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Need A Birthday Gift For Your 18 Year Old?

Best 18th birthday gift? A healthcare power of attorney!

I know this may sound like the most depressing gift, but please don’t stop reading! Stick with me and I think you will agree. And a bonus, it’s free.

A Healthcare Power of Attorney is the document that allows an adult to choose who will make medical decisions for them if they cannot. Your 18-year-old may not be the best decision maker, but they can probably make their own medical decisions. They can ask questions of their doctor, seek additional information, weigh options and they are likely healthy. If you are just thinking about today, it seems unnecessary. But it is not about today, it’s about what happens when the unexpected accident or illness strikes a family.  The most common event I see is a parent needing a guardianship because their adult child was in a car accident. This is not surprising given the fact that car accidents are one of the leading causes of injury in the United States.

More times than I can count, parents come to my office because their adult child has been in a serious car accident and unable to communicate. The most common reason the person is unable to communicate is because they suffered a brain injury during the accident.  The parents have been able to continue making decisions for the child based on the surrogate decision maker statutes. This law allows a parent of the patient to make medical decisions if the patient cannot make or communicate healthcare decisions. Sometimes issues come up during the hospitalization that require the appointment of guardian. Surrogate decision maker statutes do not include handling all the needs that may come up, such as signing contracts for long term care facilities or making decisions on patient discharge.

If the person is transferring to a rehabilitation center or needs a decision maker on a long-term basis once they are discharged, the medical providers will often request that the parents seek guardianship so that they have the legal authority to make decisions on an on-going basis.

The hospital is planning for discharge and they inform the family that they will need to obtain legal authority to continue making decisions for their injured adult child. Even if the prognosis is good for recovery, a brain injury can take months or years for recovery, so a long-term medical decision maker is needed.

This is when the family comes to see us. They are distraught over the tragedy and overwhelmed by the change in their lives. Now they are going to court to obtain guardianship over their adult child. This means filing a petition with the court (so much paperwork), getting the adult child appointed an attorney, personally serving them, being interviewed by a court investigator, and attending a court hearing. This added stress is not what they need. And it is expensive.

This is the heartbreak I see in my practice. The family might have avoided the need for a guardian and the stress and expense of a court process if their adult child had a Healthcare Power of Attorney (“HCPOA”). If the HCPOA is properly drafted they could make those medical decisions, as they would be the nominated agent to do so.

HCPOA is important to me because when my kids were younger, we were struck by an impaired driver and my fourteen-year-old son suffered a traumatic brain injury. Don’t worry he is doing awesome now, graduated from ASU and is a teacher! Had he been an adult at the time I would have had to go through the Court, however, because he was a minor, I was able to make the medical decisions for him. Unfortunately, I have watched other families have to go through the Court because their children were adults that did not have a HCPOA. Having this unexpected tragedy occur, I decided when my kids turned 18, I would give them the gift of a HCPOA.  As you can imagine, when I presented them with their gift they groaned and rolled their eyes a little, but eventually they came around, realizing it is an amazing gift for them and for their parents.

Having the HCPOA ensures that if something happens to your adult child, you can take care of them immediately and long term. It allows the family to focus on the person injured or impaired and to not be distracted with the expense and process of having to seek guardianship through the court.

As I mentioned, it is free to create your own HCPOA! The Arizona Attorney General’s website has a free Lifecare Planning Packet, which includes all of the documents you need. CLICK HERE to visit the Arizona Attorney General’s website.

Congratulations on your child turning 18 and give them the gift of planning and protection!

Written by: Jennifer Kupiszewski, Esq.

I Did My Estate Plan, Now What?

 

Congratulations! You’ve made the decision to move forward in completing your health care power of attorney, living will (for end of life decisions), financial power of attorney, Last Will & Testament, maybe a Trust and maybe a Nomination of Guardian (if you have minor or disabled children). You have taken a huge step in making the process to care for you while you are alive, and to distribute your assets on death, a lot easier.

So what now? Are you done?
Of course not! Here are some things to think about:

Include a listing of your accounts, IRAs, house addresses, and deeds if you have them, with your estate planning documents.  Be sure to update the information as things change.
Include a copy of the beneficiary designations for your IRA, 401(K) and life insurance policies with your estate planning documents.

Do the people you have named in the documents as your decision makers know they are named?
Tell your decision makers where they can find the documents and provide copies of your Health Care Power of Attorney and Living Wills to your Agents.

Do you have a safe deposit box? Does your Agent or Trustee know where the key is located and information about the box? Is it titled to the Trust or are there are other people with signing authority?
If you have a trust, have you retitled your non retirement accounts into the name of the Trust?
Did you complete a personal property memorandum or other document to distribute any special items of your personal effects (jewelry, furniture etc) to specific people?
Do you have someone named to care for your pets?
Does anyone have a key to your home in case of emergency?
Have you done any preplanning for your burial or cremation and if so, have you included a copy of those document with your estate planning documents? 
Do your decision makers know about your preplanned cremation or funeral?
Do you have a long term care insurance policy and does your health care Agent know about that policy and where to find information?
If you have minor or disabled children, write a letter to the child’s guardian about allergies, preferences, government benefit information and other important information.

Your estate planning documents give people authority to make decisions for you during your life and to protect and administer your estate when your gone.  Give them the tools to make that easier during a time that will undoubtedly be difficult. For more information check out our website at www.kilekuplaw.com. We have lots of information and resources.

Written by: Jennifer Kupiszewski, Esq.

Useless Estate Planning? 5 Things to Know So Your Estate Planning Doesn’t Become Useless

 

Our firm does a lot of estate planning. Our clients are encouraged to come back and update their plan periodically, especially if there have been changes in their lives. Once the family has created their estate plan and done the work, we don’t want to see them have a plan that’s outdated and does not function as intended.

Is having an out-of-date will better than having no will at all? Estate plans do not have expiration dates, but changes to state laws or changes to the families circumstances can render the plan ineffective. When this happens, having an out-of-date will may have the same effect as having no estate plan at all. It is important to review your will periodically to ensure it still does what you want. It may also lead to litigation if the beneficiaries don’t agree on how to handle the situation.

What can make your estate plan out of date?

The estate beneficiaries have died. For example, you left your estate to your two siblings but they both died before you and you never updated the beneficiary designations. If your beneficiaries die before you, your will is still technically valid. However, it will have no effect on who will inherit from your estate because you didn’t provide direction. Instead, your estate will be distributed as if you had died with no will at all. 

You have new beneficiaries. If you got married or had more children after you drafted your estate plan, the plan will be only partially helpful. Arizona has statutes that protect spouses and children that come after a estate plan is written. As a result, it may be that Arizona law will determine where your estate is going, not you.

The Personal Representative is deceased or unable to serve. The personal representative is the person nominated in your will who administers the estate and distributes the property. If the person you named as the personal  representative is unable to serve, the court will have to appoint someone else. Your estate beneficiaries may have a say in who is chosen, but you will have lost the ability to choose.

The property identified in the estate plan is no longer owned by you. Let’s say your intent was to divide up your estate equally by giving cash to your daughter and a home of equal value to your son. If the home is sold before you die, your son will receive nothing. Your estate won’t be divided 50/50, rather it will be inherited 100% by your daughter. Is this what you wanted?

The law changes. If your estate plan was designed specifically to avoid estate taxes or to take advantage of certain tax benefits and the laws change, your plan may no longer serve its purpose. This is why it is important to check in with your estate planning attorney.


What can you do now? Well, you did most of the work when you made your estate plan, now you just have to do the maintenance. Let us know if we can help you keep your estate plan up to date.

Written by: Jennifer Kupiszewski, Esq.

The Importance of Long Term Care Planning

Why Estate Planning is so Important for Long Term Care Planning?

Daily, clients call our office and tell us, “My mom has dementia and I don’t think it is safe for her to be home alone any more and she cannot afford to have 24 hour home care or go to a group home or memory care unit”. During our consultation, I ask the family member to provide me with copies of the current estate planning document and most importantly the financial power of attorney.

Without a financial power of attorney, if mom is no longer competent to sign documents, we might have to go to Court to get permission to sell the home and manage the resulting funds. This could be true even if mom’s spouse is still living as there is no statutory right to sell a house for someone.

Additionally, if mom’s income is higher than the cap, we might need to create and fund an Income Only Trust or Miller Trust. Again, without specific authority in the documents, we could need a Court action to get that in place and unfortunately, court matters can take time and be fairly expensive.

Although accessing ALTCS (Arizona’s Medicaid program that helps pay for long term care costs) is the last resort, trying to preserve some of the assets of the person in need can still be a goal. ALTCS does not pay for hearing aids, dental care or a private room. Additionally, it can take 3-6 months to get an approval from ALTCS and typically there is no retroactive pay unless the person is in a nursing home.

The power of attorney document might allow the Agent to make gifts of mom’s property or get paid for acting as the Agent. This might allow us to do some planning to maximize the remaining assets and still obtain ALTCS benefits. While making gifts or transfers of mom’s property might delay when ALTCS will be available, doing so does not necessarily mean that benefits will never be available.

Even if the decision is made not to move forward with ALTCS planning, obtaining a reverse mortgage on the property, getting a home equity line of credit to pay for care, or just to sell the house will still require you to have a power of attorney.

Written by: Emily B. Kile, Esq.

Terms Defined: Mental Health Care Power of Attorney

What the heck is a Mental Health Care Power of Attorney?

In prior blogs, we have stated that your estate planning is valid in Arizona so long as it was valid in the State in which you signed the documents. That is still true, but Arizona has an extra requirement if you need inpatient mental health treatment.  

It might be uncomfortable to think about being admitted to a locked psychiatric hospital.  However, if you need treatment in such a setting, the mental health power of attorney or a specific provision in your health care power of attorney, might mean that a court guardianship may be avoided.  

In order for someone to try and obtain help for someone who needs inpatient treatment, this document is crucial. In most cases, someone experiencing a mental health crisis might end up at the medical hospital for an evaluation. Sometimes, the psychiatric hospital can send someone to the person’s home to perform that evaluation.  And of course, sometimes the matter is an emergency and law enforcement might need to be involved.  

In all circumstances, someone needs authority to involuntarily admit another person.  The mental health provisions in the health care power of attorney or a separate mental health care power of attorney might be sufficient to meet that goal. If the following language is in the power of attorney and is initialed by the Principal, then the Agent should have this added authority:

By initialing here, I consent to giving my agent the power to admit me to an inpatient or partial psychiatric hospitalization program, please initial here: ____ (initial if you consent)

What if your loved one did not sign a Mental Health Care Power of Attorney or the provision above? Often that means a guardianship with mental health care and treatment authority will need to be filed with the court. The State of Arizona can also petition for the authority needed to hospitalize and treat the person under some circumstances.  

It is certainly scary to think you might need be hospitalized for mental health reasons, but you certainly want to be able to indicate the decision maker!  A free mental health power of attorney can be found at the Attorney General’s website:  www.AZAG.gov

Written by: Emily B. Kile, Esq.

 

Terms Defined: Powers of Attorney

Durable Power of Attorney, Financial Power of Attorney, Springing, Immediate

Oh my, so many words and so much confusion! It is important to understand that regardless of whether you call it a Financial Power of Attorney, a Durable Power of Attorney or a Durable Financial Power of Attorney, the document itself is the determining factor of who makes decisions, when they get that authority and when that authority ends. Starting with the basics. The intended purpose of such a document is to allow someone to be able to access and manage assets for you; money, bank accounts, retirement accounts, life insurance, homes, land, etc. If you have a Trust, this document has very limited authority so long as the assets are titled to the Trust.

The powers of the Agent go into effect when the document says they do. For example, it might say that the Agent’s authority is effective when the document was signed. Or, it might say that the Agent’s authority is only effective when one doctor provides written evidence that the Principal is incapacitated because he/she is no longer able to manage financial decisions. The document might also say that it is effective immediately as to the Initial Agent (maybe your spouse or a child) but as to all other Agents it is only effective upon incapacity. A document that requires some event (like incapacity) to occur before it is deemed “activated” is called a springing power of attorney. Think about how you want your document set up and review it to make sure it meets your goals.

The Financial Power of Attorney must be signed by both the Principal and a witness in the presence of a notary. The witness and the notary cannot be the same person. While that might seem obvious, we have seen documents where the notary and witness are the same person. Additionally, the witness cannot be the agent, the agent’s spouse, or the agent’s children.
If your Financial Power of Attorney was validly executed in a State other than Arizona, it remains valid in Arizona. 

So, what does “durable” mean in the Power of Attorney- oddly, it means that it remains valid after incapacity and does not terminate by a certain date. However, Financial Powers of Attorney do terminate at the death of the principal. Therefore, once you die, the Agent under your Financial Power of Attorney will no longer be able to act on your behalf. At your death, your Will, Trust or the beneficiary designations you have created will control the disposition of your property.

Many financial institutions have their own forms. Be sure and check with your banks and other financial institutions to ensure that your Agent will have access to your account when needed.

Written by: Emily B. Kile, Esq.

NEW Webinar – Estate Planning And Paying For Care: ALTCS and VA Benefits by Emily B. Kile, Esq.

PRESENTED BY
Banner Health
 
FEATURING
Emily B. Kile, Esq.
 

Do you have questions about estate planning? Long term care planning? Well you’re in luck! This webinar, sponsored by Banner Health, features Emily B. Kile, Esq. who has over thirty years experience as an estate planner. The program starts with Emily explaining the basics of estate planning. The  audience was able to ask questions that are likely on your mind as well; an example being, “Why can’t an IRA be titled to a Trust?“. Emily goes on to explain Healthcare Powers of Attorney, Living Wills, Do Not Resuscitate instructions and how COVID-19 is currently impacting peoples estate planning decisions. As Emily is also an experienced long-term care planner, she touches base on the costs of long-term care and the available options to pay for such, including financial and medical eligibility for Arizona Long Term Care Services (“ALTCS”).
 
This webinar was created to help you understand the intersection of estate planning, long-term care and VA benefits so you can better protect yourself and your loved ones.
 
 


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