Is Your Healthcare Power of Attorney up to date?

News today bombards us with pandemic and hysteria about the latest coronavirus. So many thousands infected today. So many hundred died. I’d quote numbers, but by the time you read this they’ll be outdated.

The veracity of the pandemic aside, there is a simple lesson, among many, we can learn from this scare. Consider: If you were in the hospital unable to care for yourself, who do you want making decisions for you?

Power of Attorney

A power of attorney is a legal document that empowers another person to make decisions on your behalf. That power could be temporary or indefinite. It can be only while you are competent, only if you are not competent, or both. The power can be limited to one action, for all actions, or anywhere in between.

This is a powerful document that gives another the ability to conduct your business. It’s not something to be entered into lightly. There is, however, a place for these documents in everyone’s contingency plans, and I include such in all of the estate plans I help clients establish.

The Health Care Power of Attorney

A health care power of attorney is a specific power of attorney that governs only health care decisions. It allows your agent access to protected information about you and to make decisions about your care. It can also be used to limit what decisions they can make and to guide them.

Without one of these documents the law makes assumptions about who can make decisions for you and what decisions they can make. Your spouse gets first priority, but what if you never got an official marriage license? Adult children get second priority, but what if there is a disagreement among them? Parents come next, but do you want to burden your parents with life and death decisions over their child without first talking with them?

Planning Ahead

Today’s environment reminds us that there is no time like the present for planning. When we don’t even know if we can go to work the next day, it is nice to have something settled. If this situation has caused you to think about your health care decisions and / or your estate plan, I’ll be happy to help you put together some documents. From a full on estate plan to an emergency contingency plan to carry you the next year, I’m still available via phone and email, and maybe even face-to-face. Chairman McMaster allowing of course. . .

When to Review your Estate Plan

If you have not looked at your will in a while, or if you have never quite gotten around to writing one in the first place, then now is a good time. With the Holidays just around the corner, you have a chance to evaluate your financial position, personal values, and the people you may leave behind. And what better topic to discuss at your Christmas Party!?!

You can probably think of a dozen better topics . . . estate planning is easily procrastinated, and that is the main reason most clients come to me without wills or with documents that are woefully outdated. So let’s work together to ensure your documents are in place and up-to-date.

When to Review?

Moving past establishing an initial plan, when should you re-evaluate your will and other such documents? General advice is every three to five years. Typically speaking, this will ensure you consider developments in a timely manner and that your plan is never too far out of date. (It’ll also keep you abreast of relevant laws that may change from time to time.)

My personal suggestion to clients is to review your plans at any life changing event. Weddings, funerals, divorces, births, moves, etc. At each one of these events you and your family change. Someone is welcomed in, someone will be missed (or not), state laws are changed, etc. These are easy milestones to recognize and indicate a higher likelihood that something may need adjusting.

What to Consider?

What does it mean to review your will or estate plan? It is actually a rather simple process for most; Consider the following questions: What are your goals today if you had to write a plan from scratch? How do those goals compare with your current plan? If there are differences, do you need to make changes to your current plan, or can you tolerate the differences?

With the above basic questions answered, a professional can help you consider if any laws have changed that affect your plans. Fortunately, the inheritance tax was largely reduced about 2010, and currently estates under $11.4 million are exempt. This is always subject to change, and you should stay aware of developments in both Washington and Columbia.

Implementing a Plan

Some clients work hard to develop and set up a complicated plan. Then they forget to implement it! Don’t let that happen to you.

Review your bank accounts, brokerage accounts, titles, deeds, insurance policies, and other such assets to ensure that the titling and beneficiaries comport with your plan. A will or trust may be circumvented if your accounts pay money on death directly to your beneficiaries. A plan to avoid probate may be frustrated by an old vehicle titled solely in your name.

No matter your intentions and plans, you should sit down and examine how assets are held. Ensure that you have titled your property in a way that works within your plan to accomplish your goals.

When to get Help?

You can add beneficiaries to your bank accounts, change the title on your car, and adjust your life insurance policies yourself. Changing the deed for a house or writing a will is another matter. But where a professional really helps is when you need someone with experience with whom to discuss a difficult question or to facilitate a conversation with your spouse.

Whether you need to establish a will and nominate someone to raise your minor children, or you want to set up a trust for the life of your spendthrift adult child, I will happily work with you to understand and explain your options. When a decision is made, I can help you implement that plan to ensure your wishes are carried out.

If you have been putting off writing or reviewing your will, reach out to me and let’s knock this off your list before it becomes a New Year’s Resolution!

I have a gun trust. Should I get a Will?

That is the question of many clients. You have taken the time and gone through the trouble to set up a gun trust. Said trust will take care of the firearms owned in it, and will pass those down according to your instructions. With that taken care of, should you consider adding a Last Will and Testament to your estate plan?

In a word: Yes.

A Will is a necessity if you have any assets to pass on or unfinished business to handle. And most of us fall into both of those categories.

A Will allows you to name a guardian for any minor children. You can divide assets and delineate who takes ownership upon your death. You can make arrangements to pay any debts you have outstanding. And finally, if your situation warrants it, you can establish a more general trust to hold assets for beneficiaries who need a little extra help managing the property.

A Will allows for a clean and ordered closing of business and transferring of property after your death. This is a stressful time for your family, and guidance left behind by you will make the work easier for your family. This is especially true where you leave behind multiple heirs.

But is that all I Need?

Unfortunately no. You should consider setting up a Durable Power of Attorney and a Health Care Power of Attorney. These documents name an agent who can handle your business when you are unable. This is extremely important if you become ill, are involved in an accident, or become unable to handle your affairs due to age.

These are documents that can be implemented at any time, as long as you are competent. All too often, people wait until they are no longer competent before realizing the need for such documents. Once that happens, an expensive and cumbersome Court Order is necessary to accomplish the job. Here, as in many cases, an ounce of prevention is worth a pound of cure.

How can you help?

Repeat clients are my favorite. I already have familiarity with your family, and your return business is a vote of confidence in the services provided. Thus, I am always happy to help clients handle other matters.

To handle the issues discussed above, I offer a Wills Package which includes the Will, Durable Power of Attorney, and Health Care Power of Attorney. I enjoy sitting down with you and your spouse and discussing your plans for the future and how we can make those happen. I’ll help you consider ideas and angles previously unexplored, and once everything is finalized, I can draw up the papers for you.

It’s never too early to consider your Will and other such documents. If this has crossed your mind, please reach out to me today, and I will be happy to help you take this off your to-do list.

Firearms: Will vs. Trust

A common question from clients is why should I use a trust to distribute my firearms after death? Phrased another way, what are the advantages of using a trust over a will?

Most people are familiar with the concept of a will. In short, at your death a will specifies who receives the property you owned. This bequeath is outright and occurs as soon as your Personal Representative (SC’s version of an executor) finishes the paperwork.

Anything and everything written in a will becomes public information as a record of the Probate Court. Additionally, any collections, including collections of firearms, passed via will are subject to being appraised and a copy of the appraisal filed with the Probate Court. Any interested party, or the judge himself, can request this appraisal.

Thus if you divide your firearm collection by will, or a beneficiary or the judge takes interest and requests an appraisal, all of the information on your collection, including description of firearms and who receives them, becomes public information. Many of my clients are disturbed by this idea.

A trust on the other hand is a private document that does not go through the Probate Court to distribute the firearms. Any lists, descriptions, or divisions in the trust remain private. The only time this would become public is if a beneficiary sues the trust and this information is made public as part of the suit.

This privacy gain is one big reason to use a trust. Firearms, unlike money in the bank, are physical assets normally kept at home. Most of us quickly see the danger in telling the world where thousands of dollars of very liquid and desirable assets are located; especially when that location is with a loved one that we are no longer there to protect. Add to this a distrust of government when it comes to firearms and the benefits of privacy become obvious.

Another significant difference between trusts and wills is the amount of control you have when passing on your belongings. Property distributed via will is given outright to the recipient as soon as paperwork is completed with the Probate Court.

With a trust, the gift can be delayed, conditional, or merely use of property during a lifetime. This allows the the creator to give children use of the firearms while ensuring the guns are passed down to the next generation. Or, more commonly, recipients can be made to wait until they reach an age of maturity.

All of these mechanism have one common goal: Ensuring your property is used wisely and preserved for future generations. A trust provides the flexibility to use many controls on gifts and thereby to preserve assets and influence the recipient. When dealing with minors or young adults, trusts are invaluable to see the property through adolescence.

Last, a firearms trust has much greater guidance for the trustee and protections from common mistakes. Wills deal with all types of property and focus on guiding your Personal Representative in handling probate and dividing property. A firearms trust takes into account that some people in our society cannot legally own the property being transferred and that some states restrict this property, or the transfer of it, in special ways.

Guidance to the trustee in the trust alerts him to possible issues, restrictions, and disqualifications from owning firearms. This protects both the trustee and the beneficiary who may otherwise receive property he cannot own or could not possess in his current location.

Together these benefits make trusts superior tools for passing down firearm collections. The downside? You still need a will to cover everything else. If you are interested in what benefits a trust or will can provide for you, please contact my office for a consultation and recommendations.