Estate Planning Bits

Beware invalidating your custom Health Care Proxy with a generic one

Hospitals encourage patients to complete a Health Care Proxy upon arrival and tend to direct patients to complete one upon arrival in the emergency room. It’s wise to be wary of this edict. The generic form supplied by a hospital is basic and simple to complete; however, it does not necessarily cater to your specific circumstances and needs.

Admission to the hospital is not the appropriate time to consider terminal illness decisions, as your typical primary concern is a positive outcome of your hospitalization. As such, it is best to consider health care decisions in a less stressful situation.

A bigger problem comes in you have already executed a Health Care Proxy as part of your overall estate plan, and you then hastily fill-out and sign the hospital form. Execution of the new form revokes your prior Health Care Proxy, thereby stripping you of the carefully thought-out intentions provided for in the prior, now revoked document.

The best Health Care Proxies that address your concerns and intentions are not simply forms. They can address such issues as:

• Living Will Language: Whether or not you wish to be kept alive by machines in the event that independent physicians concur that you are in an irreversible coma or other terminal condition with no chance of recovery
• Organ Donation: Whether or not you wish to be an organ donor
• Creation or Burial: Whether or not you wish to be cremated or buried
• Burial Instructions: Where and how you wish to be buried
• Pain Control Preferences
• HIPPAA Release Language

Although the elderly contemplate execution of a Health Care Proxy more so than younger people, it is recommended for everyone over the age of 18. Eighty percent of those Americans who are in a persistent vegetative state are between the ages of 18 and 30 years old. The most appropriate time to draft and execute a Health Care Proxy is when you have time to reflect and consider your healthcare wishes.

An experienced estate planning attorney can provide you with the alternatives and options available to make the document suitable for your situation so that you do not have to rely on a statutory form filled-out under inordinate circumstances.


By: Todd C. Ratner, Esq.

Change your estate plan – the right way and the wrong way

It often happens that someone dies and a family member bring me their loved one’s will to probate in probate court. In reviewing the Will, we will often find that there are hand-written notes in the margins, “scratch outs,” and other attempted hand-written changes, sometimes with initials and dates, and other times none. 

In most states, those attempted changes to the original signed Will are not effective. In some situations, the probate court may also request or require that one of the witnesses to the Will, or the preparer, or original witnesses to the Will appear in court to testify as to whether these changes were made at the time the Will was signed or subsequent to the Will being executed. 

It’s not uncommon for people to believe that because they made hand-written notes on their Will or wrote an addendum, that will effectively change their Will. They do this to save time, or to prevent spending extra money on fees for professional services to revise what was previously a valid drafted will.

I have even received letters from clients who decide to make a change, but they never got around to getting into the office to formalize those changes. They think that this will suffice in case there is an accident, and they think that these letters of instructions will help. Although it is helpful to have something in writing that expresses a client’s desires, the Will itself may not be legally altered by these signed letters. 

These errors in judgment on the part of a client may cause the intended changes to be ineffective and also cost the estate a significant amount of money if and when the Will is probated and a contest to the Will is defended by the estate. Those changes, which are likely relatively minor, are not expensive, and in some cases, a simple codicil, (document that changes the Will,) may be all that is necessary, as opposed to re-drafting the entire Will. 

When a change in circumstances, assets structure, or a family situation occurs, it is best to contact your attorney so that your Will may be made promptly and correctly changed. At the same time, it may be advisable to review the individuals named within your Will as guardians, executors and trustees, as well as other documents, such as your Health Proxy and Power of Attorney, to ensure that the proper named are still appropriate to serve in their respective capacities.

There may also be changes in the total assets you own, which may require that a trust to be created. Or, if assets have significantly diminished, then it is possible that the need for a trust has diminished and reciprocal Wills may suffice.



By: Hyman G. Darling, Esq.

Demystifying terms used by estate planning attorneys

Agent: The person given legal authority to make financial decisions for a person through a durable power of attorney document or the legal authority to make health and medical decisions for a person through a health care proxy document.

Artificial Life Support: Medical equipment and other technology used to prolong the life of a person who is seriously ill by sustaining essential body functions, like breathing.

Assets: Personal possessions of value, including cash, bank accounts, real estate, vehicles and investments.

Beneficiaries: The people named in the will to receive the estate of the person upon his or her death.

Conservator: The person appointed by the courts to make financial decisions on behalf of a person.

Custody: Legal responsibility of a person.

DNR:  Stands for “Do not resuscitate” and refers to a person’s instructions that, if his or her heart or breathing stops, the doctor should not try to restart it.

Durable: When a power of attorney document is durable, it is valid even after the person with dementia can no longer make his or her own decisions.

Execute: To legally sign or “carry out” a legal document.

Executor: The person named in a will to manage the estate of the person upon his or her death.

Grantor: The person for whom a living trust is created.

Guardian: The person appointed by the courts to make health care decisions on behalf of a person (sometimes also includes financial decisions.)

Health care agent: The person given legal authority to make health care decisions for a person through a health care proxy document.

Legal capacity: The level of judgment and decision-making ability needed to sign official documents.

Probate:   The process used by the court to distribute the property of a person who has died.

Trustee: The individual or bank chosen to manage the property (assets) in the trust document of a person.



by: Todd C. Ratner, Esc.

Communicating with Alzheimer’s patients

Communicating with a loved one who has Alzheimer’s disease is difficult for all parties. Often the family member is unable to understand or respond. Sometimes the person may hear and think that they understand, but they are unable to verbalize a response due to problems connected to the disease itself. However, learning to successfully communicate may help reduce aggressive behaviors as well as foster a meaningful relationship within a family. 

It has been shown that surrounding noise and movement may affect a person’s ability to communicate. He may find all of this other stimulation too distracting when trying to sit and listen to someone. Therefore, it may be helpful to sit face-to-face with the loved one and spend some time doing sensory stimulation such as holding their hand or rubbing their arm - something they’ll like. 

Similarly, the element of surprise is not usually looked on as a positive factor for the Alzheimer’s patient. Therefore, it may be preferable to not yell a loud “HELLO” when greeting them, but rather, softly introduce yourself, and speak in quieter tones.

Speaking slowly in a low pitched voice is also helpful. In addition, asking only one simple question at a time may be more beneficial to communicating. And once you ask a simple question that requires a simple yes or no answer, perhaps a follow up question on the same topic may allow the family member to respond appropriately. 

There are a few other techniques that may be helpful. Perhaps there are home movies, for instance, a video of a wedding or other family events that may reintroduce family members to the Alzheimer’s patient. Identification can certainly enhance the family relationship while reinforcing who the various people are. However, the tape or movie may have to be repeated several times, and even on a daily basis, for the family member to achieve some recognition of events, family, special occasions, etc.

Another means of stimulating conversation is to play movies or documentaries of historical events. Biographies and historical documentaries may spark a memory in the Alzheimer’s patient when played. In addition, it may be beneficial to video tape or otherwise record photographs with narration that the person may view on their own in order to jog his memory. Special music recorded on the video may also be recognizable and reminiscent to the patient.


By: Hyman G. Darling, Esq.

Five trust myths

Hardly a day goes by where a client does not tell me that they need a trust.  

 

• Okay. So everybody needs a trust? Some people have assets totally in joint accounts with their children. These assets will pass outright to your children upon your death without the need for probate. However, your children then receive the funds outright and the assets are subject to their creditors, former spouses, etc. If this is not your intended or desired result, then a trust may be appropriate. In such a case, funds could be held for the benefit of your children with an allocation of specified amounts or percentages being distributed at various ages.
• A trust will save taxes. Just because assets are in a trust, that doesn’t necessarily eliminate or save estate taxes. If the trust is a revocable trust, your still own all the assets, and all income received from assets in the trust will be taxed to you at your own income tax bracket. Likewise, all assets will be includable in your estate for estate tax purposes. Therefore, although the assets will not pass through probate, they are subject to all Estate Taxes.
  
• All trusts are not probated. This usually is the case, but it is important to coordinate the ownership of assets put in the trust. For instance, if you own a house and have a trust, but you maintain the property in your own name, then the assets must pass through the probate proceedings in order to get into the trust. If a deed is drafted, signed, and recorded before date of death, then this asset will not pass through probate, but rather, will be held in the trust to be administered and distributed in accordance with the terms of the trust.
  
• All trusts are the same. This is certainly not the case, as the need for different distribution requirements in each trust may be based on the family needs for money, status of your children and grandchildren, etc. Each trust should be individually drafted, and although much of the language may be required or standard, the essence of the trust is such that it must be changed in order to comport to the wishes of your family.
  
• A trust will avoid prevent funding a stay in a long term care facility. Unless the trust is irrevocable, and has been funded five-years prior to your institutionalization on a permanent basis, the funds in the trust are subject to be spent on your care. Likewise, in the event that the trustee has any discretion to utilize the funds to or for the benefit of the beneficiary, (you,)who may be institutionalized, then those funds are also deemed to be available to be spent and used for your care.

In listening to Suze Ormond, it was interesting to learn that she felt that most people will or should need a trust. This is not the situation in every case, even though there are many different types of trusts that serve a family well in obtaining maximum tax benefits, avoiding probate, and minimizing fees.

By: Hyman G. Darling, Esq.