Estate Planning Bits

Open enrollment period for 2015 health insurance coverage

Did you know that we are currently in the open enrollment period for “Obamacare”? For plans sold on the individual market, consumers should act promptly to avoid any gap in coverage. If you do not act, you could be exposed to a penalty for being uninsured – the penalty will be the greater of 2% of your household income, or $325.00. The 2015 enrollment period runs from November 15, 2014 through February 15, 2015, so there is still time to address this after the holiday season. But beware that if your coverage is ending on December 31, 2014, you must enroll by December 15 to be covered as of January 1, 2015.

There are many different plans to consider, and it is important to spend time determining which plan is best for you. One of the best websites for information is www.healthcare.gov. There are links to considering new plans, staying covered through the marketplace, reviewing plans that have changed from the prior year, and informing you as to what happens if you do not have your enrollment in place. Prices are also available to review. If you wish to change your coverage, now is the time review your options. Another helpful website is www.gohealthinsurance.com which will assist you in checking if you qualify for government-assisted health insurance.

There is no shortage of websites or information, but whatever your choice, it should be elected very soon so that you will have an opportunity to thoroughly review your options and not allow your coverage to lapse risking a penalty.

Hyman G. Darling, Esquire

Image credit: Pixabay

New smartphone app enables you to carry your health care wishes with you

A relatively new smartphone application produced by the American Bar Association Commission on Law and Aging gives individuals and families the ability to store their own health care advance directives, often called a health proxy for health decisions, living wills, etc. in addition, key health care information and contacts may be stored on either the Android or Apple Smartphones. This new app is called My Health Care Wishes and is available for download here: www.myhealthcarewishes.org. 

Very often, an individual becomes ill and no one in the family knows where the documents were stored or what their loved one’s wishes were intended to be. This application provides family members, as well as medical personnel, the ability to have information available when necessary, in the unfortunate event of a loved one’s serious illness. 

In the past, many states or private enterprises have attempted to store this information, but they have not been very successful, due to the fact that many individuals did not want to provide this information “publicly,” in addition to the inefficiency of anyone else trying to maintain this information in a meaningful format. 

In this manner, you may create their own personal registry and update it whenever necessary, as well as be able to forward the information to others. You may allow a child, family member, or other trusted individual to have these documents loaded on their own smartphone, and therefore, have them available in the unfortunate event of your illness. 

There are different versions of the app available, and while one is free and stores the information, the other version is currently offered for $3.99 and allows unlimited storage of all related information, the ability to email the stored documents to a health care provider and other family members, and it provides additional resources.

One significant caution though is that this application may provide the ability to create documents without the advice of a lawyer, and these new documents could revoke your custom prepared estate planning documents that were drafted by your attorney. 

This app does not solve all problems, but it certainly makes available a relatively easy solution for families who wish to have information and access available. It may also be helpful to be sure that your attorney receives a copy of these new documents and to be sure that all intentions of your plan are properly coordinated.

 

Hyman G. Darling, Esq.

Estate planning checklist: Health care proxy and do not resuscitate (Part 4)

Health Care Proxy (HCP):

Review your HCP to confirm that it identifies current designations of those who you want making health care decisions for you if/when you can no longer make or communicate on your own. It can only benefit you to list appointees to serve in consecutive order. Ask your attorney whether additional provisions to your document would be prudent. For example: do you have a religious belief that needs to be articulated? Would you allow certain drugs to be administered that might otherwise require court approval? Do you want your health care agent to choose a nursing home for you if it become necessary? 

Once signed, provide your HCP to your health care providers and hospitals. Keep an extra copy in your car or with your other important papers And, of course, provide a copy of your HCP to those you have appointed as decision makers. 

Without an HCP, if health care decisions need to be made for you, a court will appoint a guardian to make decisions for you. Your spouse does not automatically have the right. The benefit of an HCP is that you get to choose those individuals who you trust to make decisions for you as you would want for yourself, as opposed to having a court choose. 

 

Do Not Resuscitate Order (DNR): 

This document is not prepared by your attorney. It is available to be signed in your physician’s office, and it merely states that if your heart stops, you do not want extraordinary measures taken to re-start it.

 

Lisa L. Halbert, Esq.

Image credit:  Kyle Taylor, Dream It. Do It. World Tour, under Creative Commons license

Important considerations when choosing agents under a durable power of attorney and health care proxy

Choosing people (agents) to make your medical and financial decisions under a health care proxy and durable power of attorney are important considerations. It is imperative to choose someone you trust and someone who knows you well enough to be able to “stand in your shoes” and make decisions that you would make. Remember, your agent should be making decisions based upon how you would act, not how they would act personally.

When contemplating agents, a potential pitfall is to name two or three people to act together. The potential for disagreement is a significant consideration when more than one agent is appointed. In the event that you nominate more than one person to serve at a time, you will want to provide language that will expedite resolutions among quarrelling agents. It is also important to note that you do not need to nominate the same agent under your health care proxy and durable power of attorney. If you trust multiple people, you will want to nominate one or two successor agents for each document in case your first choice is unable or unwilling to act.

In an effort to make your agents feel more comfortable and to ensure that your wishes are followed, you will want to provide them with some written guidelines, particularly about potentially difficult decisions such as life-sustaining treatments, organ donation and disposition of your remains.

Todd C. Ratner, Esq.

Image credit: Michael 1952 under Creative Commons license

What you need to know about organ and tissue donations

It is reported that at least approximately 80 people receive an organ transplant every day. However, unfortunately, approximately 20 people per day die because they are unable to have one.

Organ donation is a critical part of our medical system, but some people are concerned that if they to become an organ donor, there will be a hastening of their death, as a surgeon will attempt to “harvest” their organs sooner rather than later. This is incorrect, as organs cannot be taken without permission from the family. Sometimes a family is reluctant to agree to have their loved one be an organ donor though because the individual has not made his or her wishes known to them. In such cases, the prospective organ donor’s wish could possibly be frustrated.

A Gallop poll suggests that when family members know that their loved one wishes to be an organ donor, 94% will honor the request. When they do not know though, only slightly more that 50% will donate the relative’s organs. Of all the causes for organs being unavailable from people who wanted to be donors, 37% are lost due to the family’s refusal to consent. That is a lot of lives that could have been saved.

There are a couple ways to document your desire to become an organ donor. Normally, when you renew your license, you can determine if you wish to be an organ donor, and a notation or symbol will be added to your license indicating that intention. Very often, however, people don’t take the time to think through this option, and what it could mean to others, so they don’t check the box. In addition, most elder law attorneys and estate planning lawyers discuss this option with their clients, in companion with other things, such as whether they want to be buried or cremated.

Basically, you can become an organ donor if you are at least 18, and if under 18, then with your parent’s consent. There are no age limits. Your health and physical condition really determine whether you are able to do so.

The most popular organs to be donated and the greatest need is for kidneys, hearts, pancreas, lungs, livers, intestines, cornea tissue, bone marrow, and heart valves.

In most cases, there is no cost to your family for organ donation, as costs are paid by the recipient, unusually through insurance, Medicare, or Medicaid. One of the best ways to insure that your intentions and desires are carried out will be to include organ donation language within your health proxy, power of attorney, or living will, as part of your estate plan.

Your family should also be informed of your decisions and you should be sure that they are willing to carry them out. If you don’t believe that they could or would honor your wishes, then perhaps you should select an alternate decision maker for if and when the time comes to make end of life decisions and carry out your directives relative to organ donations. This will spare your family of making this burdensome and personal decision at a very emotional time. 

 

Hyman G. Darling, Esq.

Photo credit: born1945 under Creative Commons license

Massachusetts medical orders for life-sustaining treatment

Medical Orders for Life-Sustaining Treatment (MOLST) is a standardized, voluntary form that allows a seriously ill patient to provide preferences for certain medically appropriate life-sustaining treatments into valid medical orders that may be honored by all health care professionals. The form contains valid medical orders concerning:

• CPR
• Intubation/ventilation
• Transfer o a hospital
• Dialysis;
• Artificial Nutrition
• Artificial Hydration and
• Other treatment preferences. 

MOLST is based upon the ethical and legal principles of patient self-determination and respect for patient autonomy. Its instructions are effective immediately and reflect the patient’s current health status and preferences. MOLST is suitable for patients of any age with a serious medical condition including, but not limited to: life threatening disease, chronic progressive disease, dementia, life threatening injury, or medical frailty.

A valid MOLST must be signed by both the patient (or the patient’s health care proxy – but only if the patient has lost capacity, or the patient’s guardian) and the attending physician, nurse practitioner, or physician assistant.

A Health Care Proxy and MOLST are two different forms used in Massachusetts to express a person’s wishes about their own medical care. These forms are used for different reasons and at different times in health care planning. Although MOLST is not intended to be drafted by elder law attorneys, attorneys should ensure that there are no inconsistencies between a Health Care Proxy and the MOLST.

 

Todd C. Ratner, Esq.

Photo credit: Microsoft  

 

Why your college-age child needs his or her estate planning documents in place

If you have children who are over the age of 18, you should know that they need to have documents that are similar to your own. If your child gets ill while at school, without the proper documentation, you may not have access to talk to medical personnel.

When your child turns 18, they are no longer considered a minor, and you, (formerly their natural guardian,) no longer have the authority to make decisions for them. As a result, if you have to contact medical personnel at their college, it is likely that you will be told “We’re very sorry, but we cannot discuss any issues relative to your child, as we do not have authorization to do so.”

A child who is 18+ has the same rights as any other person, and privacy protection by the HIPAA (Health Insurance Portability and Accountability Act) prevents medical personnel from discussing medical decisions with anyone, including a parent, except in potentially dire need situations.

To prevent this potential problem, it is easy for your child to sign a health proxy, which allows someone, presumably you, to have access to your child’s medical records. This document should be given to the clinic or similar facility at their college when they arrive.

To bring home this point, there have been plenty of examples in recent years of situations at colleges involving violence. Again, your child’s college may not be able to share information without a health proxy, so you should keep a copy at home that could be faxed or email to the school if necessary and in the event that the school misplaces their original.

In addition, it may be beneficial to have a power of attorney in place so you have the authority to make financial decisions on behalf of your child if necessary.

Although this may be a difficult discussion, it could prevent a lot of emotional distress and anguish and is a relatively straight forward and easy document for your child to have. They may also even wish to include language within the document that allows organ donations if desired. Your child may also want to provide advice for end of life decisions, which would prevent protracted litigation over who will make these difficult decisions if and when your child is in a situation that requires them.

 

Hyman G. Darling, Esq.

Photo credit: Microsoft 

 

Estate Planning for Blended Families: Considerations for cohabitating or married couples with kids from other relationships

The modern family of today is often a mix of spouses, exes, kids, and steps who somehow find a way to make it all work. Estate planning for such an intricate blended family may be a little tricky, and there are lots of factors to consider. 

While traditional estate planning documents are critical, it is also important to consider a prenuptial or a cohabitation agreement. Either one of these agreements should spell out, in as much detail as possible, what will occur if the relationship dissolves, regardless of whether or not the couple is married. 

One of the major issues that this agreement should address is housing. When a couple purchases or rents a home together, if the relationship falls apart, and both parties are liable on a mortgage, what will happen?

Additional life insurance may be necessary if one of the parties is under an order of the court from a prior divorce decree wherein a percentage of assets is required to be maintained for the benefit of children from the prior marriage.

It is also important to consider each party’s health proxy and durable power of attorney. Who will be in charge of making decisions in the unfortunate event that one individual becomes incapacitated?

A will and possibly a trust should also be considered, and provisions within these documents should fairly closely mirror the prenuptial agreement to conform with all of the requirements set forth in that agreement, which may be construed to be a legal contract.

In addition, if there are any requirements under an order of the court from a prior divorce decree, those provisions should also be reviewed and included within one’s will.

When assets of relatively equal value are owned, some couples choose to retain their own assets in the event of a divorce, however, in the event of a death, some additional assets would be left to the survivor. Other options may include a possible phasing in of assets.

Health insurance should also be considered prior to marriage. Both parties may be receiving health insurance from a former spouse. The previous divorce decree, any modifications, and separation agreement should be reviewed carefully ensure that all benefits are maintained or solutions may be implemented.

The issue of life insurance and qualified plans such as 401(k)s, IRAs, 403(b)s, etc. should also be reviewed. It is very important to understand that such assets pass by beneficiary, not by will. Therefore, whoever is named as the beneficiary of these assets will receive them without the need of having those assets pass through probate.

Likewise, if assets are intended to pass to a trust or to individuals listed in a will, it is important to obtain change of beneficiary forms and have them signed and forwarded to the plan administrators at insurance companies when the documents are signed.

The bottom line is that there are many important considerations and decisions to make before remarrying or moving in with another person.

 

Hyman G. Darling, Esq.

Photo credit: Microsoft 

Preparing for your vacation

Vacation season is coming soon after the holidays. Are you planning a trip?

When planning to travel, it is common to experience nervousness. What would happen if you did not make it safely to or from your destination? Fortunately, you can establish an estate plan before your trip and quiet those fears. 

A simple plan includes a health care proxy, durable power of attorney, last will and testament, and possibly a homestead declaration. 

Should you experience an illness or injury while traveling that leaves you unable to handle your medical or financial decisions, having a health care proxy and durable power of attorney in place will make a world of difference. A health care proxy is a document in which you designate someone to make health care decisions for you if you are incapacitated. Similarly, a durable power of attorney is a document in which you designate someone to make your financial decisions. Having these documents in place allows the trusted person you have named to start handling your affairs as soon as you need assistance. 

God forbid you should pass away while traveling. Your family and loved ones would surely be shocked and distraught. But in the event that tragedy occurs, a last will and testament can provide some order during that otherwise difficult time. Your will sets forth the distribution of your probate estate, which are the assets that you leave in your name alone with no named beneficiary. In your will, you will also designate an executor, who is the person who will be responsible for carrying out your plan. Should you have minor children, you will also name a guardian, and possibly a trustee, who will be responsible for taking care of your children in your absence. This planning takes a tremendous burden off of your family members. 

For homeowners, a homestead declaration is a necessity. This is a one-page form that, once recorded in the Registry of Deeds, affirms that your principal residence is your homestead. It will protect the equity in your home up to $500,000 from judgments that arise after the declaration was recorded. Should you happen to cause an accident while traveling, the declaration will ensure that even if you are sued and your insurance is not sufficient, up to $500,000 of the equity in your home will be protected.

Gina M. Barry, Esq.

Photo credit: Microsoft   

Navigating the Minefield of Long Distance Caregiving

There comes a point when most of our nation’s elders will need assistance with various tasks, such as household management, bathing, dressing, medication management, meal preparation and eating, transferring, and/or using the restroom. In the past, such assistance was typically provided by family members, however, with the increased mobility of our society, it is now common for family members to be too physically distant to provide hands-on care

It is also common for an elder to be unwilling to move closer to their family, even if staying where they are means receiving care from someone other than their family members. Although the distance creates many hazards, steps can be taken to allow successful navigation of the minefield of legal, financial, and administrative issues that lie in wait for the long distance caregiver.

The most common legal issue associated with providing proper care and oversight from a distance involves establishing proper legal authority to ensure ongoing care in the event of incapacity of the elder. This legal issue can be easily resolved through the elder’s execution of a durable power of attorney and health care proxy. These documents give someone the elder chooses the authority to make financial and medical decisions on their behalf if they are incapacitated.

In addition, end of life decisions should be discussed with the elder, and their wishes should be memorialized in writing within the proper legal document. Ideally, the estate plan will also include a will, which provides clear instructions as to the disposition of the elder’s estate upon their passing away.

This is just the tip of the iceberg. If you are caring for your aging parent from afar, call us, and we’ll help you set up the proper documents for their care.

 

Gina M. Barry, Esq. 

Photo credit: Microsoft