Disability Panels to Take Back Control

When you create an estate plan, it is an admission of your mortality. But even if you accept that you are not going to live forever, you may be slower to face the possibility that you could become incapacitated before you die.

Although it can be an uncomfortable topic, incapacity is an essential but often overlooked part of drafting revocable living trusts. Placing your money and property in a living trust can accomplish many estate planning objectives, including planning for incapacity. Should you suffer a disability, your mental competency could come into question. At that point, it will need to be determined if a backup trustee should take over the management of your living trust.

Who, exactly, makes this key determination is very important. Naming a disability panel in your trust allows you to exert control over your incapacity plan by choosing a group of people you trust to determine if you are incapacitated.

Disability Is Common among Older Americans

Today, Americans can expect to live longer than previous generations. Living longer does not always mean living better, though.

Older Americans are much more likely than younger Americans to have a disability, according to the Pew Research Center.[1] About one-quarter of Americans, and roughly half of Americans over age seventy-five, report living with a disability. For eighteen- to thirty-four-year-olds, that number is just 6 percent. Around 13 percent of thirty-five- to sixty-four-year-olds say they have a disability.

Disability can befall anyone at any age. However, the longer you live, the more likely you are to suffer from a disability, and certain disabling conditions such as Alzheimer’s are age-related. Currently, more than 6 million Americans are […]

2023-03-21T08:30:58-07:00March 28th, 2023|Common Problems, Estate Planning, Healthcare Directives|

Last Will And Testament, Power Of Attorney, And Healthcare Proxy

Above the Law discusses the importance of having a Last Will And Testament, Power Of Attorney, And Healthcare Proxy:

Like an annual physical exam or dental cleaning, we know we must, but we often delay. Fear, anxiety, cost, and time are all factors in delaying that which all adults, regardless of familial structure and net worth, should accomplish. Executing estate planning documents, specifically a last will and testament, power of attorney and healthcare proxy, need not be a tremendous production, especially in the precarious times in which we live. At a minimum, we should all execute three basic documents, thus mitigating any future drama.

‘Carol Burnett’ star Tim Conway recovers from brain surgery as family battle over comic’s fate rages on

Fox:  “Tim Conway is recovering from brain surgery as his daughter and second wife fight in court over his care, Fox News learned Monday. The “Carol Burnett Show” star’s daughter, Kelly Conway, revealed that a Los Angeles court has decided a permanent conservatorship of the actor will be appointed in November. Kelly and her stepmother Charlene Conway each want sole conservatorship over the 84-year-old, who is suffering from dementia.“My brothers and I would like to thank the overwhelming support for my dad from fans all over the world that are contacting me via phone, email and social media,” Kelly told Fox News in a statement. “It lifts my brothers and me”

2018-09-24T14:43:08-07:00September 26th, 2018|Estate Fights, Healthcare Directives, Rich & Famous, Social Media|

You May Have Signed a Living Will, but Scary Mistakes can Happen at the ER

The Washington Post: Don’t resuscitate this patient; he has a living will,” the nurse told the doctor, Monica Williams-Murphy, handing her a document. Williams-Murphy looked at the sheet bearing the signature of the unconscious 78-year-old man, who had been rushed from a nursing home to the emergency room. “Do everything possible,” it read, with a check approving cardiopulmonary resuscitation. The nurse’s mistake was based on a misguided belief that living wills automatically include “do not resuscitate” (DNR) orders. Working quickly, Williams-Murphy revived the patient, who had a urinary tract infection and recovered after a few days in the hospital. Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama.”

2018-08-13T11:15:24-07:00August 15th, 2018|Healthcare Directives, Powers of Attorney|

Doctors Notes for Will Signings: Should You Get One?

JDSUPRA:  I recommend that before an ill or very elderly person signs a will (or trust), that the estate planning attorney obtain a note from a doctor as to the person’s mental capacity. Doing so will help create a record that will make it more challenging to contest the will (or trust) on the basis that the person lacked testamentary capacity (i.e., the requisite mental capacity in order to execute a will or trust).”

The Death of a Doctor’s Dog

The New York Times:  “Dr. Barron H. Lerner watched as his family’s pet boxer, Akeela, suffered from an increasingly devastating brain tumor. As the cancer progressed, she often walked in circles and was consistently restless and had trouble sleeping. Dr. Lerner and his family, emotionally taxed watching Akeela suffer, took their veterinarians advice and chose to end her suffering via in-home euthanasia.  As a practicing physician, the ability to choose to end Akeela’s suffering brought up thoughts of his oath not to “administer a poison to anybody when asked to do so nor … suggest such a course.”

Removing Obstacles to a Peaceful Death

Elder Law Journal:  We all will die, but the American health care system often impedes a peaceful death. Instead of a quiet death at home surrounded by loved ones, many of us suffer through overutilization of sometimes-toxic therapeutic interventions long past the time when those interventions do more good than harm. This article proposes revisions to health professional training and payment policy to eliminate as much as possible physical and existential suffering while progressing through the terminal phase of illness.”

Article on Rational Patient Apathy

Wills, Trusts, & Estate Prof Blog:  “Patients with serious or life-threatening illness are frequently asked to make complex, high stakes medical decisions. The impact of anxiety, low health literacy, asymmetric information and inadequate communication between patients and health care providers, family pressures, rational apathy by health care providers, cognitive biases of both patients and health care providers, as well as other factors, make it quite difficult for patients in these circumstances to process and comprehend the strategic uncertainty and resultant risks and benefits of, and alternatives to, whatever therapeutic or life-prolonging treatment physicians are offering.”

The Conversation Your Family Must Have Today

The Street:  “Adult children and their parents are normally hesitant to discuss money or financial affairs as these subjects can be awkward. Even though such conversations are difficult it is better to have them while both parties can meaningfully engage in the discussion.

What do I mean by both parties can engage in the discussion? I mean the parents have the cognitive or mental capacity to communicate their wishes to their adult children.

According to a report by the Alzheimer's Association, 5.2 million — or 1 in 8 Americans — over the age of 65 have Alzheimer's disease. The same report also cites a study which estimates 13.9% of Americans over age 71 suffer from some form of dementia.

For the aging parent getting your financial house in order is the responsible thing to do for yourself and your children. Likewise, adult children would be wise to engage in this dialogue before capacity becomes an issue. When an aging parent is struck with Alzheimer's disease or another from dementia it will be a draining and emotional experience for the adult child. Without proper planning it will be even more stressful.”

Three Must Have Documents Everyone Should Have

There comes a point in every person's life when it is time to sit back and take stock of what you have accomplished.  This could be a beautiful family, a lovely home or a thriving business.  Whatever the source of your pride, it makes sense to protect it, just like you would any other asset.  You protect your home and your business with insurance, but what about yourself and your family?

Protecting yourself and your family doesn't have to be difficult or expensive.  But it does need to be done.  Here are the three must have documents everybody should have to protect themselves and their families:

1. Last Will & Testament

You probably know what this document is.  It disposes of your assets after your death.  Without a Will, your state of residence determines how your assets should be divided.  But can you really depend on some ambiguous state laws to protect your family?  Wouldn't it be better to lay everything out in such a way that ensures your wishes are followed?  This is what a Will does for you.

What many people don't know about Wills is that a Will is where you name the guardian for your minor children.  Don't have a Will?  Now the state gets to pick a guardian for your kids.  Do you trust the state to pick the best possible person to raise your children?  I don't know many people who would.

Your Will also names the Personal Representative of your estate.  This is the person responsible for administering your estate by paying your final taxes, paying any creditors and collecting and distributing your property.  Once again, without a Will, the state […]

An Estate Plan Is More Than Just A Will

The Journal:  “Far too many people think, “I don't have an estate. I don't need to do any estate planning.”

But there are more aspects to estate planning than just signing a will. Medical, current financial and other decisions also play an important role.

The differences between the similar sounding living will and living trust often causes confusion. The first is for medical purposes; the other is financial.

A living will provides authority for certain last medical measures when in a terminal condition and has nothing to do with transferring assets or property after death.”

Starving a Parent to Get Inheritance?

It's hard to believe that someone would purposely starve a parent in order to collect the inheritance.  I recently read an Estate of Denial article called Slowly Starving Her Mother to Get the Inheritance. Unfortunately, elder abuse cases are not uncommon throughout the country.  Money is a powerful motivator and unfortunately, some people will stoop to the lowest of levels just to collect.

In the article, a woman was making medical decisions on behalf of her aging mother.   The woman, who had suffered from drug and alcohol problems, had very little income.  Her mother, however, had assets worth over $500,000.  When the woman moved in with her mother to act as the mother's caretaker, the woman began starving her mother.  As time went on, the mother became very ill and lost a significant amount of weight.  After a call from a concerned neighbor, Adult Protective Services got involved and insisted that the mother be moved to a care facility.  Finding the cheapest facility she could find, the woman dumped her mother at the facility with no clothes, and instructions to not give her mother any food or let her out of bed because she was dying.  She also instructed the care facility workers that no one was to talk to any of the mother's friends or relatives about her mother.  Unbelievably, the woman was actually trying to slowly kill her mother.

Thankfully, in this case there were people who cared enough to realize what was going on and get the mother some help.   Not surprisingly, mom wasn't dying after all.

How was this woman able to do these horrible things to her mother?  She was named as […]

2016-12-13T20:33:32-08:00March 7th, 2012|Healthcare Directives, Powers of Attorney|

I Made a Will… Now What?

Question:  I made a Will, now what do I do with it?  Where should I keep it and who should I tell about it?

Answer:  You may have the best drafted, most well thought out Last Will and Testament, but it will be useless if no one can find it.  There is no central database for Wills or estate plans.  This means that the only way your loved ones will know about your Will and where to find it is if you tell them!

First, you should put your original Will and other estate planning documents in a safe place, like a safe deposit box.  Tell the appropriate people that you have an estate plan and it can be located in your safe deposit box.  You probably want to tell your spouse, children, parents or whoever would be the person searching for your estate plan should something happen to you.  We also suggest making copies of your Will and other estate planning documents and giving them to person who you have picked to be responsible for administering your estate (your personal representative).  Alternatively, you can scan the documents to your computer and email them to trusted people, or put the documents on a CD and give the CD to trusted people.   This is an important step, not only with your Will, but also if you have healthcare directives or powers of attorney.  If you created a Healthcare Power of Attorney, make sure you give a copy to the person you designated as your healthcare agent.  That way the person knows they have been nominated as your healthcare agent, and know where to find the document giving them authority to make decisions […]

2016-12-13T20:33:36-08:00January 12th, 2012|FAQ, Healthcare Directives, Powers of Attorney, Wills|

New Years Resolution: Create A Basic Estate Plan

NJ.com:  Today Your Legal Corner will address “Basic Estate Planning.”

 What will you do with this New Year given? Perhaps you want to lose 10 pounds, make plans for a spring garden, change jobs, travel to Europe or dedicate time to a coveted project. Just think of the possibilities this New Year brings.

 One goal to definitely include is to review or create an estate plan. A basic estate plan consists of completing an inventory of present assets, defining goals, relationships, and realities; and then developing a plan of action.

 Inventory Assets

 Generally, most estate planning begins with an inventory of the assets. If you would like to receive an Inventory Packet, simply request one by email, phone or letter and it will be provided, free of charge.

 The Inventory Packet is a guide used to list assets, state where assets are held, and define preferences and relationships. Once completed, the Inventory Packet will aid in deciding what type of estate plan is needed. The Inventory packet should be kept with the will.

 Goals, Relationships and Realities

 Quite often, the difficult questions have not been answered. While it is difficult to predict the future, estate plans must still be created with goals, relationships and realities in mind. For example, what are your long term goals? Where would you choose to reside as you age? What does retirement look like for you? Will you travel? Will you continue to work? Do you have long-term care insurance?

 Each estate plan should address the possibility of nursing home living. At the very least, have a plan in place as to with whom or where you would reside in […]

Must Have Documents: Healthcare Directives

Los Angeles Times:  “I could show you case after case,” said Dr. Neil S. Wenger. “I could bet you million-to-1 odds these patients would not want to be in this situation.”

He was talking about patients in critical condition who are “attached to machines, being kept alive” in hospitals, many of them suffering.

A common reason for that, said Wenger, director of UCLA's Health System Ethics Center, is that fewer than one-third of us make our healthcare wishes known in advance of critical illness or injury. So if we end up comatose after an accident, or with severe memory loss in old age, we're kept alive, regardless of the cost and regardless of what our wishes might be or how grim the prognosis.

It's understandable. Nobody wants to think in advance about life ending. In our satisfied state of denial, we want to believe medical advances will keep us healthy until we die in our sleep at a ripe old age. But death doesn't always come on our terms, and failing to face up to other possibilities can put crushing burdens on loved ones — not to mention that soaring end-of-life medical costs are at the center of the national budget crisis.

“We use healthcare resources far out of proportion to any other country on the planet,” said Wenger, who researches elder care for the Rand Corp. “We need to have a conversation about where society wants to put its resources [and we] might decide there are certain kinds of life extension that are not as important to us as educating kids and having adequate infrastructure.”

Of course, none of us individually can solve all of these societal […]

2016-12-13T20:33:37-08:00December 16th, 2011|Healthcare Directives|

Questions You Should Ask Your Estate Planning Attorney

US News & World Report:  Because you've worked hard to create a secure and comfortable lifestyle for your family, you'll want to ensure that you have a sound financial plan that includes trust and estate planning. With some forethought, you may be able to minimize gift and estate taxes and preserve more of your assets for those you care about.

A qualified financial professional and tax professional can help ensure you are minimizing taxes and maximizing gains for your heirs. You can bring this four-part checklist to your initial meeting to discuss how to make your plan comprehensive and up-to-date.

Part 1: Communicating your wishes

•Do you have a will?

•Are you comfortable with the executor(s) and trustee(s) you have selected?

•Have you executed a living will or healthcare proxy?

•Have you considered a living trust to avoid probate?

•If you have a living trust, have you titled your assets in the name of the trust?

Part 2: Protecting your family

•Does your will name a guardian for your children if both you and your spouse are deceased?

•If you want to limit your spouse's flexibility regarding the inheritance, have you created a Q-TIP trust?

•Are you sure you have the right amount and type of life insurance for survivor income, loan repayment, capital needs, and all estate settlement expenses?

•Have you considered an irrevocable life insurance trust to exclude the insurance proceeds from being taxed as part of your estate?

•Have you considered creating trusts for family gift giving?

Read the rest of this article here.

5 Big Estate Planning Mistakes You Don’t Want To Make

Forbers:  Applying Murphy’s Law, “If anything can go wrong, it will,” to estate planning is crucial because in this case when something does go wrong, it goes very wrong and you aren’t around to fix it. Murphy’s Law at first glance appears to be overly pessimistic but the original intention of Capt. Edward A. Murphy wasn’t to depress anyone; it was to have a successful outcome. Edward Murphy was an engineer who was involved in the U.S. Army Air Force Aero Medical Laboratory’s project MX-981. Project MX-981 was designed to test the effects of deceleration forces of high magnitude on the human body. When a technician wired all of the strain gauges backwards, Capt. Murphy was heard muttering his famous phrase and the rest is history. Since they assumed mistakes were being made and things would go wrong, the attention to detail was heightened and the inevitable errors were caught. When asked during a press conference how it was that nobody had been severely injured during the tests, Dr. John Stapp credited Murphy’s Law, indicating that it was important to consider all the possible things that could go wrong before conducting a test, and then counteracting them.

A few years ago, I was going to give a financial education workshop to a group of petroleum engineers near Bakersfield, California and I happened to meet someone on the airplane who regularly presented to engineers. He gave me some advice to challenge them to find something wrong in the workshop—a statistic or a calculation with an incorrect formula, something like that. First of all, my flight companion mentioned, they are doing that anyways, but when they don’t find something, credibility instantly increases, and if […]

Baby Boomers Aren’t Estate Planning

ABA Journal:  The Associated Press has a story out discussing how most boomers don’t have living wills. They also are light in other estate planning areas. Estate of Denial® is often the first in line willing to point out probate abuse that occurs via the use of instruments like wills, trusts, guardianships and powers of attorney. Living wills and healthcare proxies can bring their complications as well. That said, we also would never want our message to be misconstrued as being against proper estate planning.

Though the current probate system is highly problematic, the answer lies in fixing it, not in the avoidance of action. “The fix” is no easy task, but it is critical if America wants to continue on an ideological path similar to that which has served us well for centuries, a path which respects founding values like property rights, individual liberty and the rule of law.

In the meantime, our recent column, Can Texans (or anyone) protect themselves from probate abuse?, asked “what can people do to protect themselves, their assets and their heirs?” And our answer was a disconcerting “not a whole lot.”

2011-11-28T11:47:58-08:00November 21st, 2011|Estate Planning, Healthcare Directives, Trusts, Wills|

Common Estate Planning Mistakes And How To Avoid Them

Online Athens:  I want to highlight some of the most common estate planning mistakes I think people routinely make (knowing that I can’t possibly cover them all in one column). You will notice that I’m not going to discuss the estate tax beyond saying that very few people are subject to it and that it can be effectively managed by an attorney and financial planner with expertise.

In my experience, No. 1 and No. 3 are the root causes of the other issues.

1. Failure to plan: I am constantly surprised to see how many people do not have basic estate planning documents in place. The statistics consistently say more than 50 percent of Americans do not have a will, so if you happen to have one, the odds are that one of your neighbors does not.

Estate planning is another one of those areas in financial planning that plays to our desire to procrastinate. The only immediate payoff we have to getting the core documents in place is to quiet that inner voice that constantly says, “I need to take care of this.”

With proper planning, many negative consequences such as not passing your assets as you wish, strained family relationships and even a lawsuit can be avoided.

Simply stated, dying without a will is easy, but picking up the pieces afterward is not. On the other hand, getting a basic will in place should not be complicated.

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