Michigan Estate Planning Blog

How Estate Planning Prepares for Unexpected Medical Events

 

Estate planning is more than the distribution of property after a person dies—in fact, a large part of an estate planning attorney’s practice concerns helping people prepare for unexpected medical issues. A recent article from Merrill Foto News, “Know Your Legal Rights: Advance Care Planning Paves The Way For Future Medical Decisions,” explains what steps should be taken.

Anyone over 18 should have certain advance care plan documents in place, although these documents become even more critical as one reaches their later years. People who have been admitted to the hospital for emergency care, treatment for illness, or surgery all need someone else to speak with medical personnel on their behalf.

Having an Advance Directive, which is also known as Health Care Power of Attorney in some states, is necessary for another person to be able to be involved with your medical care. The healthcare law has become very restrictive, and simply being a person’s spouse or child may not be enough to allow you to make critical decisions on their behalf.

It’s best to name two people as your health care power of attorney—a primary and a backup in case the primary is unable or unwilling to act. If you and your spouse are both in a car accident, for instance, you’ll need someone else to advocate for both of you.

Who to name as your agent depends upon your situation. If your adult children live nearby, one of them may be the best choice if they can be counted on to follow your wishes. If no family is nearby, naming a trusted friend may work, unless you and the friend are both elderly. What would happen if your friend predeceased you or was unable to come to the hospital in the middle of the night? Your estate planning attorney can discuss your situation and help you determine the best candidates.

While many fill-in-the-blank Health Care Power of Attorney documents are available, it’s best to have one prepared by an estate planning attorney to reflect your wishes.

Your feelings about artificial life support also may have changed. Before COVID, people often said they didn’t want to be put on a respirator. However, respirators now save lives. Your wishes to be kept alive in the presence of different kinds of medical evidence may have changed from ten years ago. What if your heart is still working and a brain scan shows evidence of mental activities? Progress in medicine has led to more complex questions and answers about patients’ prognoses; you want a healthcare power of attorney document to reflect your wishes, given advances in medicine today.

Your feelings about healthcare decisions may have changed over time, so healthcare directives and an estate plan should be updated similarly to reflect changes in your life and circumstances.

Reference: Merrill Foto News (July 25, 2024) “Know Your Legal Rights: Advance Care Planning Paves The Way For Future Medical Decisions”

What are Risks of a DIY Estate Plan?

 

The number of online tools purporting to create estate plans easily and cheaply makes it tempting to forgo working with an estate planning attorney, but the long-term consequences of a DIY estate plan could be disastrous. A recent article from mondaq, “Risks of DIY Estate Planning” takes a close look at what can go wrong.

Estate and tax laws are both complicated and nuanced. Without an experienced estate planning attorney overseeing the creation of an estate plan, a homegrown plan isn’t likely to achieve the desired results. In addition, chances are good it won’t follow state law. If a last will and testament is found to be invalid during probate, it’s as if there was no will at all.

Estate planning needs to be created for each person’s unique situation. Do family members get along, or should the estate plan be designed to be litigation-proof? Are there large assets held in trust or corporations with complex tax consequences? If there are family members with special needs, have the proper trusts been established to protect them over their lifetimes?

Tax planning is often a significant part of an estate plan. Depending on your state and where you own property or businesses, your estate must consider many different types of taxes. Transfer tax, capital gains taxes, income taxes, and estate taxes are just a few of the taxes to be addressed. If the estate plan doesn’t dovetail with tax liabilities, beneficiaries could find themselves with a far smaller inheritance than anticipated.

Today’s modern family is not as straightforward as in the past. Families come in many different variations, all of which have their own special challenges. Blended families are fairly common, and a traditional “I love you” will, where one spouse leaves the other everything and vice versa, may result in some children being disinherited. Same-sex married couples with children need to be sure their children, biological and adopted, are protected with an estate plan designed to protect all members of the family.

Comprehensive estate plans should address asset distribution issues, guardianship for minor children, and name an executor and heirs. A Power of Attorney is needed so spouses may be involved in each other’s healthcare. Living Wills are required to clarify wishes for end-of-life care, as are Advanced Medical Directives. There are a host of documents to be created and decisions to be made, all of which require the knowledge and experience of an established estate planning attorney.

Reference: mondaq (July 1, 2024) “Risks of DIY Estate Planning”

How to Protect Your Spouse when Diagnosis Is Dementia

 

Few illnesses are as terrifying as dementia, for which there is no cure. If estate planning is in place, it may need to be adjusted to address new, more imminent issues. Reviewing the family situation from a legal and financial aspect is critical, and there is no time for delay, explains a recent article from Morningstar, “’I don’t want my wife to lose everything’: I’ve been diagnosed with dementia –I suddenly could not spell or write legibly.”

There are a number of steps to be taken to smooth the path ahead. First is to update your will and create a financial power of attorney. Don’t try to do this without the help of an experienced estate planning attorney.

This may also be the time to reassess your investment portfolio based on your new financial plan and risk tolerance.

An Advanced Healthcare Directive will inform doctors what actions you want them to take when you cannot make those decisions for yourself. You may want to list your wife as your healthcare proxy to carry out these decisions, but be mindful of the pressures put on a marriage when serious healthcare issues occur. Your spouse will need emotional support as well, and you’ll want to have a successor to your spouse for both the healthcare and POA documents.

Share your situation with trusted family and friends to create a team–a community of people who can provide support, part of which will be updating beneficiaries. Now would also be the time to record instructions for access to devices, documents, and even daily habits.

Long-term care insurance will help with expenses and should serve as an example for anyone reading this article. Policies should be purchased early in life when they are relatively affordable to help alleviate the financial burden of nursing home costs.

An estate planning attorney and financial advisor will help you take an accounting for assets, expenses, and projected long-term care costs. You’ll want a team approach to provide as much guidance as possible.

When to put your long-term care policies into payout status is a difficult decision. You’ll need to time this with a Medicaid plan, which your elder law estate planning attorney will be able to help with.

Now may also be the time to create a trust and divest assets to make it through the five-year Medicaid look-back, using your long-term care policy in the next five years.

There are exceptions to the five-year look-back rule for Medicaid eligibility. They include paying off debts, buying medical devices, or making home improvements to improve accessibility. However, eligibility depends upon income and other assets.

Some states, including Florida and New York, have rules exempting homes from assets calculated by Medicaid under certain circumstances. California eliminated an asset limit this year, making a person’s home automatically safe from Medicaid while they are living, but this does not mean it’s exempt from the Medicaid Estate Recovery Program.

Working with a team of professionals, including an estate planning attorney, and having the support of family and trusted friends will be important as time goes by and the disease progresses.

Reference: Morningstar (Feb. 25, 2024) “’I don’t want my wife to lose everything’: I’ve been diagnosed with dementia –I suddenly could not spell or write legibly”

What is the Most Important Document in an Estate Plan?

 

The priority of every estate plan, regardless of your age, is the medical care documentation. Even while making decisions on other aspects of your estate plan, says this article from Forbes, “Be Sure You Have The Most Important Document In Every Estate Plan,” you should get these documents done to protect your care and comfort for the rest of your life.

Some of the document’s names may vary from state to state. However, your estate planning attorney will know which ones you need.

HIPAA Authorization. The Health Insurance Portability and Accountability Act of 1996 protects patient privacy but also makes it illegal for people you don’t authorize in writing to gain information about your medical status. You’ll need a document authorizing medical providers to discuss your situation with key people in your life. Once the document is executed, distribute copies to medical care providers and the people named in the document.

Living Wills and Advance Directives. Living wills were once simple statements, stating, “If I have a terminal condition and there’s no hope of recovery, don’t prolong my life by artificial means.” These statements are now considered obsolete. Medical science has advanced to a point where it cannot be said with certainty whether someone may improve. There are also disagreements about whether some types of care, like the use of a ventilator, should be considered artificial life support or essential to helping a patient recover from a serious illness.

To address this, some estate planning attorneys create detailed custom living wills, using questionnaires with different scenarios so their clients can decide in any of the situations. Of course, you can’t anticipate every situation, and there can be differences of opinion about diagnosis and prognosis. There are instances where medical providers aren’t given the documents until after treatment has been administered. However, it’s better to express your wishes proactively.

Healthcare Power of Attorney. The limits of living wills and advance directives have led some estate planning attorneys to replace or supplement them with a healthcare power of attorney or healthcare proxy. The HPOA gives one or more people—known as your agents—the authority to make medical decisions if you cannot. The agents talk with your healthcare providers to understand your situation and options. They then make decisions in tandem with the wishes stated in your living will.

Agents need to be available, so you’ll want to name people who are nearby. Appointing more than one agent can provide flexibility in an emergency.

Do Not Resuscitate/Hospitalize. It’s common for older, frail patients to decide they don’t want to be resuscitated or hospitalized. For example, CPR is often declined because while it may bring a person back to life momentarily, their eventual passing may become violent rather than peaceful. The thinking behind DNR orders is this: at some point, hospitalization or treatment for every new ailment only briefly extends life without improving its quality and could reduce the person’s quality of life. Make sure a DNR/DNH is easily accessible to first responders, give medical providers a copy and consider having a bracelet or necklace with these letters.

Once all these documents are executed and circulated, it will be time to focus on distributing property and protecting assets.

Reference: Forbes (Jan. 22, 2024) “Be Sure You Have The Most Important Document In Every Estate Plan”

Is My Estate Plan Set with a Power of Attorney?

A June 2020 Transamerica Center for Retirement Studies survey showed that a mere 28% of retirees have a financial power of attorney (POA)—and many people don’t understand that there are two types of these advance directives that serve different purposes.

MarketWatch recently published an article “Does your estate plan use the right type of Power of Attorney for you?” that says knowing how both types work is crucial in the pandemic, especially in the event that you get sick with coronavirus.

A Durable Power of Attorney for Finance can be either “springing” or “immediate.” “Durable” refers to the fact that this Power of Attorney will endure after you have lost mental or physical capacities, whether temporary or permanent. It lists when the powers would be granted to the person of your choosing and the powers end at your death.

An “immediate” Durable Power of Attorney for Finance is effective, as soon as you sign the document. In contrast, a “springing” POA for Finance means two physicians must first examine you and confirm in writing that you can no longer manage independently.

Therefore, to begin paying your bills, your agent must have those two physicians’ letters, and he or she doesn’t automatically have the authority to ask for them.

When issues, such as doctors’ letters, are required before the agent you chose can serve you, ask your estate planning attorney for guidance.

An obstacle for a Durable Power of Attorney for Finance can come upon you very fast and possibly include you and your spouse at the same time. For example, you both might get COVID-19.

The powers granted by a typical POA for Finance are often broad and permit selling and buying assets; managing your debt, car and Social Security payments; filing your tax returns; and caring for any assets not named in a trust you may have, such as your IRA.

If you recover your capacity, your agent must turn everything back over to you when you ask.

Remember that your advance directive documents are only as good as the people who implement them. You should also make certain anyone named knows that they’ll have the job, if needed. They must know where to find your POA and all other important information.

Reference: MarketWatch (Oct. 9, 2020) “Does your estate plan use the right type of Power of Attorney for you?”

Tough Retirement Decisions for Small Business Owners

Talk about being kicked when you’re already down. That’s the feeling many small business owners have as they ponder retirement in these tough financial times. Surviving the recession is one thing, but retiring in one seems next to impossible. The Wall Street Journal considered this topic in a recent article aptly titled “'The Economy Stole My Retirement.'” If you are a small business owner on the one hand – a role that requires flexibility and ingenuity – and a baby-boomer on the other, then this recession has been more than a case of terrible timing. No, it’s thrust you into “business purgatory.” Do you find yourself with one foot in management and the other foot (or maybe just that big toe) in the golden sands of retirement? A baby boomer who is a small business owner faces a very tough call right now. Should he or she sell for the best offer today, which is generally the low-ball offer, or hold out for some future value which more accurately reflects what the business is truly worth? A tough call, indeed. For the owners of small businesses and the heads of family businesses, make no mistake about the difficulty of your position. It’s impossible to foretell the future, but since you already know what is most valuable to you (your family and your business), take the time to carefully weigh your options and seek appropriate professional counsel.

Reference: The Wall Street
Journal (September 12, 2012) “'The Economy Stole My Retirement'”

 

ELDER LAW

Baby Boomers are discovering that one of life’s most difficult passages is when the child becomes the caretaker for his or her parents. Tough subjects and hard choices can leave us paralyzed when we need to act quickly. Communication, early and often, is critical. The primary problem with understanding and caring for elderly loved ones lies in recognizing a deteriorating mental condition. Alzheimer’s, for one, affects one in eight persons over the age of 65. Simple dementia, on the other hand, is difficult to define, but far more Americans within that age group suffer from it. If your elderly loved ones may be susceptible to Alzheimer’s or dementia, there are certain warning signs to recognize and steps to take. While there is no consensus on exactly how to approach the problem, a recent SmartMoney article titled Talking to Mom About Alzheimer’s and Her Money provides some practical advice on understanding and discussing the problem. Simply put, there are red flags that cannot be ignored. It is necessary to address this subject with your elderly loved one and begin to take steps to provide for their interests and care. At a minimum, make sure fundamental legal documents are signed while your loved one is mentally capable of understanding. Such documents should include Advance Health Directives, a Living Will, a Financial Durable Power of Attorney and a Last Will. Here’s the bottom line: if you and your loved one wait too late to have “the conversation” and take action, then the result may be unnecessary legal fees, courts and costs.

Reference: SmartMoney (May 7, 2012) Talking to Mom About Alzheimer's and Her Money

Reasons for Going “Offshore” With Your Accounts

Offshore accounts have been in the news recently and not without reason. For one thing, the IRS has been gunning for foreign accounts for some time. It just doesn’t like them. Likely, you have seen a discussion (or two… or three) of the topic in connection with Mitt Romney and his use of such accounts. The truth is that such accounts are not all illegal or unpatriotic, and indeed, might just be a good idea. If you’re interested, there are a few ideas to be gleaned from a recent article through SmartMoney regarding offshore accounts. Is the real reason tax minimization? Not always. The article suggests that taxes truly aren’t the sole motivation. Although it should be said that there are advantages, even though the U.S. government still thinks it’s owed a piece on everything you own internationally. For one thing, an offshore account has a measure of “jurisdictional safety,” or more simply put, the U.S. courts have a harder time seizing your assets to satisfy litigation against you. Whatever the reason, it’s a growing trend. One more offshore and growing trend: expatriation. As pointed out in a recent Forbes article, the rate of expatriation has soared 16% in 2011 over 2010. In many ways, the use of offshore accounts and some form of expatriation work together. One thing they do share is that neither is easy and both involve further layers of taxation (like the government would allow such an easy out). If it is something worth thinking about – say if there are foreign and golden sands in your retirement future - it’s worth planning now, especially in light of global politics.

Forbes (February 14, 2012) “Celebrity Leavings: Bidding Stars Adieu”

Small Business Owners – Beware Of New Credit Card Paperwork

Whether you make every deal for your business with a handshake or you fastidiously create, execute, and file away every bit of paperwork, you probably don’t like paperwork. And, you’re not alone. Unfortunately, a new IRS rule may involve even more paperwork for you, if your business gets paid by credit cards. As the Wall Street Journal reports, this year credit-card companies are required to track the dollar amounts that individual merchants get from credit card transactions. In turn, the credit card companies then report this information to both the IRS and the merchant on 1099-k forms. The IRS made the rule so it’s prepared, but is your business prepared? If you’ve been reporting your income properly all along, then you have little to fear. However, it does mean a good amount of extra work if you want to be sure that the credit-card company is correct. This means an entirely new accounting protocol for which many firms are simply unprepared … and are likely unaware they’re about to face. According to Melissa Labant, technical manager at the American Institute of CPAs, the new law "creates an administrative burden to separately account for different transactions — and to break it down month by month if they want to reconcile to the 1099-Ks they receive."

Reference: The Wall Street Journal (November 14, 2011) “New IRS Rule Creates (What A Shock!) More Paperwork”

State Estate (And Inheritance) Taxes In Flux

Not all states are created equal whether that be for business, for beaches, or… for dying. Recently, Forbes released its perennial (and cheery) bit of advice regarding how to avoid state death and inheritance taxes: where not to die in 2012. As you may well know, the federal government isn’t the only level of government to impose wealth transfer taxes. In fact, 13 states and the District of Columbia impose an estate tax, generally with exemption amounts hovering around $1-2 million (far below the current federal rate of $5 million) and with a taxation rate generally pegged at 16 percent. Among the several states, Ohio offers the lowest rate at seven percent while Minnesota tops out at 41 percent. Fully six states impose an inheritance tax, one that hits the recipient of the inheritance rather than the estate from which the inheritance came. And two states actually impose both: Maryland and New Jersey. As we head into 2012, though, it’s worth noting that there has been a lot of movement regarding such state level taxation (with possibly more to come down the road). Some states are keeping their current rates or simply indexing them for inflation, while still others are making large changes. Connecticut, for one, lowered its exemption amount retroactively to be effective from January 1, 2011, at $2 million instead of the previous $3 million. In addition, there were several taxpayer-friendly changes, such as the raising exemption amount in Maine to $2 million up from $1 million and in Vermont to $2.75 million up from $2 million, with gentler tax rates to boot. Ohio actually repealed their estate tax, as many of you will have heard, but that isn’t effective until 2013. Until then, Ohio boasts the lowest exemption amount (i.e., at $338,333), with New Jersey set to take up that onerous title come next year (i.e., at $675,000). What other states are rumbling? Strong movements are underway to end such taxes in states like Indiana, Tennessee, Nebraska, and Oregon, according to the American Family Business Institute. Also, Pennsylvania has just passed a “carve-out” exemption from the state inheritance tax for farmers. In all, 2012 may bring even more changes and fewer estate dangers. Already it seems to be that much safer to pass along your estate. That said, all of this remains to be seen and tax increases may be lurking as state budgets dwindle and the politics grow more toxic. As James Walschlager, an analyst with tax publisher CCH, put it: “Most of the states are still in pretty poor shape, and if the economy doesn’t improve you might see more action by state legislatures seeking other sources of revenue.” There is much to learn about each state and the original article also has a handy interactive map. Here’s to looking forward with optimism… but also with caution.

Reference: Forbes (December 22, 2011) “Where Not To Die in 2012”

Tax Breaks for Caregivers Worth A Look

If you have had to arrange for a caregiver for an aging loved one, then you have some appreciation of the enormity of the costs often involved. It’s important, then, not to overlook tax breaks that just might help reduce the economic pain. A recent article from Forbes offers a helpful reminder. The costs of a caregiver, under certain circumstances, can be partially tax deductible as medical expenses. After all, they are, in fact, very important and very costly medical expenses. However, conditions for taking the deduction essentially amount to proving that fact to the IRS. So, what are some of these key conditions? For one, you must document a care regimen for someone who is chronically ill. This means a licensed health care practitioner has to prescribe it. Unfortunately, it can’t be up to your own discretion, but such prescriptions and suggestions are common for aging persons, especially when they suffer from dementia. Next, there is an expense threshold. Medical expenses are deductible only to folks who itemize, and then only to the extent that the expenses exceed 7.5% of adjusted gross income. Itemizing taxes can be a little more of a burden, but with the associated medical costs involved it is generally easy to qualify. Caregiving expenses are generally rather expensive and include the wages, employment taxes, and actual medical costs along with the associated living costs from meals to even costs of rent, if live-in care is needed. Finally, this deduction is not without caveats and the IRS watches those who try to abuse it. For example, if the cost of the caregiver is covered by insurance (e.g., long-term care or medical insurance) then you can’t double-dip and claim both costs. This is a complicated issue. There are many moving pieces. Fortunately, the Forbes article shares some anecdotes from some illustrative cases and tax court challenges. Nevertheless, if you’re using a caregiver now (or will in the future), don’t overlook this potentially valuable deduction.

Reference: Forbes (December 8, 2011) “Tax Breaks For Caregiving Expenses Help Sandwich Generation”

Estate Planning Challenges Await Unmarried Co-Habitants

Heads up, if you are an unmarried co-habitant (same-sex or opposite-sex)! Regardless whether you share a home, children, and assets you can be no more than well-acquainted strangers in the eyes of the legislature, the broker, and the tax-man. It’s a very real problem to be faced by an increasing amount of the population, given the rise of same-sex marriage and the decline of marriage (or re-marriage) in heterosexual couples. Indeed, from a federal point of view, same-sex marriage isn’t marriage at all. I happened upon an article I had missed out of the September issue of Financial Advisor Magazine and I thought it was worth sharing on this topic. It gives a general outline of the sorts of issues that unmarried cohabitants face when it comes to estate planning. In essence, the problem is that there are very basic laws on the books, laws that have organized our family finances for generations, but unmarried persons don’t benefit from them. In fact, until it is too late, they might not realize the extent to which they won’t benefit from them. Insurance problems abound, as well. And, when it comes to taking care of each other later in life or after death, it likely will be too late to find ways around the problem. Proper planning is always about charting a path for the future, and without certain legal designations you may be bushwhacking it. Better to clear the path for the future today.

Reference: Financial Advisor Magazine (September 1, 2011) “Commingled Finances”

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Study Shows Inherited Wealth Is Squandered

A new and unfortunate statistic confirms what we all intuitively suspected. According to research out of The Williams Group, 70% of all wealth transfers fail. As reported by Forbes here, the failure is not that the money doesn’t get passed down; it is that the family inheritance quickly dissolves in a flash of poor planning, bickering, and waste. How can that be? The research found that the successful 30% had all actively engaged in transition planning, in addition to simple inheritance planning. In a very real sense, all proper estate planning is about both planning for the inheritance and planning for the inheritors. After all, the inheritors are why you want to pass on your assets in the first place. Naturally, then, transition planning is all about bringing the inheritors into the fold and allowing them to learn how to run it. If you have a family business, then this is of the utmost importance. Why? Because for it to remain a “family business” the family has to know about the business, how to run it, and how to think about it. To be successful, hands-on training is required. But then again, aside from a family business asset, there is still a great deal of work to be done to help inheritors properly understand wealth and investments. Likewise, hands-on training in the family wealth, perhaps beginning in philanthropy, can make all the difference. In the end, to overcome the odds against the successful transfer of your family wealth, work together to form a plan, to understand it, and to put it into action.

Reference: Forbes (December 9, 2011) “Wealth Transfers: How To Reverse the 70% Failure Rate”

Decision-Making Declines As Birthdays Increase

Why do many of the most difficult decisions we face come later in life? I guess it’s just fact of life. Unfortunately, we’re not always at the top of our game when those decisions must be made. Therefore, it’s essential to make proper plans earlier, rather than later. According to a recent study, reported on here by the Wall Street Journal, the decline starts around age 60. The scores on a test measuring knowledge of investments, insurance, credit and money basics fell about 2% each year starting after age 60. In fact, they fell from about 59% correct for those in their 60s to a dismal 30% for those 80 and older. What’s almost as bad is that these very people actually grew more confident in their decisions and knowledge. Problem: These are the very same people who are attempting to sift through the messy and confusing programs like Medicare and Social Security, at the very same time they are undergoing this dramatic change in their mental agility. These also are the people who will want to take care of their loved ones in their estate plans in an era of constantly changing laws and regulations. If you are the adult child of older parents, this is something to bear in mind when seeking to help them, perhaps especially when your assistance is unwanted. Likewise, as a parent, fact of life will necessitate a bit of self-understanding. And for everyone, this means that proper estate planning should be done earlier, rather than later.

Reference: The Wall Street Journal (October 30, 2011) “Financial Acumen Declines After 60”

ESTATE PLANNING / ADVANCE DIRECTIVES

From US NEWS & WORLD REPORT MONEY (Feb 25, 2011) “How to Ensure Your Last Wishes Are Carried Out” Retaining control over life decisions and maintaining dignity as the end of life approaches are top priorities for nearly everyone. Retaining control and dignity as the end of life approaches is an often overlooked aspect of comprehensive estate planning. Regardless the size or value of your “estate,” proper planning should address these difficult issues. US News & World Report ran an article last week, How to Ensure Your Last Wishes Are Carried Out. As they outline, there are two primary ways to ensure your final wishes are followed: one is through legal documents, and the second is by communicating your wishes to those who may be involved in carrying them out should you become incapacitated. As regards legal documents, you’ll need a power of attorney for healthcare, also known as a healthcare proxy. Your health care power of attorney allows you designate the person you want to be your health care decision-maker in the event you cannot make decisions for yourself. You also may want to consider a Living Will. A Living Will is the document that helps guide the health care decisions made on your behalf. This is the document that allows you to spell out what types of medical care you would, or would not, want to receive in various situations. The most important piece of advice? Make these decisions now, while you are able. Record them in valid legal documents, and communicate your wishes to those who may be carrying them out. You can read more about Powers of Attorney and Health Care Documents (or Advance Directives) in the Fundamental Estate Planning Practice Center on our website.

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