Archive for Living Will
JOINT BANK ACCOUNTS
We constantly preach that how an asset is titled to is the most important factor in determining whether an estate plan will work. Many people do not give sufficient thought to coordinating the way their assets are titled with the way they want those assets to be handled in the event of a disability or after death. A glaring example is the “joint bank account.”
Florida law provides that any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entireties unless otherwise specified in writing. One must be very careful when opening a bank account to review the bank’s form to make certain that the box checked “tenancy by the entireties” is checked, because if it is not, or if a different box is checked, then this presumption likely will disappear. What is important for married couples to understand is that bank accounts owned as tenancy by the entireties are owned by both spouses. This means that one spouse may not transfer money from such an account without the consent of the other spouse. On the other hand, if the accounts were joint tenancies with the right of survivorship, either spouse could terminate that joint tenancy by transferring the funds to another account or simply by withdrawing the funds altogether.
So, you can see that checking the right (or wrong) box on what appears to be a fairly harmless bank form can make a big difference in the respective rights of a husband and wife to the funds in that account.
PLANNING FOR SPECIAL ITEMS IS ESSENTIAL PART TWO – COLLECTIBLES
Last week, we wrote about a unique automobile that sparked a legal battle and ultimately fell into the wrong hands due to a lack of planning. We encouraged everyone who owns any kind of special item to plan now to avoid expense and stress later. This is especially true for collectible items, such as art, coins, stamps, antiques, etc.
Early planning for collections is crucial due to tax and valuation issues. When a collector passes away, the IRS wants to know how much his estate is worth, including collectibles. Although it can be difficult to determine the value of a collection, it is an important consideration for both lifetime and estate planning. If you have a good idea of what the IRS thinks your collectibles are worth, your estate planning attorney will be better able to advise you on estate and gift tax considerations. Depending on your situation, you may need to consider gifting or selling your collection during your lifetime.
Of course, many collectibles hold sentimental value for their owners, making tax and market value concerns secondary to the desire to keep the collection in the family or intact. When this is the case, timely planning is again the best solution. As a first step, we recommend evaluating your family’s appreciation of your collection and their willingness to maintain it. As with all other aspects of planning, knowing your family and sharing that knowledge with your lawyer will help you get the best plan possible.
APRIL IS DONATE LIFE MONTH
The statistics speak volumes:
• More than 100,000 men, women and children currently require life-saving transplants
• Every 10 minutes, another name is added to the National Organ Transplant Waiting List
• On average, 18 people die each day due to the lack of organs available for transplant
National Donate Life Month was instituted by Donate Life America and its members in 2003 to help address this tragic situation. As estate planning attorneys, we are well aware of the stress families endure hoping for a loved one’s potentially life-saving organ transplant—and the anguish they suffer when one is not available in time.
We therefore welcome this initiative and suggest, if you haven’t made known your wish to be an organ donor, or if you’ve only put it on your driver’s license, that it’s a good idea to fill out an organ donor card or register as an organ donor at www.donatelifeflorida.org. If you take this additional step, you can specify which organs you would or would not like to donate and it will be easier for health care professionals to determine your organ donor status.
We also applaud the efforts of participants in National Healthcare Decisions Day (NHDD), which falls on April 16. The focus of NHDD is the importance of planning for future care through advance directives such as health care powers of attorney and living wills. Together, these initiatives go a long way toward creating greater public awareness about the need for, and benefits of, proper planning and communication about one’s health care wishes.
While organ donation and health care advance directives are deeply personal decisions, we hope you will consider the importance of making your wishes known in advance, discussing them with loved ones, and making sure they are both legally documented and easily accessible during an emergency, or in the event of incapacity. If you would like to make changes to your advance directives, or any other updates to your estate plan in general, we are here to assist you.
HOW DOCTORS PLAN FOR DEATH
A recent article in The Wall Street Journal discussed how and why doctors die differently than most of their patients. Although the article is generally interesting, there was one statistic that caught our attention: a survey of doctors showed that 64% of them had planned for potential incapacity by executing an advanced directive. This figure is remarkable because, in general, only 20% of Americans have advanced directives.
Advanced directives are documents that provide instructions for how you would like medical decisions to be made if you are unable to make them yourself. These documents are a way to plan for future incapacity, whether it be a temporary coma or terminal condition.
Doctors encounter end-of-life conditions and terminal illness more often than the average person. They also have significantly more knowledge about the side effects and effectiveness of available treatments. According to the article, that is why doctors often decline medical procedures in favor of quality of life. We think that it also explains why so many of them plan for incapacity better than the rest of us.
Please feel free to contact us for more information about advanced directives and planning for incapacity.
If you are interested in reading the full article, you can find it here: http://online.wsj.com/article/SB10001424052970203918304577243321242833962.html?KEYWORDS=why+doctors+die
Common Estate Planning Myths and Superstitions
In honor of today’s holiday, Groundhog Day, we wanted to share some common myths and superstitions about estate planning. Most Americans know the story of Groundhog Day: if a groundhog comes out of its burrow this morning and sees its shadow, it will retreat back into the burrow and six more weeks of winter weather will follow. On the other hand, if the groundhog does not see its shadow and remains aboveground, winter will soon end.
Most of us recognize that the ability of a groundhog to accurately forecast the weather is just a myth. (The reality is that groundhogs get it right only 39% of the time.) However, many people still believe in the following estate planning myths and superstitions (or at least use them as an excuse not to plan):
#1: You are more likely to die once you complete your estate planning. This is simply absurd; generally, the only people who die shortly after executing an estate plan are people who waited ALMOST too late to plan in the first place.
#2: Estate planning is only for the wealthy. When you hear the word “estate,” do you think of a palatial mansion or fine jewels? The truth is that if you own a home, a car, a bank account, life insurance, etc., then you have an “estate”.
#3: Estate planning only matters after death. A big part of the estate planning we do at our firm is planning for possible future disability. Wouldn’t you like to leave directions for how you want to be treated if you become incapacitated as well as for who gets your stuff when you’re gone? What about requests for who will care for you and/or your children?
Please feel free to post comments on our Facebook or Twitter or make an appointment if you have individual questions or concerns.
Cramer Law Center offers full estate planning services including wills, trusts, durable powers of attorney, health care surrogate designations, living wills, designations of preneed guardian, and more.
PLANNING AS AN UNMARRIED INDIVIDUAL
Many people think that there is no need to make an estate plan until or unless they get married. However, our firm recently handled a case that illustrates why buying into this planning myth can be very stressful and expensive for your loved ones.
Our client, we’ll call him “Bill”, was an unmarried man in his forties with a long-term girlfriend but no children. His only living relatives were siblings. Bill went into a coma after having an unexpected allergic reaction that caused him to have multiple cardiac arrests. He was put on life support and given next to no chance of recovery.
Bill did not have any planning documents in place. He had no will and, more importantly, he had not executed any document granting decision-making authority to a loved one in the event of his incapacity. Since Bill had no parents, children, or spouse, there was no one who had legal authority to take care of his property or to decide whether he should remain on life support.
Bill’s siblings had no recourse but to seek a guardianship over their brother. This expensive process led to stress and family strife over what Bill would have wanted to happen to him in this situation. Bill’s girlfriend, the person most likely to know what Bill wanted, was not even involved. Ultimately, Bill died before a full guardianship could be put in place.
Every person, especially unmarried individuals, should consider executing the following basic planning documents to help their loved ones avoid the “Bill” situation:
Designation of Health Care Surrogate (Health Care Power of Attorney)
Durable Power of Attorney
Last Will and Testament
We are here to explain these planning tools and to guide you through the estate planning process, so that your family will not suffer the needless expense and stress that Bill’s family endured.
ELDER ABUSE: SEVEN WARNING SIGNS
Many of us have elderly parents or grandparents who may be susceptible to abuse. Here are some warning signs to consider:
(1) Deliberate isolation of an older adult which results in the caregiver having total control.
(2) Sudden appearance of previously uninvolved relatives claiming their rights to an elder’s affairs and possessions.
(3) Power of Attorney given or recent changes of Will when the person is incapable of making such decision.
(4) Sudden changes in bank accounts or banking practice, including unexplained withdrawals of large sums of money by a person accompanying the elder.
(5) Abrupt changes in Real Estate Deeds or other Financial Documents.
(6) Missing personal belongings such as art, silverware or jewelry.
(7) Placement in nursing home or residential care facility which is not commensurate with alleged size of estate.
An excellent way to protect against potential abuse is to have strong estate planning documents in place and open communication about the elder’s wishes and the contents of those documents with close family members. If you have a concern about a family member or close friend, call us for a confidential consultation.
WHAT IF THE MAYANS ARE WRONG!
I am sure by now everyone is familiar with the idea that the Mayan Calendar ends in 2012, and, according to the History Channel and other news media, so do we! What if this theory is incorrect?! What if, there still is life on earth after 2012? Will you wish you had planned for the future to protect yourself and your family from disability, an untimely death or paying unnecessary taxes? Or, will you just assume the future will take care of itself?
It just makes sense to take care of yourself and your family now, by making sure you have a will or trust, healthcare directives, guardians for your children, power of attorneys, etc.
There seems to be a general malaise in our country and people are terrified to move forward…but, you can’t move backward! Log onto our website and see all the services we provide. Be brave, plan for the future!
END OF LIFE PLANNING
Two of the statements I hear most frequently from seniors are “I don’t want to go into a nursing home” and “I don’t want to be put on machines”. However, without proper legal documents in place, your medical decisions may end up out of your hands. This delicate subject seems to be difficult for many families to even bring up. Although we know there is a need to prepare, we tend not to want to think about someone in the family becoming terminally ill or tragically injured. Sometimes a diagnosis comes that leaves a family time to prepare, but many times there is an unexpected crisis which can leave a family reeling to making decisions. Many people lack understanding or misunderstand advanced health care directives. We are happy to explain the designation of healthcare surrogate, living will, power of attorney or even how guardianship works.
If you or someone you know has ever made one of the two statements at the beginning of this article, we invite you to stop in and talk with us. There is never a charge for an initial consultation to explore your estate planning goals.