A Living Will is a Huge Benefit

September 20, 2022

Having a living will is a huge benefit for yourself and your loved ones. During a medical crisis, families frequently must make decisions quickly regarding whether to withhold or provide life-sustaining treatments. A living will is a part of advance care planning. It’s a legal document that provides specific instructions on how to carry out your wishes to receive or decline such treatments when you otherwise can’t communicate those wishes yourself, explains, Forbes’ recent article entitled “How Does A Living Will Work?”

Your estate plan may already include a durable power of attorney for health care, which is a legal document that lets your designated agent or proxy make medical decisions for you if you become incapacitated. However, unlike that document, the instructions in a living will can be used only when the person named in the living will has no hope of recovery or cure.

A living will provides limited authority to an agent on behalf of the principal who’s no longer able to communicate their preferences to withhold or withdraw artificial means of life support or life-sustaining treatments. A living will should have your wishes noted for receiving or going without treatment when your condition isn’t expected to improve and treatment would extend your life for only a limited time.

A living will is designed to apply only in very limited situations when the principal who signed the document has an incurable or irreversible medical condition or conditions that will most likely result in the principal’s death within a short period of time—typically six months or fewer.

Life-sustaining treatments addressed in a living will may include:

Ventilators
Heart-lung machines
Nutrition via a feeding tube
Hydration via feeding tube or IV
Cardio-pulmonary resuscitation (CPR) or other extraordinary measures; and
Dialysis.

Living wills can also address issues, like pain management and palliative care. You may even include provisions such as “I would prefer to die at home” in a living will.

Provide as much information as you can to make certain that your proxy isn’t making the decision for you, but rather your wishes and words are moving through your proxy. A living will is a huge benefit to your loved ones. The more information you can provide in your living will to your proxy to illustrate for them the type of care that you’d want to receive or decline, the better. If you would like to learn more about living wills and other medical directives, please visit our previous posts.

Reference: Forbes (Aug. 18, 2022) “How Does A Living Will Work?”

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Living Will and DNR are different Documents

August 17, 2022

A living will and a Do Not Resuscitate Order, known as a DNR, are very different documents. However, many people confuse the two. They both address end of life issues and are used in different settings, according to the article “One Senior Place: Know the difference between ‘living will’ and ‘do not resuscitate’” from Florida Today.

What is a Living Will?

A living will is a written statement describing a person’s wishes about receiving life-sustaining medical treatment in case of a terminal illness if they are a patient near death or in a persistent vegetative state. This includes choices such as whether to continue the use of artificial respiration, a feeding tube and other highly intensive means of keeping a person alive.

The living will is used to make your wishes clear to loved ones and to physicians. It is prepared by an estate planning elder care attorney, often when having an estate plan created or updated. To ensure it is valid and the instructions can be carried out, be sure to have this document created properly.

What is a DNR?

A DNR is a medical directive used to convey wishes to not be resuscitated in the event of respiratory or cardiac arrest. This document needs to be signed by both the patient and their treating physician. It’s often printed on brightly colored paper, so it can be easily found in an emergency.

The DNR should be placed in a location where it can be easily and quickly found. In nursing homes, this is typically at the head or foot of the bed. At home, it’s often posted on the refrigerator.

The DNR needs to be immediately available to ensure that the patient’s last wishes are honored.

A key mistake made by well-meaning family members is to have the DNR with someone else, rather than at home or at the bedside of the patient. If the DNR cannot be found and emergency medical responders arrive on scene, they are legally bound to provide CPR or other medical care to revive the patient.

When the DNR is available, the emergency responders will not initiate CPR if they find the patient in cardiopulmonary arrest or respiratory arrest. They may instead provide comfort care, including administering oxygen and pain management.

If a person is admitted to the hospital, their living will is placed on the chart. Depending on the state’s laws, a certain number of physicians must agree the patient is in a persistent vegetative state or has an end-state condition and can no longer communicate. At that point, the terms of the living will are followed.

In addition to having these documents created with your estate plan, make sure that family members know where they can be found. A living will and a DNR are different documents and your estate planning attorney can help you address which is the best option for your current situation. If you would like to learn more about living wills, DNRs and other medical directives, please visit our previous posts.

Reference: Florida Today (July 19, 2022) “One Senior Place: Know the difference between ‘living will’ and ‘do not resuscitate’”

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Even Young Adults Need a Will

August 16, 2022

Even young adults need a will. Everyone, age 18 and older, needs at least some basic estate planning documents. That’s true even if you own very little. You still need an advance health care directive and a power of attorney. These documents designate agents to make decisions for you, in the event you become incapacitated.

The Los Angeles Daily News’ recent article entitled “Estate planning, often overwhelming, starts with the basics” reminds us that incapacity doesn’t just happen to the elderly. It can happen from an accident, a health crisis, or an injury. To have these documents in place, you just need to state the person you want to make decisions for you and generally what those decisions should be.

An experienced estate planning attorney will help you draft your will by using a questionnaire you complete before your initial meeting. This helps you to organize and list the information required. It also helps the attorney spot issues, such as taxes, blended families and special needs. You will list your assets — real property, business entities, bank accounts, investment accounts, retirement accounts, stocks, bonds, cars, life insurance and anything else you may own. The estimated or actual value of each item should also be included. If you have life insurance or retirement plans, attach a copy of the beneficiary designation form.

An experienced estate planning attorney will discuss your financial and family situation and offer options for a plan that will fit your needs.

The attorney may have many different solutions for the issues that concern you and those you may not have considered. These might include a child with poor money habits, a blended family where you need to balance the needs of a surviving spouse with the expectations of the children from a prior marriage, a pet needing ongoing care, or your thoughts about who to choose as your trustee or power of attorney.

There are many possible solutions, and you aren’t required to know them before you move ahead with your estate planning.

Young adults need a will. If you are an adult, you know generally what you own, your name and address and the names of your spouse and children or any other beneficiaries you’d like to include in your plan. So, you’re ready to move ahead with your estate planning. The key is to do this now and not procrastinate. If you would like to learn more about estate planning for young adults, please visit our previous posts.

Reference: Los Angeles Daily News (July 24, 2022) “Estate planning, often overwhelming, starts with the basics”

Photo by Tima Miroshnichenko

Estate planning is vital for Unmarried Couples

July 19, 2022

Traditional or non-traditional couples have the option of marrying, but not all couples wish to, according to a recent article from Kiplinger, “Marriage: When You’d Rather Not.” Planning for a life together without the legal protections provided by marriage means couples of all kinds who decide not to marry must be sure to do estate planning. Otherwise, they may find themselves in life-altering situations concerning property ownership, parental rights, and inheritances. Estate planning is vital for unmarried couples. It’s a gift to give each other.

Start with a last will and testament. Unmarried couples without children need a will, if they want to leave each other property. Otherwise, the laws of most states will have property going to the legal next-of-kin, which might be parents, siblings, or cousins. No matter how many decades the couple has been together, if they are not married, they have no legal inheritance rights.

Other estate planning basics are important to protect each other while living. Without documents like a financial power of attorney and a health care proxy for both partners, medical and other health care providers might not allow your partner to make critical health decisions on your behalf. For couples where families disapprove of their unmarried status, asking a parent to make these decisions, especially in an emergency situation, could magnify a crisis or worse, lead to a result neither partner wants.

Accounts with named beneficiaries, which typically include life insurance policies, retirement funds, investment accounts and similar financial products, aren’t distributed by the terms of your will. Instead, they pass directly to beneficiaries on death. Even traditional married couples run into trouble when beneficiary designations are not updated.

Every time there is a life change, including death, birth, break-up, or any big life event, updating beneficiaries is a good idea for all concerned.

Unmarried couples with children need to be especially diligent about estate planning. If a biological parent dies, their assets go to their biological children. However, when the non-biological parent dies, all of their assets could go to other relatives, unless a will is in place and beneficiaries are properly named. What about if the non-biological parent takes the step of legally adopting the children? They should still check on their parental rights. If accounts do not have beneficiaries named, the assets will go to next of kin, a parent or sibling and not the child or partner.

Home ownership is another financial issue to tackle for unmarried couples. They need a document clearly stating how the home is owned, how much each invested in the home, who is responsible for mortgage and tax payments, how to divide the home if it’s sold and who has the right to live in the home if the couple breaks up or if one dies or becomes disabled. If a home is solely in one person’s name and the other partner dies, the surviving partner may end up being evicted if the right protections are not in place.

For unmarried couples, meeting with an estate planning attorney is vital to protect each other now and in the future. If you would like to read more about planning for unmarried couples, please visit our previous posts.

Reference: Kiplinger (June 16, 2022) “Marriage: When You’d Rather Not.”

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Deciding where to Store your Documents is Critical

July 5, 2022

It’s a common series of events: an elderly parent is rushed to the hospital in the middle of the afternoon and once children are notified, the search for the Power of Attorney, Living Will and Health Care Power of Attorney begins. It’s easily avoided with planning and communication, according to an article from The News-Enterprise titled “Give thought to storing your estate papers.” However, just because the solution is simple doesn’t mean most people address it. Deciding where to store your documents is critical.

As a general rule, estate planning documents should be kept together in a fire and waterproof container in a location known to fiduciaries.

Most people think of a bank safe deposit box as a protected place. However, it’s not a good location for several reasons. Individuals may not have access to the contents of the safe deposit box, unless they are named on the account. Even with their names on the account, emergencies don’t follow bankers’ hours. If the Power of Attorney giving the person the ability to access the safe deposit box is inside the safe deposit box, bank officials are not likely to be willing to open the box to an unknown person.

A well-organized binder of documents in a fire and waterproof container at home makes the most sense.

Certain documents should be given in advance to certain agencies or offices. For instance, health care documents, like the Health Care Power of Attorney and Advance Medical Directive (or Living Will) should be given to each healthcare provider to keep in the person’s medical record and be sure they are accessible 24/7 to health care providers. Make sure that there are copies for adult children or whoever has been designated to serve as the Health Care Power of Attorney.

Power of Attorney documents should be given to each financial institution or agency in preparation for use, if and when the time comes.

It may feel like an overwhelming task to contact banks and brokerage houses in advance to make sure they accept a Power of Attorney form in advance. However, imagine the same hours plus the immense stress if this has to be done when a parent is incapacitated or has died. Banks, in particular, require POAs to be reviewed by their own attorneys before the document can be approved, which could take weeks to complete.

Depending upon where you live, Durable General Powers of Attorney may be filed at the county clerk’s office. If a POA is filed but is later revoked and a new document created, or if a fiduciary needs to convey real estate property with the powers conferred by a POA, the document at the county clerk’s office should be updated.

Last will and testaments are treated differently than POA documents. Wills are usually kept at home and not filed anywhere until after death.

Each fiduciary listed in the documents should be given a copy of the documents. This will be helpful when it’s time to show proof they are a decision maker.

Having estate planning documents properly prepared by an experienced estate planning attorney is the first step. Step two is ensuring they are safely and properly stored, so they are ready for use when needed. Deciding where to store your documents is critical to ensuring your planning happens the way you designed. If you would like to learn more about estate planning documents, please visit our previous posts.

Reference: The Times-Enterprise (June 11, 2022) “Give thought to storing your estate papers”

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The Estate of The Union Season 3|Episode 10

The Estate of The Union Season 2, Episode 2 – The Consumer’s Guide to Dying is out now!

June 21, 2022

The Estate of The Union Season 2, Episode 2 – The Consumer’s Guide to Dying is out now!

Dealing with a funeral home after the death of a loved one is something no one relishes.

In this episode of the Estate of the Union, we interview Nancy Walker, the Executive Director of the Funeral Consumers Alliance of Central Texas, a non-profit that helps people navigate this unpleasant task. Nancy hits on the perils of the process and even discusses “natural burials.” Learn what the organization is and how they are an important resource for making educated choices and arrangements prior to end of life.

This is fun, innovative and informative. Despite the topic, you will love it!

To learn more about Nancy Walker and the Funeral Consumers Alliance of Central Texas, please visit their website: www.fcactx.org

We’ve got fifteen episodes posted and more to come. We hope you will enjoy them enough to share it with others. These are available on Apple, Spotify and other podcast outlets. Click on our logo to listen on Spotify.

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 2, Episode 2 – The Consumer’s Guide to Dying can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. Please click on the link below to listen to the new installment of The Estate of The Union podcast. We hope you enjoy it.

Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

Be certain You’ve got Legal Documents for your College Kid

June 14, 2022

There are few things more exciting as a parent than seeing your child come of age and embark on adulthood. That often means leaving home to start a career or enter college. It is at this stage that you need to be certain you’ve got legal documents in place for your college kid. The Press-Enterprise’s recent article entitled “Legal documents for young adults” describes some of the important legal and estate planning documents your “kid” (who’s now an adult) should have.

HIPAA Waiver. This form allows medical personnel to provide information to the parties you’ve named in the document. Without it, even mom would be prohibited from accessing her 19-year-old adult’s health information—even in an emergency. However, know that this form doesn’t authorize anyone to make decisions. For that, see Health Care Directives below.

Health Care Directive. Also known as a health care power of attorney, this authorizes someone else to make health care decisions for you and details the decisions you’d like made.

Durable Power of Attorney. Once your child turns 18, you’re no longer able to act on their behalf, make decisions for them, or enter into any kind of an agreement binding them. This can be a big concern, if your adult child becomes incapacitated. A springing durable power of attorney is a document that becomes effective only upon the incapacity of the principal (the person signing the document). It’s called a “springing” power because it springs into effect upon incapacity, rather than being effective immediately.

A durable power of attorney, whether springing or immediate, states who can make decisions for you upon your incapacity and what powers the agent has. The designated agent will typically be able to access bank accounts, pay bills, file insurance claims, engage attorneys or other professionals, and in general, act on behalf of the incapacitated person.

They’ll always be your babies, but once your child turns 18, he or she is legally an adult.

Be certain that you’ve got the legal documents in place to be there for your college kid in case of an emergency.

Remember a spring break, when they’re home for summer after their 18th birthday, or a senior road trip are all opportunities when these documents may be needed. If you would like to learn more about estate planning for young adults, please visit our previous posts.

Reference: The Press-Enterprise (April 2, 2022) “Legal documents for young adults”

Photo by Anastasiya Gepp

Documents You need if You become Incapacitated

May 26, 2022

There are documents you need if you become incapacitated. If advance planning has been done, your family will have the legal documents you need. Just as importantly, they will know what your wishes are for incapacity and end-of-life care. If there was no planning, your loved ones will have to start with a lengthy application to the court to have someone named a guardian. They are a person who has legal authority to make medical decisions on your behalf.

Having a plan in place beforehand is always better, explains the article “If I become incapacitated, who makes healthcare decisions?” from Waterdown Daily Times.

Another reason to have these documents if you become incapacitated: the court does not require the guardian to be a family member. Anyone can request a guardian to be appointed for another incapacitated individual, whether incapacity is a result of illness or injury. If no planning has been done, a guardianship must be established.

This is not an easy or inexpensive process. A petition must be filed, and the person in question must be legally declared incapacitated. In some cases, these filings are done secretly, and a guardianship maybe established without the person or their family even knowing it has occurred.

There are also many cases where one family member believes they are better suited for the task, and the family becomes embroiled in controversy about who should serve as the guardian.

The entire problem can be resolved by working with an experienced estate planning attorney long before incapacity becomes an issue. A comprehensive estate plan will include a plan for distribution of assets (Last Will and Testament), Power of Attorney, Healthcare Power of Attorney and a Living Will.

These last two documents work together to describe your wishes for end-of-life care, medical treatment and any other medical issues you would want conveyed to healthcare providers.

Unfortunately, the pandemic revealed just how important it is to have these matters taken care of. If you did create these documents in the last few years, it would be wise to review them, since the people in key roles may have changed. While the idea of being on a respirator may have at one time been a clear and firm no, you may feel otherwise now.

A Healthcare Power of Attorney is an advance directive used to name a person, who becomes your “agent,” to make healthcare decisions. If there is no Healthcare Power of Attorney, physicians will ask a family member to make a decision. If no family can be reached in a timely manner, the court may be asked to appoint a legal guardian to be the decision-maker. In an urgent situation, the physician will have to make the decision, and it may not be the decision you wanted.

The Living Will explains your wishes for end-of-life care. For instance, if you become seriously ill and don’t want a feeding tube or artificial heart machine, you can say so in this document. You can even state who you do and do not wish to visit you when you are sick.

The best advice if you become incapacitated is to have a complete estate plan, including these vital documents you need, created by an experienced estate planning attorney. If you have an estate plan and have not reviewed it in the past three to five years, a review would be best for you and your loved ones. If you would like to learn more about powers of attorney, please visit our previous posts.

Reference: Watertown Daily Times (April 14, 2022) “If I become incapacitated, who makes healthcare decisions?”

Photo by Vlada Karpovich

Have a Plan before You become Incapacitated

May 24, 2022

No one plans to be incapacitated, but life can – and often does – throw you a curve ball. Have a plan in place before you become incapacitated. If you became incapacitated and advance planning had been done, your family will have the legal documents you need. Just as importantly, they will know what your wishes are for incapacity and end-of-life care. If there was no planning, your loved ones will have to start with a lengthy application to the court to have someone named a guardian. They are a person who has legal authority to make medical decisions on your behalf.

Having a plan in place beforehand is always better, explains the article “If I become incapacitated, who makes healthcare decisions?” from Waterdown Daily Times.

Another reason to plan ahead: the court does not require the guardian to be a family member. Anyone can request a guardian to be appointed for another incapacitated individual, whether incapacity is a result of illness or injury. If no planning has been done, a guardianship must be established.

There are also many cases where one family member believes they are better suited for the task, and the family becomes embroiled in controversy about who should serve as the guardian.

These last two documents work together to describe your wishes for end-of-life care, medical treatment and any other medical issues you would want conveyed to healthcare providers.

The best advice is to have a plan in place, before you become incapacitated that is created by an experienced estate planning attorney. If you have an estate plan and have not reviewed it in the past three to five years, a review would be best for you and your loved ones. If you would like to read more about other important healthcare decisions, please visit our previous posts.

Reference: Watertown Daily Times (April 14, 2022) “If I become incapacitated, who makes healthcare decisions?”

Photo by Tima Miroshnichenko

How Divorcing over Fifty effects Estate Planning

May 23, 2022

If you are and older couple considering a divorce, take care to consider how divorcing over fifty effects estate planning. According to the Pew Research Center, the divorce rate has more than doubled for people over 50 since the 1990s. The Pandemic is also adding to the uptick, says AARP’s recent article entitled “Getting Divorced? It’s Time to Update Your Caregiving Plan.”

A divorce can be financially draining. Moreover, later-in-life divorces frequently impact women’s finances more than men’s. That is because in addition to depressed earnings from time spent out of the workforce raising children, women find themselves more financially vulnerable post-divorce and more likely to serve as caregivers again in the future. Even so, for partners of all genders, it is important to consider the longer-term financial outlook, not just the financial situation you’re in when you are actually dissolving the marriage.

You and your spouse will be dividing assets and liabilities and the responsibilities regarding spousal support. How one of you will live if the other gets sick or passes away should also be part of this conversation.

Consider where you’ll need to make changes. One may be removing your spouse from beneficiary designations on all your accounts. (In some states, this is automatic.) Your divorce agreement may also include buying life insurance or maintaining a trust or beneficiary designations for one another.

Create or update your estate plan immediately. You should also ask your estate planning attorney to review your marital agreement. They will have suggestions about how to align your estate plan with your divorce obligations. If you and your ex are co-parenting children, your estate plan should address who their guardians will be, if both biological parents pass away. It is also important to address who will manage any inheritance, if you don’t want your ex-spouse handling assets you may leave to your children.

Create your life care plan, which means naming health care proxies or surrogates (who will take care of your medical affairs, if you’re in need of caregiving), designating a financial power of attorney (who will take care of your finances and legal affairs), and naming a guardian for yourself if you’re incapacitated.

Consider the way in which your divorce will impact your children and extended family if you need caregiving. At a minimum, agree between yourselves what level of contact you can manage and, if you share children and loved ones, know that your lives will cross along the way.

While your marriage may not last, the connections will, so make a wise plan. Your estate planning attorney will help advise you on how divorcing over fifty effects your estate planning. If you would like to learn more about estate planning and divorce, please visit our previous posts.

Reference: AARP (Jan. 25, 2022) “Getting Divorced? It’s Time to Update Your Caregiving Plan”

Photo by Alex Green

Category: Living Will

A Living Will is a Huge Benefit

Living Will and DNR are different Documents

Even Young Adults Need a Will

Estate planning is vital for Unmarried Couples

Deciding where to Store your Documents is Critical

The Estate of The Union Season 2, Episode 2 – The Consumer’s Guide to Dying is out now!

Be certain You’ve got Legal Documents for your College Kid

Documents You need if You become Incapacitated

Have a Plan before You become Incapacitated

How Divorcing over Fifty effects Estate Planning

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