Estate Planning

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Health Care Proxy & Advanced Directives.

Modern advances in medicine raise many questions of types of care specially when faced with a significant health concern. Normally we make decisions about our own health care as the situation arises, but in some circumstances, we may lose the ability to make such decisions. When you or your family are faced with such a circumstance it is important for you to have made your wishes in advance so that those who care for you may know your choices, beliefs, values, and desires.

These documents will affect health care decisions made on your behalf should you lose the capacity to decide for yourself. A Health Care Proxy is essentially a durable power of attorney for health care. It allows you to designate a health care agent to make decisions on your behalf. An Advanced Directive commonly referred to as a "living will", asks you to state your preferences regarding types of treatment decisions that may arise during a serious health concern. Together, these documents will help make sure that treatment choices reflect your wishes.

The guidance you offer in these documents will help provide clarity for your physicians and family members avoiding potential conflict or confusion. These documents will provide direction and guidance to assure that decisions are made on your behalf if you temporarily lose consciousness or the ability to communicate as the result of an accident, a surgical procedure, or illness. In addition, they supply guidance should you become unable to express your choices during the last stages of life. These documents express requests of the medical treatments that you would want to receive, and to express preferences among different types of treatment. You also may indicate those treatments that you do not desire or object too should you become terminally ill or permanently unconscious.

These documents would be used to guide medical treatment through your agent if you lose the ability to make decisions and communicate your wishes. If you regain the ability to communicate, you would resume making your own decisions directly. Even if you never lose decision making capacity, your establishing these documents could help you gain a sense of your own thoughts, choices, beliefs, and values concerning medical decisions, and give you the opportunity to think about some of the choices people must make about their health care. If you need to make decisions in a stressful situation in the future, having gone through the thought process in completing these documents will serve as a resource for you at the time of need. You may revoke or amend these directives at any time.

In the event you do not regain the ability to communicate, a Health Care Proxy already in place would afford your agent the ability to make many if not all health decisions for you without having to apply to be your court appointed guardian. Who better to select the person to care for you, than yourself.

Durable Power of Attorney

A Durable Power of Attorney is a powerful document that enables a person to appoint an agent to act on their behalf. The authority entrusted to the agent is detailed in the document, and may have as many or as little restrictions they desire.

A Power of Attorney is very helpful when assistance is needed, and may also be convenient. The application and usefulness is far reaching. For example conducting the affairs of an individual traveling or otherwise not available, caring for an elderly parent or adult child, or in the case of caring for an individual that is suddenly incapacitated (physically or mentally). In the case of incapacitation, the Durable Power of Attorney must be in place prior to the incapacitation. In the event any such incapacitation is long lasting the agent would be able to conduct many if not all affairs without having to apply to be a court appointed conservator.

Creating a Will is much more than simply writing down who you would like to have your possessions or assets when you die. An effective estate plan should speak to four areas: disposition of assets, avoiding the Probate Court process, minimize taxes, and provide level asset protection. You will not achieve this with a fill in the blank form from the internet.

If planning is done incorrectly you could trigger a significant tax consequence, as example an elderly man with a home wants to protect his legacy to his children, and transfers the home to his children for one dollar with the understanding that he remains in the home. Sounds great avoids probate, protects his principle asset from Medicaid in the event of nursing home or other large medical costs, right? WRONG. Although this action may have eliminated formal probate, when the surviving children sell the home it would incur a large capital gain tax. Capital Gain tax is a higher rate and depending on property value could easily exceed $100,000. If that didn't get your attention, what if after the transfer one of the children who now owns the property is faced with a circumstance such as divorce, bankruptcy, substance abuse, or wants to relocate to another state, or worse pre-deceases the parent. Both of these examples would be avoided with effective planning from a qualified attorney. 

I will review your circumstance, formulate a plan protecting you from these common pitfalls, and provide the maximum benefit for you the client and your heirs.