If you think about it, a Will or Trust does nothing to help YOU. The primary benefit is for your family when you die. Both documents say who gets your assets when you die and both name a person to administer your estate. There are many other differences in a Will and a Trust which will be discussed in much greater detail in future blogs. The purpose of this blog post today is to discuss what I refer to as “NOW Documents”. These are documents that help YOU NOW, while you are still living.
1. Property or Financial Power of Attorney. This is a legal document in which you appoint an “attorney-in-fact” (not to be confused with attorney-at-law) to make financial or property decisions for you. In effect, the person you name “steps in your shoes” since you give them power to take certain actions for you. Although a power of attorney can be designed to be immediately effective, for estate planning purposes, it is normally springing, that is not effective until you are certified incapacitated by two physicians. Gone are the days where we can routinely ‘get-by’ with a one-page power of attorney. Most financial institutions, brokers and others want to see the power that you are trying to enforce specifically laid out in the power of attorney. As a result, a properly prepared power of attorney may be 20 –30 pages long. The power of attorney should be durable, that is, be effective even if you are incapacitated.
2. Health Care Power of Attorney – In this document, you appoint a health care attorney in fact to make health care decisions for you in the event you are not able to make such decisions for yourself. This document authorizes your decision maker to make all health care decisions on your behalf, if you are not able to make them yourself, including the ultimate “pull the plug” decision, discussed in Private Living Will below. For example, I was the attorney in fact under my Mom’s Health Care Power of Attorney after she had her stroke. For 2 years, I made all health care decisions for her, since she could not make them for herself. This is the ultimate NOW document, since it authorizes another person to make decisions that have a profound effect on your quality of life, while you are living but not able to make decisions for yourself. This document needs to be separate from the property power of attorney, not just a sentence or paragraph in that document – it is much too important for that! Also, since a separate body of Arkansas law governs health care powers of attorney, they need to be designed and executed separate and apart from a property power of attorney.
3. Private Living Will - This is the state specific document whereby the attending physician certifies that you are terminal and irreversible or permanently unconscious. In this event the physician may withhold or withdraw treatment that only prolongs the process of dying. The private living will may be designed to require that the attending physician consult with the person appointed in your Health Care Power of Attorney before withholding or withdrawing treatment that would unnecessarily prolong your life. Having personally been in the shoes of decision maker in a situation like this, I can testify that this is not an easy decision to make. It is very helpful not only to have a very good living will that describes what treatment you do and do not want, but also to have a conversation with the person that you are appointing to make this decision for you – having had this conversation makes It much easier for the decision maker to make the decision that you want them to make when the time comes.
4. HIPAA Release - Because of the new privacy laws, it is imperative that you authorize medical personnel to release your confidential medical information to certain family members. Without this document, if a medical provider releases any of your confidential medical information to anyone, they most likely have violated a provision of this federal law. If you go into the hospital for an elective procedure, they will ask you to sign a HIPAA (Health Insurance Portability and Accountability Act) authorization on the spot, before your surgery. However, if you go into the hospital on a stretcher, you are not able to sign anything! I hear stories almost every day of family members who are shocked when the hospital won’t even tell them what room their loved one is in – much less give them any health care information. Don’t get upset at the doctor or nurse or medical provider – they are just following the letter of the law. In some cases, release of this information is a felony! Don’t put them or yourself in this situation. Sign a HIPAA Authorization designating who you want to have your protected health care information NOW – before something bad happens.
The above documents are necessary to complement any estate plan. They are normally referred to as ancillary documents since they complement either a will or trust based plan. However given the above descriptions, I think you understand why I think that these NOW documents are the most important documents in any estate plan.
Tuesday, September 15, 2009
Monday, September 14, 2009
5 Reason Why People REALLY Should Plan...
Why do today what we can put off until tomorrow? Sounds funny – but that seems to be the motto of many folks who don’t do the planning that they know they need to do. The American Bar Association estimates that around 70% of people have never done estate planning at all. After having practiced law for over 24 years, I feel that this number is low. We all know why we don’t plan - we love to procrastinate! However, in this article, I want to discuss five reasons why people REALLY should plan.
1. Once you lose your mental capacity to plan, it’s too late for you to sign documents. Sometimes folks plan to plan, but never get around to it. Then Alzheimer’s, stroke or other mental or physical ailments creep up a little at a time, until you reach the point that – IT’S TOO LATE! And when it’s too late, it is too late forever. If this has happened to someone in your family, don’t despair – there are still some good crisis planning strategies. However, if you’re reading this and still have your capacity, don’t wait any longer. Contact your elder law or estate planning attorney and do something NOW, while you still have the capacity to do so.
2. There is now a 5 year look-back rule on all transfers. This means that if you transfer (give) assets to someone for less than full and fair value, which is referred to in the business as an ‘uncompensated transfer’, then you may suffer a penalty as a result of the transfer. This means that because of the transfer, you may not be able to receive Medicaid benefits for many months. This also means that because of this uncompensated transfer, the person who needs care may not be able to get it or may have to sell assets that they could have otherwise kept had proper pre-planning been done.
3. If you do proper estate planning more than 5 years before the onset of incapacity, you can protect many valued assets (such as the family farm, money, rent houses, etc.). Many times, those going into a nursing home will have a special asset, such as the family farm, money, rent houses, etc. , that they do not want to lose. Families often tell me that they don’t mind spending the money for long term care, but they really don’t want to lose the farm or other treasured asset. With proper pre-planning, done more than 5 years before the need for long term care arises, these treasured family assets can often be protected.
4. When you pre-plan your estate, your reasoned, thought-out choices will be carried out, rather than some last minute, band-aid “fix”. No one knows your business or your family better than you. This statement is obvious. If you meet with an elder law or estate planning attorney while you still have capacity, you will not only be able to protect your assets from certain types of financial loss, but you, with their help, will be able to craft a plan that will greatly benefit your family, sometimes for generations. Last minute planning often results in band-aid fixes which is never as good as planning when time, capacity and resources are all on your side.
5. You can make decisions regarding who handles your estate during incapacity and who makes health care decisions for you. When people think about estate planning, they are often thinking of a will or a trust. However, the most important estate planning documents are neither of the above. A properly prepared financial power of attorney, a separate health care power of attorney, a private living will and a HIPAA Authorization, are all critical documents, because they determine who has control over your finances, property and health care decisions while you are alive. It is critical to understand the workings of the health care decision making process and to discuss this process with your family and with your attorney. We will discuss this process and the documents that make it all happen in our next blog.
Hopefully, after reading this your will not walk, but run (carefully!!!) to your elder law or estate planning attorney’s office and start work on a properly prepared estate plan for you and your family TODAY.
1. Once you lose your mental capacity to plan, it’s too late for you to sign documents. Sometimes folks plan to plan, but never get around to it. Then Alzheimer’s, stroke or other mental or physical ailments creep up a little at a time, until you reach the point that – IT’S TOO LATE! And when it’s too late, it is too late forever. If this has happened to someone in your family, don’t despair – there are still some good crisis planning strategies. However, if you’re reading this and still have your capacity, don’t wait any longer. Contact your elder law or estate planning attorney and do something NOW, while you still have the capacity to do so.
2. There is now a 5 year look-back rule on all transfers. This means that if you transfer (give) assets to someone for less than full and fair value, which is referred to in the business as an ‘uncompensated transfer’, then you may suffer a penalty as a result of the transfer. This means that because of the transfer, you may not be able to receive Medicaid benefits for many months. This also means that because of this uncompensated transfer, the person who needs care may not be able to get it or may have to sell assets that they could have otherwise kept had proper pre-planning been done.
3. If you do proper estate planning more than 5 years before the onset of incapacity, you can protect many valued assets (such as the family farm, money, rent houses, etc.). Many times, those going into a nursing home will have a special asset, such as the family farm, money, rent houses, etc. , that they do not want to lose. Families often tell me that they don’t mind spending the money for long term care, but they really don’t want to lose the farm or other treasured asset. With proper pre-planning, done more than 5 years before the need for long term care arises, these treasured family assets can often be protected.
4. When you pre-plan your estate, your reasoned, thought-out choices will be carried out, rather than some last minute, band-aid “fix”. No one knows your business or your family better than you. This statement is obvious. If you meet with an elder law or estate planning attorney while you still have capacity, you will not only be able to protect your assets from certain types of financial loss, but you, with their help, will be able to craft a plan that will greatly benefit your family, sometimes for generations. Last minute planning often results in band-aid fixes which is never as good as planning when time, capacity and resources are all on your side.
5. You can make decisions regarding who handles your estate during incapacity and who makes health care decisions for you. When people think about estate planning, they are often thinking of a will or a trust. However, the most important estate planning documents are neither of the above. A properly prepared financial power of attorney, a separate health care power of attorney, a private living will and a HIPAA Authorization, are all critical documents, because they determine who has control over your finances, property and health care decisions while you are alive. It is critical to understand the workings of the health care decision making process and to discuss this process with your family and with your attorney. We will discuss this process and the documents that make it all happen in our next blog.
Hopefully, after reading this your will not walk, but run (carefully!!!) to your elder law or estate planning attorney’s office and start work on a properly prepared estate plan for you and your family TODAY.
Saturday, September 12, 2009
Funeral Pre-Planning is a Great Idea
Thursday night we did a Workshop at ASU – Beebe concerning the need for Advance Planning. Our co-sponsor for the event was Westbrook Funeral Home of Beebe. We had a good crowd and a lot of interest. At this workshop, the primary focus was how to protect assets in the event of a long term care stay. The reality is that if you or a loved one has to go to a nursing home and you haven’t done estate planning in advance, your options are limited. However, there are good things that can be done to preserve some assets. One thing is pre-planning and pre-paying for your funeral. A pre-paid irrevocable burial contract is an exempt resource in Arkansas for Medicaid planning purposes. There are many ‘maybes’ in life, but dying is not one of them. If the parents don’t pre-pay for their funeral and last expenses with some of their few remaining dollars, this expense may fall in the laps of the kids when the parents die. Pre-planning and pre-paying for your funeral is also a good idea for two additional reasons: 1) It takes the emotional strain of this decision off the kids at the time of death; and (2) It freezes the cost – a person in the funeral industry told me that the cost of final expenses was going up approximately five percent a year. By locking this in now, you are saving a lot of money.
So, the two primary lessons I hope you learned from this blog post are:
1. Pre-plan your estate while you have the capacity to do so. I will discuss many reasons why you should do this in my next blog post.
2. Pre-plan your funeral because (1) An irrevocable pre-paid burial contract is an exempt asset for Medicaid purposes; (2) To protect your family from the emotional trauma of having to plan for you at the last minute; and (3) To freeze the costs, which, like everything else, are rising.
Wednesday, September 9, 2009
Assisted Living Facility Keeps Residents Hoppin'
Last night I was invited to speak at an Alzheimer's support group at a fairly new and very nice assisted living facility in Malvern. I arrived a little early - just in time to hear the tail end of a report of the Activities Director of the facility. The range of activities available to residents astounded me. I think that I only expected to hear about Friday bingo and afternoon card games. Instead, the Activities Director spoke of (1) Opening the place up for Halloween and told how many kids were there last year and how the residents enjoyed it tremendously; (2) A 50's Day, complete with malt shop, soda jerks, sock hop and 50's outfits; (3) Art classes and crafts of different kinds; (4) Beauty pageant; (5) Senior Olympics; (6) Dunkin' Booth; (7) Gospel Singing and on and on...
You would have to try very hard to be bored in this place! If the residents participate in 1/2 of the available activities, they would have no trouble sleeping. Several years ago, the only option for seniors was either stay at home or go to a skilled care nursing home. Today, there are several good options - one of which is an assisted living facility. If you are a Senior or have a Senior parent who is needing help, check out the assisted living facilities in your area. I think that you will be pleasantly surprised.
You would have to try very hard to be bored in this place! If the residents participate in 1/2 of the available activities, they would have no trouble sleeping. Several years ago, the only option for seniors was either stay at home or go to a skilled care nursing home. Today, there are several good options - one of which is an assisted living facility. If you are a Senior or have a Senior parent who is needing help, check out the assisted living facilities in your area. I think that you will be pleasantly surprised.
Wednesday, September 2, 2009
FREE Alzheimer's Planning Workshop in Malvern
The Meeting in Malvern at
The Crossing in Malvern
Join us for a FREE 1-Hour Alzheimer's planning workshop next Tuesday night (September 8th) at the Crossing at Malvern. Workshop time will be from 6:30 - 7:30. We'll be discussing relevent legal issues that you need to know including Medicaid Qualification, Powers of Attorney, Estate Planning issues and many more. To reserve your spot, just call our office at
(501) 843-9014 to reserve your seat(s). We look forward to seeing you there.
Doug Jones
http://www.arkelderlaw.com/
The Crossing at Malvern
720 N. Walco Road, Malvern
http://www.thecrossingatmalvern.com/
The Crossing in Malvern
Join us for a FREE 1-Hour Alzheimer's planning workshop next Tuesday night (September 8th) at the Crossing at Malvern. Workshop time will be from 6:30 - 7:30. We'll be discussing relevent legal issues that you need to know including Medicaid Qualification, Powers of Attorney, Estate Planning issues and many more. To reserve your spot, just call our office at
(501) 843-9014 to reserve your seat(s). We look forward to seeing you there.
Doug Jones
http://www.arkelderlaw.com/
The Crossing at Malvern
720 N. Walco Road, Malvern
http://www.thecrossingatmalvern.com/
Thursday, August 27, 2009
Time-Out Workshop
It's that time again...
What time is that, you ask?
It's Time-Out Workshop Time!
Watch your e-mail and our web-site for constantly updated information. Vital statistics are:
Date & Time: October 13th from 8:30 - 4:30
Location: U of A Cooperative Extension Service, 2301 S. University, Little Rock, AR
Why? Inexpensive ($35) AND Educational (Check back soon for Speaker Updates and Agendas) AND Relevant AND Fun Time, Networking with friends & Vendors, Great Food, 4.5 hours CE.
If you attended last year's Time Out Workshop and would like to post a comment, please do so below. This may be very beneficial to new potential attendees who haven't attended and may be wondering whether they should go. Thanks.
What time is that, you ask?
It's Time-Out Workshop Time!
Watch your e-mail and our web-site for constantly updated information. Vital statistics are:
Date & Time: October 13th from 8:30 - 4:30
Location: U of A Cooperative Extension Service, 2301 S. University, Little Rock, AR
Why? Inexpensive ($35) AND Educational (Check back soon for Speaker Updates and Agendas) AND Relevant AND Fun Time, Networking with friends & Vendors, Great Food, 4.5 hours CE.
If you attended last year's Time Out Workshop and would like to post a comment, please do so below. This may be very beneficial to new potential attendees who haven't attended and may be wondering whether they should go. Thanks.
Monday, June 15, 2009
2009 Little Rock Symposium - "Alzheimer's: The Continuum of Care"
We Are Excited To Participate!
2009 Little Rock Symposium - "Alzheimer's: The Continuum of Care"
It is with great pleasure and honor that we will be presenting on
Tuesday, June 16, 2009
DoubleTree Hotel ~ Little Rock, Arkansas
8:00 am ~ 4:15 pm
Keynote Speaker: Bill Bridgwater, National Alzheimer's
Association Board Member
Association Board Member
Cynthia will be speaking about
"A Prepared Family is a Happy Family"
"A Prepared Family is a Happy Family"
To reserve, call Alzheimer's Association at (501) 265-0027
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