possessions after you pass away. One of the most important aspects of estate planning is determining who handles your affairs if you become incapacitated and are unable to handle them yourself.

You need a general durable power of attorney in Maryland so someone can handle your financial affairs and a health care power of attorney in Maryland so someone can make any necessary health care decisions. Because you are an adult, your parents will not have an automatic right to help you and handle everything.

Thinking about death is not enjoyable, but just because you do not have a spouse or a child does not mean you do not need to think about it at least long enough to get an estate plan.

Reference: NWI Times (July 17, 2016) “Single childless adults need to plan too