Many people make the mistake of thinking that estate planning is just about protecting wealth and distributing property. Those are often important goals of estate planning, but they are not the only reasons to have an estate plan. There are other reasons to have an estate plan and other goals that you can accomplish with an estate plan. In fact, the other goals are often far more important than wealth and property.

If you have children, you can use an estate plan to determine who should have guardianship over your children in case something happens to you. Whose custody you leave your children in is usually far more important than how much money you leave your children. However, if you do not have an estate plan, you will not be the person to decide who will take care of your children.

An estate plan also sets out who takes care of you and your property if you become incapacitated. If you are in the hospital, for example, someone might need to make health care decisions for you. As part of your overall estate plan, you can decide who has the authority to do so.

Do not make the mistake of thinking that just because you do not have a lot of property you do not need an estate plan. Property is important to estate planning, but it is not the most important thing.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you are in surgery and unable to make an important decision concerning your care, have you considered who you want to make the decision for you? Have you discussed it with the person you would designate so that he or she knows what you would want done? Have you created the appropriate legal framework for the person you designate to make those decisions? A Health Care Proxy is a document that you can use to legally appoint another person to make medical decisions on your behalf when you are incapacitated and unable to make them on your own.

Doctors and other health care workers have to follow strict legal rules and procedures when discussing your health and care with other people. To protect your privacy, they are not allowed to discuss your care with other people in most cases. That means that if a decision regarding your care needs to be made quickly, the doctors will have to make it themselves. What they choose to do might not be what you would want done. A Health Care Proxy allows you to designate someone who doctors can legally discuss your health with and someone who can tell doctors what you want. Talk to an attorney about getting one today.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

One of the most important decisions that you will ever make is who you should appoint to make your health care decisions when you are no longer able to do so. The designation is made in a Health Care Proxy document. Most people instinctually think that they should name a spouse or family member. That is often the best person to appoint. However, there are other things to consider.

The person that you appoint needs to be able to effectively communicate with doctors and other medical personnel what your wishes are. That means that he or she must not only be able to express your wishes, he or she must know what they are. Some people are not comfortable talking about important health care decisions long before they need to be made. It can be uncomfortable for family members sometimes, but you need to be able to talk to the person you designate about what you want.

You also need to take care to appoint someone who is available to communicate with doctors and who you anticipate will be available long into the future. Hopefully, you will not need the Health Care Proxy for years to come so it does not make sense to designate someone in it who may not be around when you do need it.

Who you designate is up to you. Talk to your attorney about who the right person is for your situation.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Getting a General Durable Power of Attorney is one of the most important things that you can do as part of your overall estate plan. You should consider the possibility that you might be incapacitated and unable to look after your own interests in the latter years of your life. If you do not plan ahead, then someone else will have to go to court and ask for guardianship over you to protect your interests.

If you think that having a relative asking a court for guardianship is not that big of deal, a recent case illustrates the problem with that approach. Sometimes, your relatives might not agree about all aspects of the guardianship and who should be the guardian. Usually, that argument is left in court, which can be bad enough. In the case of the Fox family, the disagreement resulted in a 63 year old high school counselor punching his 74 year old uncle after a court hearing.

Fortunately, not every family feud over guardianship will end up in criminal charges. However, any family disagreement over the issue is unnecessary and avoidable. All that you need to do is have an attorney prepare a General Durable Power of Attorney so that everyone knows who you want to look after your interests when you are no longer able to do so.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

As part of your estate plan, your  New York City estate planning attorney will draw up a wide range of documents for you. As part of the process, you will need to designate people to act on your behalf. You might need to appoint an executor, a trustee, a general power of attorney, a healthcare prox and more. You do not need to designate the same person to act in every role.

Speak with your attorney about what the people designated for each role actually do so that you can designate the most appropriate person. For example, the executor of your will has a short-term assignment. Once directives in the will are carried out, the executor’s role is over. However, a trustee may need continue administering the trust for years. Thus, you might want to consider a potential trustee’s ability to continue to act well into the future, which might not be as big of a concern for an executor.

Different considerations go into deciding who to appoint to different roles, such as appointing a power of attorney or a  healthcare proxy. An estate planning attorney will go over every role with you and has the experience to know what the most important factors are that you should consider. Make sure you ask your attorney about every role.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

A durable power of attorney allows an attorney-in-fact or an agent to make specific financial decisions on the principal’s behalf. A power of attorney document must be in writing and must comply with specific statutory formalities. Additionally, some banks may require parties to use their specific forms before they honor their power of attorney instruments. In most cases, you will have to sign your power of attorney document in the presence of a notary public and obtain the notary’s signature or seal. You may also need to sign your document in front of witnesses. You can limit your agent’s financial decision-making powers by specifying the types of actions your agent can take on your behalf. You can also further specify what types of financial decisions your agent cannot make.

Every power of attorney ends at the principal’s death. This means that if you die, your power of attorney is no longer effective, regardless of whether or not you revoked it or validly destroyed it. The termination is automatic. However, your power of attorney may also become automatically invalid if you become mentally incompetent. Unless you created a “durable” power of attorney, your power of attorney most likely ends at your mental incapacity. Although state laws may differ, most states require you to include certain words to express your intent in creating a durable power of attorney. You may need to include specific words, such as “to remain effective upon my mental incapacity” or “a durable power of attorney.”

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

When you’re devising an estate plan, you may come across several terms used in relation to people who will play an important part role in your plan. The title for these people, or organizations differ, and each has its own specific meaning and importance. It’s important to understand these terms before you begin the estate planning process.

Q:  Is an agent the same as an attorney-in-fact?

A: Essentially, yes. Whenever you grant power of attorney, the person who receives the power becomes your attorney-in-fact, also known as your agent. An attorney-in-fact is not the same as a lawyer, though you can appoint your lawyer to act as your attorney-in-fact.

Q: If I appoint someone as my attorney-in-fact, does that person continue to act on my behalf after I die?

A: No. All powers of attorney end automatically when you die. Even if you appoint a durable power of attorney, allowing your agent to act after you lose capacity, this power does not continue after your death. Further, if you don’t grant a durable power of attorney, these powers terminate as soon as you lose capacity.

Q: Can my attorney-in-fact act as my executor?

A: Yes. However, appointing an attorney-in-fact does not automatically give that person the right to be your executor. If you want your attorney-in-fact to act as your executor, the only way to do this is to name this person as your executor in your last will and testament. If you don’t nominate an executor in your will, the court will have to appoint someone.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

A benefit of estate planning is that you get your questions answered about all kinds of estate planning issues.  For example, you find out how to prevent problems and how to create positive solutions, regarding medical planning.  Here, we’re answering the 6 important medical estate planning questions we receive the most frequently.  We’re including two parts to this article because there are so many questions and the answers are important to everyone.

4. Who should I name as my health care agent?

Use a health care proxy to appoint health care agents to make health care decisions, if you are ever unable to make those decisions yourself.  Name agents who care about you, know you, can deal with stressful medically oriented situations, and can communicate effectively, even assertively, with medical personnel.  Everyone needs an advocate when he or she is in the hospital.

Be sure to ask your agent before naming him or her and name back-up agents, in case your primary agent is unable or unwilling to serve at the time.

5.  Does my health care agent have to honor my living will?

Yes, your health care agent can only make health care decisions on your behalf if you cannot provide informed consent and haven’t already done so.  Your health care agent must honor your living will and should make sure that your doctors have a copy of it.

6.  Should I be an organ donor?

Being an organ donor is a personal decision, but consider that you can save up to 8 lives and help numerous others improve their lives by being an organ and tissue donor.  Would you want someone to donate organs and tissues so that you or a loved one may live, see, or recover from tragic burns or trauma?

If you haven’t yet done so, read Answers to 6 Important Medical Estate Planning Questions (Part One of Two), to learn more and get your medical estate planning questions answered.  If you have questions about your individual situation, consult with a qualified estate planning attorney.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

A benefit of estate planning is that you get your questions answered about all kinds of estate planning issues.  For example, you find out how to prevent problems and how to create positive solutions, regarding medical planning.  Here, we’re answering the 6 important medical estate planning questions we receive the most frequently.  We’re including two parts to this article because there are so many questions and the answers are important to everyone.

1.       What is an advanced medical directive?

An advanced medical directive is a legal document wherein you make a medical decision before you need it.  You’re making a medical decision now for a potential situation sometime in the future.  Examples of an advanced medical directive are a living will, health care proxy, and organ donation authorization.

2.       I already signed a HIPAA release at my doctor’s office; do I need another one?

You likely signed a HIPAA release authorizing the medical office to release information about your medical record to your health insurance company so they can get paid.  You need a HIPAA release that honors federal medical privacy laws and authorizes your medical staff to communicate with your health care agents, named in your health care power of attorney.

3.       Who Needs a Living Will?

A living will is effective if you are in an end-stage medical condition such as an irreversible coma or persistent vegetative state.  Each and every person, age 18 or older, needs a living will if that person wants to avoid end-of-life medical heroics, including life support machines.  The United States Supreme Court has rules that a living will is clear and convincing evidence of the desire to not be kept alive with medical heroics.

Continue reading Answers to 6 Important Medical Estate Planning Questions (Part Two of Two) tomorrow to learn more and get your medical estate planning questions answered.  If you have questions about your individual situation, consult with a qualified estate planning attorney.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Some estate planning documents are effective as soon as you sign them; others not until you’re incapacitated or die.  You and your trusted helpers (i.e. executor, power of attorney agents, guardians for minor children, and trustees) need to understand when your estate planning documents are effective.  After all, your trusted helpers only have the legal authority to act on your behalf when the documents are in effect.

• Your Will

Your will is only effective if you’re dead; it has no authority and doesn’t get filed anywhere until then.  Your executor files your will with the probate court and is then granted authority to act.  It is then that the guardians for your minor children have the authority to make legal, medical, general welfare, and lifestyle decisions for your children.

• Your Revocable Living Trust

Your revocable living trust is effective as soon as you sign it; however, your successor trustees don’t have authority to act on your behalf until the trust document says that they do.  For example, trusts typically have provisions for disability (i.e. incapacity.)  When that definition is met, your disability trustees have the authority to act on your behalf and manage trust assets.

The trust is not filed with the court and there is no need for the court to grant authority to the successor trustees (unless your trust provides for such.)  Death (i.e. settlement) trustees have the authority to act upon your death.

You may name a spouse or an adult child as an initial trustee, along with, or instead of, yourself.  Any person named as an initial trustee has authority to act as soon as the trust is signed.

• Your Health Care Proxy

A health care proxy is effective if you cannot give informed consent to accept or refuse medical treatment.

• Your Power of Attorney

A power of attorney is sometimes effective immediately; other times, it’s effective only when you are incapacitated.

• Your Living Will

Your living will is effective if your doctors examine you and determine that you are in an irreversible coma or persistent vegetative state.

If you need additional assistance understanding when your estate planning documents are effective or think your documents are different than described above, consult with a qualified estate planning attorney.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.