Michigan Estate Planning Blog

The Coming ‘Great Wealth Transfer’ and Estate Planning

 

As a huge number of baby boomers turn 65 from now through 2027, most people should be thinking about managing their money amid the so-called “great wealth transfer,” when as much as $72 trillion is expected to move from one generation to the next. A recent article from MarketWatch, “As a $72 trillion ‘great wealth transfer’ is set to begin, here are 4 estate-planning rules to follow,” offers some tips.

Every adult should have a last will and testament and a financial power of attorney, so someone can manage their financial affairs if they become incapacitated. You’ll also need a healthcare proxy to name a person who can make medical decisions on your behalf.

Update beneficiary designations on 401(k)s, investment accounts and any financial accounts naming a beneficiary. Whatever is on those documents supersedes trusts and wills. These should be reviewed every few years or after any major life events like marriage, divorce, the birth of new children or grandchildren, or the death of a beneficiary.

Secure your important documents and make sure your executor, trustee and a trusted family member know where they are. The executor should also have contact information for your estate planning attorney, CPA and financial advisor.

Review your overall estate plan every three to five years. If your estate plan was created when your children were minors and now they’re adults, it’s time to revisit your estate plan.

A will alone might work for a simple estate. However, if you have complicated finances or significant wealth, you should talk with your estate planning attorney about a Revocable Living Trust. Putting assets into trusts allows assets to pass to beneficiaries without going through probate, which is often expensive and time-consuming. Once the trust is established, you’ll need to fund it by retitling assets, so they are taken out of your estate and owned by the trust.

Wills, trusts and estate planning documents should be reviewed and updated on three occasions: every three to five years if your life doesn’t change much, every time there is a major event in your life, commonly called a “trigger” event and whenever there is a large change to tax laws.

The estate planning community is now preparing for the possible end of the Tax Cuts and Jobs Act of 2017, which raised the federal estate and gift tax exemptions to historically high levels. Unless the rule is extended, on January 1, 2026, these limits will return to previous amounts, with estates around $7 million subject to federal estate taxes. If your wealth is near the $7 million mark and you haven’t met with your estate planning attorney to prepare for this potential change, now is the time to make an appointment.

Once your estate plan is up to date, it’s a good idea to have conversations with family members, the people you’ve named as executors, power of attorneys and beneficiaries. If you have a plan but haven’t shared it with children or heirs, it could lead to family fights, even leading to litigation.

Your estate planning attorney will help create an estate plan to meet your needs and protect your loved ones. It’s a task to tackle sooner, rather than later.

Reference: MarketWatch (April 3, 2025) “As a $72 trillion ‘great wealth transfer’ is set to begin, here are 4 estate-planning rules to follow”

Estate Planning Is More than a Last Will and Testament

 

Most retirees know they should have a last will and testament. However, surprisingly few have updated wills. A recent article from msn.com, “6 Legal Documents That Most Retirees Need—but Don’t Have,” says only about 52% of retirees have a last will, and most lack other crucial documents needed to protect themselves and spare their loved ones additional grief. The documents discussed below should be part of your estate plan. If you don’t have them, consult with an estate planning attorney in your community, as they are state-specific.

Medical power of attorney or healthcare proxy. This document lets a person of your choosing make medical decisions on your behalf if you cannot. When would you need a medical POA? If you are terminally ill, seriously injured, in a coma, receive a diagnosis of dementia, or at the end of life, you need a POA. Not only does this document let you decide who will make these decisions, but it also alleviates tremendous stress, including a lifetime of second-guessing, by your loved ones.

Advanced directive or living will. You will have the opportunity to express your preferences for end-of-life care if you can’t communicate because of an illness, accident, or another condition preventing you from responding. The advanced directive doesn’t go into effect until you are unable to communicate. Use this document to express what kind of care and treatment you want and don’t want during an emergency and the exact circumstances in which you want your choices to be honored.

Financial power of attorney. People with a financial POA have chosen the person they trust most to act on their behalf when it comes to paying bills, running a household, overseeing investments, or even selling a family home. Here’s what most people don’t know about a POA: you can, and should, make it as personal as possible. If you want your sister to pay your bills but cannot make charitable donations, your POA can include this. If you don’t have a financial POA, loved ones will need to go to court and petition for guardianship, which is costly and time-consuming.

Funeral and burial arrangements. No one likes to think or talk about dying, funerals, or memorial services. However, if you don’t tell your loved ones what you want or make arrangements for yourself, loved ones or funeral homes will make those decisions for you. Whether you care about what service you have or don’t want a service at all, creating a plan will be a kindness to your family.

HIPAA waiver. Few people seem to be aware of the importance of a HIPAA waiver, which creates a lot of headaches for loved ones. If you haven’t signed a HIPAA waiver, doctors and insurance companies cannot speak with your designated person about your healthcare and insurance coverage. If you become incapacitated without a HIPAA waiver, your family won’t be able to receive updates on your care. The laws enforcing HIPAA are extremely restrictive, so this is a good document to have in place long before it’s needed.

Trusts. When you create a trust, you create a legal entity to own property, taking it out of your taxable estate. Trusts allow assets to pass directly to beneficiaries, and depending upon the type of trust you use, there are many different types, and you may gain substantial tax advantages. Your estate planning attorney will know which type of trust is best for the circumstances.

Everyone should have a last will and the aforementioned documents to protect themselves and their loved ones. Life happens, and this kind of planning is invaluable. Make an appointment to meet with an estate planning attorney to create your own estate plan. If it’s been more than three to five years since you’ve had your estate plan reviewed, it’s time to take care of it.

Reference: msn.com (Jan. 13, 2025) “6 Legal Documents That Most Retirees Need—but Don’t Have”

Estate Planning Is Essential for Unconventional Couples

 

A sad story appears in a recent issue of The Parkersburg News and Sentinel, “Legal-Ease: ‘How things might have been.’” It explains what happens to a couple who had lived together for three decades but never planned for each other’s illness or death.

When Bill became ill, his overbearing brother commandeered the hospital room and refused to let Bill’s companion of thirty years, Denise, visit. When Bill died, the same brother barred Denise from the funeral home. Denise was left out of Bill’s obituary and made to leave the home she and Bill had lived in for many years. The brother cleaned out the entire house. He also took the couple’s beloved dog.

Bill’s brother was well within his legal rights to do all of these things, since the couple had never done any estate planning to protect each other. There are many things that they could have done to protect each other.

Bill and Denise should have created and executed medical powers of attorney, naming each other to make medical decisions when they could not make their own decisions. This document would have given Denise the legal power to be in Bill’s hospital room and talk to his physicians. It would also have ensured Denise’s ability to visit Bill and arrange care for him either in a nursing home or at home.

They could have also used the Medical Power of Attorney to nominate each other to be appointed by a court as a guardian if ever needed, avoiding Bill’s brother’s taking control of care by a court order.

If the couple had created Living Wills stating their choices for end-of-life care, each could have made sure they knew what the other wanted and ensured their wishes were followed. For example, a Do Not Resuscitate (DNR) order is used to prevent healthcare providers from performing CPR on patients if they have a heart attack while incapacitated. CPR can leave patients with broken ribs and punctured lungs, and some elderly patients or those near the end of life often choose not to have CPR. Without a DNR order, healthcare providers or emergency responders must, by law, perform CPR.

At the very least, Bill and Denise should have each signed a Durable Power of Attorney, naming each other as their representative for all legal and financial matters. This would have allowed Denise to take care of Bill’s financial and business matters. Bill could have also added a provision in the POA stating that he did not want his brother to be involved.

For unmarried couples, trusts are used to provide protection for the surviving partner. For instance, if the house had been put into a trust with Denise as a trustee, Bill’s brother would not have ownership of the home, and Denise would not be unhoused.

Bill and Denise could have named each other as beneficiaries on a variety of financial accounts, including life insurance, IRA accounts and investments. Upon Bill’s death, these assets would have been paid directly to Denise.

If Bill and Denise had used wills to name each other as executors as well as heirs, they could have left all their worldly possessions to each other and served as administrators of each other’s estate. While a will is not as bullet-proof as a trust, having a will could have protected Denise from being left out in the cold.

Regardless of marital status, couples who want to take care of each other throughout their lives should meet with an estate planning attorney to protect each other. Death and incapacity aren’t limited to married couples, after all.

Reference: The Parkersburg News and Sentinel (Jan. 8, 2025) “Legal-Ease: ‘How things might have been’”

New Year’s Estate Planning Resolutions for 2025

 

You're in good company if your New Year’s resolutions included estate planning. Many people who put off creating or reviewing their estate plans in 2024 have resolved, once again, to take care of this vital task in 2025. A recent article from Coeur d’Alene/Post Falls Press, “Estate Planning in 2025: A New Year’s Resolution worth keeping,” reviews the basics of estate planning.

Last Will and Testament. It expresses how you want assets to be distributed and who your executor should be—the person in charge of asset distribution. Suppose you’ve had significant changes in life, like moving to a new state, welcoming a new family member through birth, adoption, or marriage, losing a loved one, or changing beneficiaries. In that case, you’ll need to review your estate plan.

Revocable Living Trust. Many kinds of trusts exist. However, a Revocable Trust is most commonly used to help heirs avoid a lengthy and expensive probate process. Trusts allow assets to pass directly to beneficiaries, and their contents remain private, which many prefer.

Power of Attorney Documents. A POA designates who you want to make decisions for you if you become incapacitated. A Durable Power of Attorney is used to name the person you want to be in charge of your financial affairs and should be drafted to meet your unique needs. For instance, you may want someone to be able to pay your bills and maintain your home but not sell your coin collection. A Medical Power of Attorney allows someone of your choosing to be involved in your healthcare decisions and talk with healthcare providers.

Living Will and Advanced Medical Directives. This is the document where you express your wishes if you are terminally ill and not likely to recover to what we consider a “normal” life. It addresses matters like receiving life support like artificial nutrition, respiration, and other means of being kept alive. These documents spare your loved ones the ordeal of guessing what you would want in a medical crisis and are a kindness to have in place.

Designated Beneficiaries. Regularly reviewing accounts with named beneficiaries should occur while you’re working on your estate plan. Most retirement accounts and pension funds allow you to name a beneficiary. These pass outside of the probate estate, so you’ll want to be sure they are up to date. You may also have bank or investment accounts with beneficiary designations, so check those.

Getting your estate plan done is one New Year’s resolution you’ll be glad to have kept!

Reference: Coeur d’Alene/Post Falls Press (Jan. 5, 2025) “Estate Planning in 2025: A New Year’s Resolution worth keeping”

How Does a Special Needs Trust Work?

 

The most straightforward description of a special needs trust is designed to hold assets for a disabled person without putting benefits received from the government at risk. It’s essential for those planning for a loved one’s future to understand how special needs trusts work, how they are funded and what they can and cannot accomplish. A recent article appearing in Success, “What Is a Special Needs Trust?” provides more insight.

Individuals with disabilities who qualify for financial support through Medicaid or Supplemental Security Income (SSI) must have limited assets and income. They become ineligible for benefits and resources if they exceed their state’s limits. A Special Needs Trust (SNT) keeps assets separate.

An estate planning attorney creates the SNT and names a trustee for the funds. The trust's assets are to be used for housing, transportation, education, health and other expenses not covered by government benefits.

In some cases, the SNT shouldn’t be funded until necessary. Once money or other assets are in the trust, its use is restricted. Parents are advised to ensure that well-meaning grandparents or other family members don’t bequeath assets directly to their disabled loved ones. They have the option of creating an SNT of their own or bequeathing assets to the SNT created by the parent.

There are different kinds of SNTs. A Third-Party Special Needs Trust is created by a parent or other involved person to benefit a disabled child. If any assets are in the trust when the beneficiary of the trust dies, the person who created the trust decides who receives them. They may choose to donate the assets to a charity or a family member.

If an adult becomes disabled later in life, a different type of trust is used: a First Party Special Needs Trust. These trusts are created to own the assets of the disabled individual. For instance, if someone becomes disabled due to a car accident and receives a legal settlement, the money would go into the trust. This allows the disabled person to continue to receive government benefits. When the person dies, the funds spent on their care are paid back to the government through the Medicaid Repayment Program.

Parents or loved ones need several other legal documents to protect themselves and their disabled family members. An estate planning attorney will draft a will to ensure that the parent’s assets pass into the Special Needs Trust. Everyone should have a Power of Attorney and Medical Power of Attorney to protect themselves in case of incapacity.

Checking beneficiary designations is especially important if a family member receives funding from a Special Needs Trust. The person named on the beneficiary designations receives assets upon the owner’s death, which could put their government benefits at risk. All assets must go into the Special Needs Trust to protect their Medicaid eligibility.

Planning for the future is essential for parents of disabled children and adults. It can’t fix everything, but it can relieve some of the worry, knowing that their loved one’s future is protected.

Reference: Success (Oct. 20, 2024) “What Is a Special Needs Trust?”

What Is Needed for End-of-Life Planning?

 

Becoming incapacitated or dying without planning isn’t uncommon. Nevertheless, it is harmful to loved ones who are left to address the legal and financial aspects at the same time they are experiencing the grief of loss. What needs to happen is addressed in an article from Twin Cities Pioneer Press, “Your Money: A balanced approach to end-of-life planning.”

End-of-life care is expensive. Costs rise as the person moves through the different stages of illness or age. Medicare doesn’t cover long-term nursing care in a facility or at home, so resources without planned protection will rapidly be exhausted. An estate planning attorney can help the family prepare for these costs, but only when planning takes place in advance.

Once incapacitated, people cannot legally sign and execute legal documents. If the family hasn’t arranged for a Power of Attorney or Medical Proxy to be created while the person is still legally able, the family may be faced with the additional expense of going to court to petition for guardianship and/or conservatorship.

There are five basic estate planning documents to be prepared. While every adult should have these documents, they become more critical when someone is closer to passing.

Last Will and Testament. A will directs how you want your assets to be distributed upon your passing. It may include personal property, real estate, jewelry, family heirlooms and any other material goods. Note the will becomes a public document when the estate goes through probate, so don’t include any account numbers or information you don’t want to read by others.

Healthcare Directives. Privacy laws are strict, and healthcare providers are limited in what they can discuss with spouses and children if the right documents are not in place. A Medical Power of Attorney or Healthcare Proxy is needed for family members to be involved in medical decisions. A HIPAA Release Form should be created to access health care and health insurance records.

Many accounts, including bank and investment accounts, IRAs, SEPs and life insurance policies, have beneficiary designations, where a person or persons are named to receive the asset upon the original owner's death. Make sure these are up to date to reflect the owner’s wishes.

Trusts take assets out of an estate for tax and wealth transfer purposes. The person creating the trust dictates how and when the beneficiaries should receive assets. Distributions can occur over an extended period or when certain conditions are met.

Meet with an experienced estate planning attorney if you or a loved one is ill and may be approaching the end of life. Putting an estate plan in place ensures that wishes are fulfilled and spares the family from having to guess what a loved one would have wanted in their final days.

Reference: Twin Cities Pioneer Press (Oct. 12, 2024) “Your Money: A balanced approach to end-of-life planning”

Do I Need a Will?

 

 

Even after living through the global COVID pandemic, many people still don’t understand why they need a will and estate planning documents. One survey revealed as many as 40% thought they didn’t need an estate plan because they don’t have enough assets, says a recent article from Pittsburgh Post-Gazette, “Elder Law Guys: Having a will can bring peace, for you and your loved ones.” Even more worrisome, many of these people have minor children, who will be left unprotected if there is no will naming a guardian for them if their parents should die.

We’ve all read the stories of estate battles following the death of rich and famous people. Regardless of their age, marital status, or notoriety, their personal lives and finances became public headlines without a will and estate planning.

Regular people don’t want their loved ones to go through the mess of an estate battle, even if their personal news won’t become hot news on the internet. Here’s what to do to protect yourself and your family.

Make an inventory of your property. Include everything: your home, bank and investment accounts, personal possessions, retirement funds, life insurance, cars, boats and shares in a family business. Listing out who gets what in your will can avoid some (but not all) fights among relatives and siblings.
Even if you rent a home, if you’re employed and have a 401(k) and a bank account, you’ll want to be sure the people you care about inherit your property.

If yours is a blended family, or if you and your partner aren’t married, estate planning is even more critical. Estate planning is how you ensure that your biological children inherit your assets. If you’re not married, you need to take extra care, so you and your partner protect each other in case of a health emergency as well as for property distribution after death.

For parents of young children, a will is essential. Your will is the document used to name who you want to raise your children—a guardian. Without it, the court will decide, and it may not be the person you would have wanted. Your estate plan is also how you determine how children’s living costs will be paid. Your life insurance policy might belong in a trust, with a trustee named to oversee how funds are distributed to the guardians.

Your will is also used to name an executor, the person who will administer your estate, distribute assets, pay final taxes and estate taxes and ensure that your wishes are followed. An executor needs to be organized, responsible and trustworthy.

An estate plan should include documents to protect you while you are living. These include a Power of Attorney for financial and legal decisions in case of incapacity. A Healthcare Proxy or Medical Power of Attorney is needed so another person can be involved in your medical care, if you’re unable to speak for yourself. An experienced estate planning attorney will also discuss the need for a Living Will and other documents you might want to have.

The peace of mind resulting from having an estate plan in place can’t be measured. Knowing that you’ve protected your loved ones and yourself in life and after you’ve passed is a worthwhile investment.

Reference: Pittsburgh Post-Gazette (Sept. 22, 2024) “Elder Law Guys: Having a will can bring peace, for you and your loved ones”

Estate Planning When You’re Single

 

For one woman, the wake-up call arrived when listening to a friend explain all the tasks she needed to perform for her 91-year-old mother, whose needs were increasing rapidly. Solo agers, people who are growing older without spouses, adult children, or other family members, are now a significant part of the older population, says the article “Going Solo: How to Plan for Retirement When You’re on Your Own” from The New York Times.

Seniors who are married or have adult children have many of the same retirement planning issues as their solo ager counterparts. However, figuring out the answers requires different solutions. Managing future healthcare issues, where to live and how to ensure that retirement savings lasts needs a different approach.

Options must be addressed sooner rather than later. Estate planning is a core part of the plan. While you can’t plan everything, you can anticipate and prepare for certain events.

Determining who you can count on in a healthcare crisis and to handle your financial and legal issues is key. This is challenging when no obvious answers exist. However, it should not be avoided. You’ll need an estate plan with advance directives to convey your wishes for medical treatment and end-of-life care.

An estate planning attorney will help draw up a Power of Attorney, so someone of your choice can step in to make legal and financial issues if you become incapacitated. You’ll also want a Healthcare Proxy to name a person who can make medical decisions on your behalf if you can’t communicate your wishes. While it’s comfortable to name a trusted friend, what would happen if they aren’t able to serve? A younger person you know and trust is a better choice for this role.

A Last Will and Testament is needed to establish your wishes for distributing property. Your will is also used to name an executor who administers the will. Think about people you trust who are a generation or two younger than you, like a niece or nephew or the adult child of someone you know well. You’ll need to talk with them about taking on this role; don’t spring it on them after you’ve passed. Just because someone is named an executor doesn’t mean they have to accept the role.

Where you age matters. From safety and socialization standpoints, aging alone in a single-family home may not be the best option. Having a strong network of friends is important for the solo ager. Moving to a planned community with various support systems may be better than aging in place. Explore other housing options while you are still able to live on your own, so you can make an informed choice if and when the time comes for community living.

A combination of professional help will make the solo aging journey better. An experienced estate planning attorney, financial advisor and health insurance source can help you navigate the legal and business side of your life. Check with your town’s senior center for available social services and activities resources.

Reference: The New York Times (Sept. 21, 2024) “Going Solo: How to Plan for Retirement When You’re on Your Own”

What Happens When Blended Families Ignore Estate Planning?

 

The idea of a “Brady Bunch” family, where two adults with children from prior marriages blend their families, is filled with good intentions. With time and patience, a real family can be created if all parties are willing participants. That is until one of the parents dies and the will is revealed, according to the article “The Brady Bunch Breaks Down: Estate Fights Tear Stepfamilies Apart” from The Wall Street Journal.

The typical estate plan for couples and their families is for the surviving spouse to inherit all the assets when the first parent dies. In a blended family, non-biological children are often disinherited. The spouse has no legal obligation to give anything to the biological children, and, making matters worse, the stepsiblings will inherit the deceased stepparent’s assets.

All of the work to blend the families can be undone. The stories are heartbreaking: children changing locks and kicking out their stepmother before the funeral, adult children learning they’ve inherited nothing, while the stepmother receives a lifetime of assets.

Good planning with an experienced estate planning attorney can prevent these and other ugly scenarios.

Establishing a joint trust to give children equal shares after the second parent dies sounds like a good idea. However, if the stepparent moves the assets into a new trust and names their own biological children as the beneficiaries, the first parent’s children are disinherited.

Creating separate trusts can work. However, they need to be iron-clad. Other options are distributing assets while the parent is living or leaving a specific amount (either a dollar amount or a percentage) in the will directly to the named children. Some families keep biological children in the estate plan and fund a separate trust for the spouse and stepchildren.

A prenuptial agreement is a good tool for blended families. However, it should be in addition to, not instead of, an estate plan.

In some states, the default rule is for the surviving spouse to keep half the community property and have no right in the deceased’s separate property. Most states also allow a surviving spouse to claim an elective share, typically a third or half of the estate.

Another problem that blended families must address is planning for illness and incapacity. The spouse usually makes medical decisions and funeral arrangements. However, stepchildren may have different ideas than their stepparents. Both parents should have their wishes expressed in documents, including a Power of Attorney, Healthcare Power of Attorney, Living Will and whatever documents are required by state and federal laws.

Consider naming an executor or trustee who is neither a biological child nor a relative. Having someone who is impartial and trustworthy could relieve pressure on the children.

An estate planning attorney can clarify the possible issues arising for stepfamilies regarding asset distribution, asset protection, medical directives and planning for incapacity.

Reference: The Wall Street Journal (June 1, 2024) “The Brady Bunch Breaks Down: Estate Fights Tear Stepfamilies Apart”

Caregiving and Estate Planning Provides Peace of Mind for All Generations

 

If your goal is to keep the farm, ranch, or small business in the family, planning, including estate planning and caregiving, is the number one strategy to making it happen. Families may dissolve the farm or business without advance planning to pay for long-term care expenses. A recent article from AgWeek, “Caregiving plans can provide peace of mind for farming and ranching families,” explains what needs to be done.

Part of the issue is that most ranchers and business owners won’t qualify for Medicaid because they own a significant asset. Having to sell off something they’ve worked their entire lives to build is often a result of no planning.

If you have a long-term care insurance policy, it needs to be carefully reviewed to determine what conditions need to be met for benefits to be paid. For example, most policies have a “waiting period,” so you’ll need to plan how to pay for caregiving during the months before the policy kicks in.

There’s also confusion about the difference between Medicare and Medicaid. Medicare is health insurance for medical expenses, while Medicaid is usually used for long-term care and caregiving needs. However, Medicaid is a needs-based program. An estate planning attorney can help the family determine what needs to happen in advance, whether the goal is to protect the farm, ranch, or small business while helping the aging parent become eligible for Medicaid.

Estate planning includes planning for incapacity, which can occur at any time but is more likely as we age. Suppose the individual hasn’t completed a power of attorney, healthcare power of attorney, and other medical directives. In that case, the family will need to go to court to obtain conservatorship or guardianship to take over the person’s financial matters and make healthcare decisions on their behalf. An estate planning attorney can help the family prepare the documents and create a plan.

Having an estate plan in place is also another means of protecting the family’s assets from elder abuse. Everything needs to be documented, and records need to be well-organized so every family member knows where documents are, where assets are and the plan for the inevitable events of aging.

Meeting with an estate planning attorney to create the last will and testament, power of attorney and all other planning documents can minimize the stress and costs involved. Without planning, everything becomes far more complicated, costly and stressful for all concerned.

Reference: AgWeek (May 14, 2024) “Caregiving plans can provide peace of mind for farming and ranching families”

What Information Should Be in a Will?

 

While it’s clearly more fun to plan for a baby shower than to contemplate your own mortality, making arrangements for the eventualities of life as we age—including incapacity and, yes, our own passing—does bring peace of mind. It’s necessary for everyone 18 and older, says a recent article from BestLife,

“The 10 Most Important Things to Include in Your Will, Experts Say.”
The reason is simple: if you are incapacitated and cannot speak for yourself regarding healthcare decisions or your financial life, you need someone to do so for you. This is as much a part of your estate plan as asset distribution.

Planning for incapacity includes having a Power of Attorney (POA) and possibly a lifetime or revocable trust. The POA assigns someone else to manage everyday financial matters. The Healthcare POA is used to designate someone else to make medical decisions on your behalf if you can’t do so. You’ll need to discuss these roles with the person or people being named to ensure that they are comfortable with the responsibilities. Be sure that your Healthcare POA knows your wishes regarding medical directives and will carry them out, even if they feel differently about your wishes.

Your Last Will and Testament is part of a group of documents, including the POAs mentioned above. A will is used to name an executor who administers your estate. The executor has a large task, including gathering information for all assets, filing final taxes and estate taxes, paying off debts, notifying family members and distributing assets. Your executor should be someone you trust and who has the financial acumen to take on all these tasks, as well as managing heirs who don’t always appreciate the executor’s responsibilities.

You’ll need backups for all the people in all roles. Let’s say you chose a respected friend of many years to be your executor. If they become ill or die themselves, who will oversee your estate? You need a second, or even a third, backup executor to be named in your will. The same goes for trusts. A successor trustee is necessary to be sure that your trust and its assets are in good hands.

Minor children or dependents are protected through a will that is used to name a guardian (and a backup guardian) for minor children. If no one is named, the court will decide who will raise your child(ren). Similar issues need to be addressed, such as when you would want your children to receive an inheritance—all at once or when they reach legal age. Could it be specific percentages based on age? Picking the right person and creating a plan will ensure that the children have a good life, even in your absence.

Keeping wills up to date is critical to ensuring that your wishes are followed at every stage of life. Everyone involved should know where the original copy of the will is located. Some estate planning attorneys will safeguard your will, while others recommend keeping it at home in a fire and water-proof safe. Whichever route you take, tell your executor and family members where it can be found.

Discuss the use of trusts with your estate planning attorney. Using trusts can minimize the amount of your estate needing to go through probate, which can be time-consuming and costly.

Don’t neglect your furry or feathered friends. If your lifestyle includes companion animals who are dear to you, consider who would take care of them if you became incapacitated or died. You can use a pet trust to provide assets for their care and name a caretaker, so they don’t end up in a shelter.

Avoid family battles by including your wishes for personal possessions with special meaning in your will. Family heirlooms, artwork and jewelry are among the items families fight over. Spare your family this stress by naming them in your will or gifting them while you are still living.

Digital assets have become a part of our modern lives. Suppose you leave a list of accounts, usernames, passwords and specific directions for your wishes. In that case, your executor will need to be able to manage your digital assets, including financial accounts, photos, subscriptions, airline miles, email and social media accounts.

If you wish to leave assets to a charity, you can do so in your will or make gifts before you die. Speak with your estate planning attorney about how to bequeath assets to a charity, which should be done in alignment with your overall estate plan.

Reference: BestLife (May 3, 2024) “The 10 Most Important Things to Include in Your Will, Experts Say”

Estate Planning for Millennials and Gen Zers

 

Estate planning is increasingly on the mind of younger adults, far from the stereotype of being only of interest to older, affluent couples nearing retirement or dealing with health concerns. These younger generations have unique attributes, including pragmatic financial views and humanitarian concerns, according to a recent article, “Six Estate Planning Tips for Younger Generations,” from Kiplinger. Here are tips to make this process easier for any generation.

Start with a basic will, which guides how assets and possessions are distributed after one’s passing. Prepared by an experienced estate planning attorney, the will should minimize potential disputes, include a clear delineation of assets and beneficiaries and name an executor to manage the estate and guardianship for any surviving dependents.

Appoint a power of attorney and draft medical directives. Power of Attorney and Medical Directives are basic documents that state your preferences during incapacity. A POA grants a named individual the legal authority to act on your behalf for legal and financial matters, if you cannot do so. Medical directives establish your wishes regarding medical treatment and end-of-life care. While taking care of these matters, you may also want to consider becoming an organ donor.

Determine who you want to be your children’s guardian. Naming a guardian of your minor children isn’t pleasant. However, it ensures that you and your partner make this decision, not the court.

Consider a living trust. Living trusts offer a strategic means of managing assets and helping to ensure that your surviving loved ones maintain control of your assets after you have passed. The trust, established with the help of an estate planning attorney, grants ownership of certain assets or properties into the trust, which becomes their owner. A trustee is named to manage and distribute these assets in accordance with your wishes. In some instances, it makes sense to hire a professional trustee, especially if the trust will need to be managed for decades.

By taking assets out of your estate and placing them into a trust, these assets won’t go through the probate process. Probate involves your executor filing your will with a court after you die. The court reviews the will to validate it and grants the named executor the power to execute your final instructions. Probate can be lengthy, expensive and emotionally charged for the family. Your will is entered into the public record, so anyone who wants to can see your will and know your final wishes.

Don’t forget your digital assets. Younger generations are more aware of the value and footprint of their digital assets. They often name a specific digital executor in their estate plans to ensure that their many accounts and digital assets are managed after their passing.

Seek professional advice and update documents. Despite a plethora of online sites and apps, estate planning documents require the skillful handling of an experienced estate planning attorney. Estate laws are state-specific, so wills and trust documents must be created with local laws in mind. Your estate plan documents, from wills to insurance policies, should be reviewed every three to five years. Every time there’s a significant change in your life, like getting married, buying a home, having a child, or getting divorced, this should also be done.

Reference: Kiplinger (Dec. 3, 2023) “Six Estate Planning Tips for Younger Generations”

What is HIPAA Authorization?

The HIPAA Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights concerning that information. 45 CFR §164.508 states the uses and disclosures of PHI that require authorization from a patient/plan member before information can be shared or used.

It’s important to know that some organizations are considered “partial” or “hybrid” entities. These are usually organizations whose primary function isn’t healthcare or health insurance but who have access to health information that should be protected. An educational institution that provides health services to the public is an example of a partial or hybrid entity.

HIPAA Journal’s recent article entitled “What is HIPAA Authorization?” explains that in some situations, informal consent rather than formal authorization is enough to satisfy the requirement of the HIPAA Privacy Rule. These circumstances are called “Uses and Disclosures with an Opportunity to Agree or Object” and include inclusion in facility directories and notifications to friends and family (of admission into the hospital).

If an individual cannot give their authorization, covered entities must wait until the patient or their legal representative can give their authorization. When only informal consent is required, covered entities can use their professional judgment to determine whether the use or disclosure of PHI is in the patient´s best interests.

Note that the requirements for HIPAA authorizations aren’t the same throughout the country. The HIPAA Privacy Rule is a “federal floor” for permissible uses and disclosures. However, some state laws may pre-empt HIPAA, if they have more stringent regulations.

The clause “covered entities cannot condition treatment, payment, enrollment, or eligibility for benefits” means that a covered entity can’t withhold treatment, payment, enrollment, or eligibility for benefits because a patient or plan member refuses to sign an authorization giving the covered entity additional uses for their PHI, which stands for Protected Health Information (PHI). A patient or plan member shouldn’t be put under any duress to approve the uses and disclosures of PHI, in addition to those permitted by the Privacy Rule.

The law stipulates that there has to be written authorization for every use or disclosure of PHI not required or permitted by the Privacy Rule. The retraction of HIPAA authorization also has to be written. However, HIPAA consent can be verbal, but only when consent – rather than authorization – is an option.

Reference: HIPAA Journal (October 9, 2021) “What is HIPAA Authorization?”

What are Biggest Blunders with Health Care Proxies?

A health care proxy, also called a medical power of attorney, is a legal document in which you name a person to make medical decisions, in the event that you are unable to do so for yourself.

Forbes’ recent article entitled, “Health Care Proxies - 5 Biggest Mistakes,” lists the five biggest mistakes people make on this vital document.

No 1: Failing to have one. A study found that two-thirds of us don’t have a health care proxy. If you don’t have one, your doctor may be forced to make decisions in a vacuum. As a result, your wishes may not be respected. Even worse, a court might have to step in to make decisions requiring a guardian’s appointment.

No. 2: Not speaking to those you appoint as your health care agent. This conversation doesn’t have to be complicated or lengthy. However, it’s essential to give your agent some understanding of your feelings and wishes.

No. 3: Not addressing religion If you’ve changed faith , married someone of a different faith, or have children with differing religious views, addressing this in your health care documents and your discussions with your agent is critical. Don’t skip religious considerations because you aren’t religious—that’s also an essential part of this.

No. 4: Not having copies of the health care proxy available. You can put together an envelope and write your name, address, phone number and those of your agents on it. Place a copy of your health insurance info, drug cards and health care proxy in the envelope. If you created and signed a living will and/or a POLST (Physical Order for Life-Sustaining Treatment) that you signed with your doctor, add copies of those to the envelope and a HIPAA release.

No. 5: Failing to address financial matters. Your health care agent most likely won’t have legal rights to pay medical bills, caregiver costs, or other outstanding bills. You should sign a durable power of attorney, a financial document designating a person (called an agent) to handle financial matters for you. Provide your agent with the necessary information, like bank account information.

Reference: Forbes (March 21, 2023) “Health Care Proxies - 5 Biggest Mistakes”

 

When Your Pacemaker Outlives You

Do you or a loved one live with a pacemaker or implanted defibrillator? How do you plan for end-of-life matters when one of these miraculous medical devices can keep you going and going and going long after your other essential bodily functions are otherwise shutting down? This scenario is all too common and is presenting challenges in geriatric medicine and palliative care. Recently, The New Old Age Blog took a look at this perplexing issue in an article titled “A Decision Deferred: Turning Off the Pacemaker.” Compounding the problem is the fact that standard medical directives are designed with feeding tubes and breathing support in mind. Rarely do such legal instruments address the question of a pacemaker, implanted defibrillator or other surgically implanted electronic heart monitor. These devices may extend life, and maybe not for the better, but without the directive who is empowered to direct when or even whether they should be turned off? Simply put: no one. So how many patients with these devices have built their wishes (whether on or off) into their plans and medical directives? In one survey of 150 elderly and dying Mayo clinic patients, more than half had a medical directive (and only that -- a bad statistic in itself). However, only one medical directive addressed the issue of the patient’s defibrillator.

Reference: The New York Times – The New Old Age Blog (January 29, 2014) “A Decision Deferred: Turning Off the Pacemaker”

For more infosrmation, see www.jerryreiflawyer.com

Interpreting The Uninterpretable Saginaw, MI

Advanced medical directives are a tough subject. Why? Because they mean making some tough choices. For elderly loved ones in nursing homes, however, there is a very powerful tool found in a little known directive known as the “do not hospitalize” directive. Unfortunately, it also happens to be underused and misunderstood, as pointed out in recent article in The New Old Age Blog titled simply “A Misunderstood Directive.” Advanced directives, as you may well know, are your medical choices reduced to black and white. They are intended to speak for you when you cannot. “Do not hospitalize” does not mean you do not want to receive care. In fact, you can even spell out the circumstances when you really want to go the hospital! Going to the hospital, however, is not always the best (or only) alternative across a spectrum of treatment scenarios. Hospitalization itself can be an intensely disorienting process, especially for patients with advanced dementia. Little surprise, then, that more than half of all elderly patients with dementia who are transferred from the nursing home to a hospital and back will pass away within the following 18 months. Accordingly, hospitalization can be an unfortunate step in the care continuum. In fact, hospitalization is oftentimes unnecessary. For example, most nursing home patients are sent to the hospital for respiratory infections, which is both avoidable and treatable in a nursing home setting without much trouble. On the other hand, the “do not hospitalize” directive can still provide that a broken bone or the replacement of a medical device can still trigger a hospital visit if you so stipulate. While advanced directives do some important work, according to some the “do not hospitalize” directive can help assure more peaceful late-in-life care.

Reference: The New York Times – The New Old Age Blog (November 20, 2013) “A Misunderstood Directive”

For more information, see www.jerryreiflawyer.com

Estate Planning For Your (Adult) Children Saginaw, MI

How soon is too soon? That is a common question parents must ask and answer when rearing their children to adulthood. So, when should your children have their own estate plan? MarketWatch recently addressed this issue in an article titled “Why your kids need their own estate plan.” Few 18-year-olds have their own investments, retirement and insurance, let alone the complication of spouse and children. For many, however, it is just a matter of time. Why, then, should an 18-year-old newly-minted adult need a plan for their estate? Once this birthday milestone is crossed, these “children” turned “legal adults” have new legal rights and responsibilities. In fact, the basics of estate planning are as important for them as for their parents. Consider a very common example of why young adults need a basic estate plan: healthcare. At age 17, if they have an accident, then you (their parents and legal guardians) can step in to make their medical decisions, pay their bills, and even demand grade cards from their school. At age 18, however, all of that changes. Should your adult child be incapacitated in a serious accident, then you are no more than a perfect stranger when it comes to your “legal” ability to take care of them and their business. You have hit a legal wall of expensive red tape. Fortunately, this wall is avoidable by proper planning. Bottom line: whether you are a newly-minted young adult, middle-aged, or elderly, proper estate planning is a matter of personal responsibility. Basic estate planning include a health care proxy and a financial durable power of attorney. 

Reference: MarketWatch (August 6, 2013) “Why your kids need their own estate plan”

 For more information, see www.jerryreiflawyer.com

 

 

Watch Your Language – End-Of-Life Health Care Great Lakes Bay Region, MI

Words are important. Use them carefully, especially when preparing your estate planning documents. When it comes to your health care directives, the words you choose can be a matter of life and death. A recent post over at The New Old Age Blog in “DNR by Another Name” illustrates the importance of words and their legal import. It is worth reading the original article (and perhaps even the study it discusses). Consider this: how a doctor presents a medical choice can lead a caregiver or patient in one direction or the other. For example, as taken from the title of the article, DNR, or “Do Not Resuscitate” is a medical term of art. However, it often means the same as “please allow for a natural death” depending upon the medical situation, the decisions of the patient, and even (or often exclusively) the very word choices and/or mood of the doctor themselves. As one planning your own late-in-life decisions, language is a topic worthy of your careful consideration. Additionally, if you are caring for an elderly loved one, then be sure both of you understand your loved one’s advance health care wishes and take steps to clearly articulate them in proper medical directives. Do not assume anything when it comes to the ultimate health care decisions. Make sure the patient, their appointed health care agent and the physician are all speaking the same language. Communication and documentation are essential.

Reference: The New Old Age Blog – The New York Times (May 22, 2013) “DNR by Another Name”

For more information, see www.jerryreiflawyer.com

 

Watch Your Language – End-Of-Life Health Care Saginaw, MI

Words are important. Use them carefully, especially when preparing your estate planning documents. When it comes to your health care directives, the words you choose can be a matter of life and death. A recent post over at The New Old Age Blog in “DNR by Another Name” illustrates the importance of words and their legal import. It is worth reading the original article (and perhaps even the study it discusses). Consider this: how a doctor presents a medical choice can lead a caregiver or patient in one direction or the other. For example, as taken from the title of the article, DNR, or “Do Not Resuscitate” is a medical term of art. However, it often means the same as “please allow for a natural death” depending upon the medical situation, the decisions of the patient, and even (or often exclusively) the very word choices and/or mood of the doctor themselves. As one planning your own late-in-life decisions, language is a topic worthy of your careful consideration. Additionally, if you are caring for an elderly loved one, then be sure both of you understand your loved one’s advance health care wishes and take steps to clearly articulate them in proper medical directives. Do not assume anything when it comes to the ultimate health care decisions. Make sure the patient, their appointed health care agent and the physician are all speaking the same language. Communication and documentation are essential.

Reference: The New Old Age Blog – The New York Times (May 22, 2013) “DNR by Another Name”

For more information, see www.jerryreiflawyer.com

 

Living Will Challenges

Making end of life decisions means generating and updating your living will (or advance health care directive). These documents often appear simple, but that doesn’t mean the underlying issues themselves aren’t complex. According to a recent article in The Wall Street Journal titled “A New Look at Living Wills,” unfortunately these issues are only growing increasingly complex. In its essence, the living will is a document in which you clarify your medical wishes. This allows your loved ones to implement them if you are incapacitated and unable to reflect upon them yourself in the future. Given modern medical science, doctors can keep a human body “alive” long after the “person” inside has lost what he or she would have regarded as a minimally acceptable quality of life. With each new advance in medical science, there seem to be more and more ethical and legal dilemmas. For example, the typical living will contemplates feeding tubes and respirators, but these can maintain a “persistent vegetative state” leading to shades of gray for the appointed health care agent and physician as they interpret your wishes. Moreover, the boundary between the patient being “there” or “not there” is only getting hazier as science progresses. In the end, even physicians don’t always seem to understand the power they may be wielding over life and death. Planning for your end-of-life scenarios is never easy, nor is it easy to faithfully interpret the wishes of a loved one. Nevertheless, as with all aspects of estate planning, communication with your agents, loved ones, physician and spiritual advisor holds the key to success as you define it.

Reference: The Wall Street Journal (June 8, 2012) “A New Look at Living Wills”

Suggested Key Words:

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

Letting Go – End of Life Realities

Have you sat down and written your “end of life” advance health care directives? It can be a difficult chore, to be sure. Carrying out your wishes, can be a difficult chore, too, especially for the palliative care doctors and hospice medical staff who will carry out your decisions. Some of these challenges were recently featured in an article titled Amongst Doctors, Fierce Reluctance to Let Go on the New Old Age Blog at the New York Times. Indeed, we live in a culture of medicine aimed at preserving life. However, when does such “medicine” actually get in the way and prolong biological life beyond what is desired by the patient? In addition to the medical culture of preserving life, the family of the patient receiving care can be a powerful force in the mix. Many times they do not want to let go, even though their loved one is ready. Add these three ingredients together – the medical culture, the patient’s wishes and the family’s fears of loss – and you have a recipe for conflict. The palliative or hospice care doctor is well attuned to the intentions of their patient and their wishes. Unfortunately, the rest of the medical community and the patient’s own family may be less attuned. In fact, they may be hostile at best and litigious at worst. I recommend reading the original article, as you will better appreciate the unfortunate tension thrust upon so many healthcare professionals in these cases. On the other hand, the lessons gleaned may encourage you to design advance health care directives with clarity and then communicate your wishes to your primary care doctor and family members now.

Reference: The New York Times -- The New Old Age Blog (March 29, 2012) “Amongst Doctors, Fierce Reluctance to Let Go”