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Law Office of Michael D. DellaMonaca

Have a Plan for Life

Why You Need an Estate Plan, Especially Now

Estate planning is an all-encompassing term that refers to the entire process of gathering and organizing assets and making preparations for when you die, including caring for minor children and heirs. It also includes putting protections into place if you should become incapacitated, says an article that covers estate planning basics from c|net titled “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents.” Your estate plan involves writing a will, power of attorney and funeral arrangements and especially now,  why you need an estate plan.

Here are some of the key steps:

Distributing assets. Your estate includes more than just real estate. It includes everything you own, including your car, jewelry, sentimental belongings and intangible assets, like investments and insurance. If you own a business, that is also part of your estate.

Preparing for family life without you. An estate plan sets out how you want to care for loved ones. A will is used to name a guardian for minor children, and to name someone to be in charge of their finances. One person can have both roles, but it is generally advised to name one person for each role. If you fail to name a guardian, the court will select one for your children.

Assign the tasks of handling the estate or your health, if you are incapacitated. An estate plan includes a Health Care Proxy or medical power of attorney and a financial power of attorney, so decisions can be made on your behalf, if you are incapacitated. You’ll also name an executor. This is the person who will be in charge of following the directions you leave in your will and distributing assets. Depending on your estate, the person may also be in charge of selling your home, negotiating with creditors, or managing the sale of your business. It’s a big assignment and requires someone who is organized and trustworthy.

Work with an experienced estate planning attorney. An estate planning lawyer will save you a lot of time, energy and effort in creating an estate plan. The attorney will also be able to help you manage estate, inheritance and gift taxes to minimize the impact of federal and state laws on your beneficiaries.

Document everything properly. Just stating your wishes won’t solve anything. You need an estate plan with all of the right documents prepared in accordance with the laws of your state. An invalid will could create just as many problems as no will at all. You’ll need a last will and testament to appoint an executor, outline how you want assets to be distributed and see your will through the probate process.

If you want to avoid probate court, you may want your estate plan to include a trust. A “funded” revocable trust can be adjusted while you are living. When you die, the trust is managed by trustees of your trust.

A living will details your healthcare preferences, in case you are not able to communicate or make decisions on your own. If you require life support, or life saving measures, the living will specifically outlines what you want to have done—or not done—rather than having children or relatives guess at your wishes.

Having an estate plan is not a set-it-and-forget-it plan. As you proceed through life, getting married, having children, divorcing, buying property, etc., the estate planning documents need to be revised, so they continue to reflect your wishes. Whenever there are big changes to the law, you may also need to revise the will, so you don’t miss out on any planning opportunities. Contact an experienced estate planning attorney if you need to get your affairs in order.

Reference: c|net (June 8, 2020) “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents”

Suggested Key Terms: Estate Planning Attorney, Wills, Trusts, End-of-Life, Revocable, Probate, Living Will, Executor, Health Care Power of Attorney, Guardian,

Is Your Covid-19 Essential Estate Planning ‘Go Package’ Ready?

When a person gets sick or dies, the family will frequently try to hunt for their estate planning documents or the contact information of an attorney who might know about them. Is your essential estate planning package ready?

Forbes’ recent article entitled “The Covid-19 Essential Estate Planning ‘Go Package’” says that it’s a good idea to have all your estate planning documents complete and current. However, all that effort and expense doesn’t do much good if your family doesn’t know about the documents or have access to them.  There can be horrible consequences, when the important components of the estate plan aren’t immediately known and accessible to your family especially if you fall ill. Medical and financial decisions and actions will be delayed or won’t be made by the people you wanted.

To avoid this, especially during the pandemic, create a “go package” of essential estate plan items and have the package available. Be certain that your family is aware of it and where to find it. This go package must contain the primary estate planning documents: medical power of attorney/advance medical directive, financial power of attorney and will. The medical documents are the most fundamental in this package. Without these, the hospital and doctors won’t know your wishes for medical treatment or who should help make decisions. If you do not have your estate planning package put together, you should reach out to an experienced estate planning attorney to assist you in preparing one.

In addition, put a copy of your insurance card and any related information in the package. This might include a Medicare card and information about any Medicare supplement and Part D prescription drug coverage you have. It will go much more smoothly at the hospital, if the medical insurance details are immediately available. Your important medical history should be included.

Adding a list of essential personal information also is important, including full legal name, Social Security number, birth date, emergency contacts and contact information for your doctors and your estate planning attorney. You can prepare your go package in a digital format, such as on a thumb drive or similar device that is on your key ring or kept near you. However, others must be aware of it for it to be used. Therefore, let your family and decision makers know where you keep the digital package and consider providing them with copies or keeping one clearly labeled near your door.

With a go package, you and others don’t need to hunt for all of this information. If you’re already at the hospital, ask someone to go retrieve it.

Reference: Forbes (May 27, 2020) “The Covid-19 Essential Estate Planning ‘Go Package’”

 

Should I Have an Advance Directive in the Pandemic?

Advance directive is a term that includes living wills and health care proxies or powers of attorney. These are legal documents we all should have. A living will allows you to tell your family and doctors the types of medical care you want at the end of your life. Health care proxies let you name someone to make medical decisions for you, if you can’t verbally communicate.

WTOP’s recent article entitled “Advance medical directives vital during COVID-19 pandemic” says that you need both because not all medical situations will trigger a living will. In fact, a living will is only really applicable, if you have an end stage process, a persistent vegetative state, or a terminal illness. People often run into a situation where they have a health event, but it’s not something that’s going to end in their death. An estate planning attorney can draw up advance directives, when they’re creating your estate plan.

When selecting the individual to grant the power to make decisions for you, consider who would be most capable of advocating for what you want, rather than what they, other family members or a medical provider might want. You should also name a backup in the event your first choice can’t serve and make sure these advocates understand your wishes. Give copies of the documents to them and go through what you want.

Your estate planning attorney will follow your state’s rules about how to make these documents valid, such as having witnesses sign or getting the paperwork notarized.  Next, keep the originals in a safe place at home, along with your will and tell your family where to locate them. Your physician and estate planning attorney should also have copies. Tell your doctor to add the forms in your electronic health record. That way, other medical providers can access it in an emergency. You should also carry a card in your wallet that has your health care agent’s name and contact information, as well as where you keep the originals and copies.

If your choices could cause stress for your family, consider including a note explaining your thinking. Even if they disagree with your decisions, it is more comforting to hear it directly from you, rather than the person you named to act on your behalf.

Reference: WTOP (June 1, 2020) “Advance medical directives vital during COVID-19 pandemic”

 

What If Grandma Didn’t Have a Will and Died from COVID-19?

The latest report shows about 1.87 million reported cases and at least 108,000 COVID-19-related deaths were reported in the U.S., according to data released by Johns Hopkins University and Medicine.

Here’s a question that is being asked a lot these days: What happens if someone dies “intestate,” or without having established a will or estate plans?

If you die without a will in California and many other states, your assets will go to your closest relatives under state “intestate succession” statutes.

Yahoo Finance’s recent article entitled “My loved one died without a will – now what?” explains that there are laws in each state that will dictate what happens, if you die without a will.

In Pennsylvania, the laws list the order of who receives upon your death, if you die without a will: your spouse, your children, and then your parents (if still alive), your siblings, and then on down the line to cousins, aunts and uncles, and the like. Typically, first on every state’s list is the spouse and the children.

You may also have some valuable assets that will not pass via your will and aren’t affected by your state’s intestate succession laws. Here are some of the common ones:

  • Any property that you’ve transferred to a living trust
  • Your life insurance proceeds
  • Funds in an IRA, 401(k), or other retirement accounts
  • Any securities held in a transfer-on-death account
  • A payable-on-death bank account
  • Your vehicles held by transfer-on-death registration; or
  • Property you own with someone else in joint tenancy or as community property with the right of survivorship.

These types of assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

It’s quite unusual for the government to claim a deceased person’s estate. While it might be allowed in some states, it’s considered a last resort. Typically, we all have some relatives.

If you have a loved one who has died without a will, speak with an experienced estate planning attorney about your next steps.

Reference: Yahoo Finance (June 1, 2020) “My loved one died without a will – now what?”

What If the Coronavirus Leaves Me Critically Ill?

The smartest time to get your affairs in order, is when you’re healthy, regardless of a pandemic, advises NBC Bay Area’s recent article entitled “3 Steps to Take Now in Case COVID-19 Leaves You Critically Ill.”

You should talk to an estate planning attorney and think about these three steps to consider taking yourself before you meet:

  • Prepare your end-of-life care
  • Decide what your wishes are for your assets; and
  • Plan your funeral or memorial service if one is desired.

Prepare End-of-Life Care. For end-of-life care, many people have what’s sometimes called a “living will”. In California, it’s often a six-page form called the Advanced Health Care Directive. With it, you can set forth your wishes about your end-of-life care and designate a decision-maker.

In California, you can download an advanced health care directive form for free, via the California Courts website. It’s actually pretty easy to read. Note: you’ll need two witnesses to sign it with you.

Decide what your wishes are for your assets. This is where an attorney can really be key. You can discuss who you’ll want as an executor to coordinate your estate and probate. You can also think about who you want to receive your home, vehicles, funds in your bank accounts and other assets.

There are a number of important legal aspects to consider, and you can talk to your legal counsel about the process.

Your Funeral Plans. You also need to be certain that the details of your final wishes are known. It’s a good idea to write down exactly what you want or don’t want.

It’s not uncommon for families to have a hard time with these choices, when someone dies without a plan. Prevent conflict and stress, by writing your wishes down now.

It’s best to work with an attorney who specializes in estate planning, wills and trusts.

Reference: NBC Bay Area (April 15, 2020) “3 Steps to Take Now in Case COVID-19 Leaves You Critically Ill”

What Is a Power of Attorney?

A power of attorney is a legal document that permits an agent or attorney-in-fact to make financial and legal decisions on your behalf, if you are unable to do so.

WTOP’s recent article “How to Set Up a Power of Attorney” says that the rules for designating power of attorney vary from state to state. Because of this, you should speak to an experienced estate planning attorney about your state’s laws.

Power of attorney is revocable. Therefore, if you’re mentally competent and believe you can no longer count on the person you designated as your agent, you can update your documents and select another person.

The individual you choose as your attorney-in-fact will depend to a large extent on the type of power you’re granting — whether it’s general or limited — and your relationship. For general power of attorney, people often go with their spouses or sometimes their children. However, you can choose anyone, as long as it’s someone you trust.

In many cases, designating general power of attorney is a component of a larger estate plan, so when you talk to your estate planning lawyer about your estate plan, you can add this to the conversation.

You may want to have your attorney draft a limited or special power of attorney. This lets your agent complete restricted transactions, like selling a piece of property. It’s limited in scope. In contrast, a general power of attorney lets your agent do about anything you could do. A general power of attorney is usually part of an estate plan, in the event you’re unable to handle your own financial matters as you age or become incapacitated.

A springing power of attorney goes into effect in a predetermined situation, and it will specify the circumstances under which the power takes effect. An immediately effective or non-springing power of attorney is in place once the paperwork is signed.

Powers of attorney typically end when the principal is unable to make decisions on his or her own. However, for some, becoming incapacitated is just the type of circumstances when they want someone they trust to have power of attorney.

A durable power of attorney continues after the individual is incapacitated. Therefore, if you’re unable to make financial or medical decisions on your own after an accident or illness, the POA will remain in effect.

You are generally also able to name a medical power of attorney. That’s a person who knows your wishes and can make health care decisions for you as a proxy. It’s also known as a health care proxy. If you can’t make decisions on your own, the health care proxy kicks in. Your health care proxy should know your wishes, as far as how you’d like doctors to treat you, if you can’t make decisions on your own. This may also accompany a living will, which expresses your wishes on continuing life support, if you’re terminally ill or being kept alive by machines.

Reference: WTOP (May 21, 2020) “How to Set Up a Power of Attorney”

Should Nursing Homes Plan for Future Pandemics?

Roughly 6,000 nursing home residents have died during the pandemic in New York State.

The coronavirus pandemic has exposed vulnerabilities for one of the country’s most high-risk populations: our senior citizens.

Spectrum News reports in the article “Nursing Homes Could Be Required to Have Pandemic Plan” reports that a proposed bill in that state would require nursing homes to have plans for future pandemics, make those plans readily available on websites, provide regular updates on the status of patients and establish protection plans for staff and residents.

In addition, communication via videoconferencing must be made available for residents.

The bill would also mandate that a pandemic plan preserve a resident’s place in a nursing home after hospitalization is through. It would also include provisions for the facilities to have a minimum two-month supply of personal protective equipment (PPE).

The New York State Department of Health will be required to audit facilities annually for compliance.

“The nature of COVID19 exposed a tragic vulnerability among one of our most high-risk populations: our elderly,” said Assemblyman Joe Lentol, a Brooklyn Democrat. “The rapid spread of the virus in nursing homes exposed a fatal flaw in pandemic planning and it is clear that more has to be done to protect nursing home residents and its healthcare workers.”

New York’s response to nursing homes during the crisis has come under some scrutiny. Part of that has been a March 25 order that required the facilities to take in COVID-positive patients.

New York Governor Andrew Cuomo has partially reversed that directive, by banning hospitals from discharging people to nursing homes who are still positive for the virus.

Cuomo has also placed some of the blame on the CDC guidelines for permitting nursing homes to take COVID residents. However, he didn’t raise the issue in a recent meeting with President Trump.

Twice weekly testing of nursing home and adult care facility staff is now underway. The testing capacity and supply has increased in New York over the past month.

The bill must still be considered by Governor Cuomo for approval.

If you have questions about a loved one who is being transferred to a nursing home, make sure you speak with your estate planning attorney.

Reference: Spectrum News (May 28, 2020) “Nursing Homes Could Be Required to Have Pandemic Plan”

What You Need to Do after a Loved One Dies

The Dallas Morning News’ recent article entitled “Three things to do on the death of a loved one” explains the steps you should take if you are responsible for a family member’s assets after they die.

Be sure the property is secured. A deceased person’s property becomes a risk in some instances. Friends and family will help themselves to what they think they should get, including the deceased’s personal property. Once it is gone, it is hard to get it back and into the hands of the individual who’s legally entitled to receive it.

Criminals also look at the obituaries and while everyone is at the funeral or otherwise unoccupied, burglars can break into the house and steal property. Assign security or ask someone to stay at the house to protect the property. You can also change the locks. Credit cards, debit cards, and checks need to be protected. The deceased’s mail must be collected, and cars should be locked up.

Make funeral plans. If you’re lucky, the deceased left a written Appointment of Burial Agent with detailed instructions, which can make your job much easier.

For example, Texas law lets a person appoint an agent to be in charge of funeral arrangements and to describe the arrangements. An estate planning attorney can  draft this document as part of an estate plan. You should see if this document was included. If you’re listed as the agent, present the paper to the funeral home and follow the instructions. If there are no written instructions, the law will say who has the authority to make arrangements for the disposition of the body and to plan the funeral.

Talk to an experienced attorney. When a person dies, there is often a lapse in authority. The decedent’s power of attorney is no longer in effect, and the executor designated in the will doesn’t have any authority to act, until the will is admitted to probate and the executor is appointed by the probate judge and qualifies by taking the oath of office and filing a bond, if required. Direction is needed earlier rather than later, on what you’re permitted to do. The probate of a will takes time.

It is best to get started promptly, so that there’s an executor in place with power to handle the affairs of the decedent.

Reference: Dallas Morning News (April 10, 2020) “Three things to do on the death of a loved one”