It is a good idea to have a Medical Power of Attorney and Healthcare Directive in place for when the time comes that you are unable to make your own medical decisions.
A Medical Power of Attorney allows you to select a person of your choosing to make medical decisions on your behalf when you are not capable. You may hear this person referred to as an agent. You may even select back up agents in case the person you choose in unable or unwilling to act as your agent when the time comes. In addition to other powers, your agent can be given power to consent to, prohibit or withdraw medical treatment. It is important to choose someone that you trust to follow your instructions even if they would not make the same decisions themselves. This document goes hand in hand with a Healthcare Directive where you can make your wishes clear to the person you have chosen to make decisions for you.
In a Healthcare Directive you can make the job of your agent easier because they will know what your wishes are. It may even help reduce conflict between family members when they can see that the other family member was acting on your wishes and not on their own. If there was no reasonable expectation of recovery from a serious illness or condition would you want life-prolonging procedures to be withdrawn? If so, you can make those wishes known through your Healthcare Directive. If a doctor believes that life-prolonging procedure may lead to a significant recovery would you want your doctor to try the treatment for a period of time but withdraw it if does not improve your condition? Again, these wishes can be placed in the Healthcare Directive so that your agent will know how to proceed in such circumstances. Would you want to be given treatment for pain? Do you wish to donate your organs upon your death? These wishes can also be written into your Healthcare Directive.
Trusts: Do you need a Trust?
Often times people know someone who have a trust and so they think they need one too. Not every estate plan needs to have a trust. Every family has different circumstances, so just because your friend has a trust doesn’t necessarily mean that you need a trust.
There are some benefits of having a trust in addition to a will. Assets held in trust avoid probate. However, a trust is not the only way to avoid probate. Proper beneficiary designations on all assets can also avoid probate. Therefore, if you’re only creating a trust because you think you need one to avoid probate, you might reconsider.
However, if you want to control your money after you’re gone, a trust is the easiest way to do so. If you don’t want your child to receive a big inheritance all at once, a trust can be set up to distribute the inheritance over time, at ages that you decide. You might choose to leave a certain amount upon the child’ s graduation from college, and then give a certain percentage of the inheritance when they are 25, or 30, or whatever age you feel appropriate. If there are drug or alcohol abuse issues, a trust can help control how money is spent for a beneficiary. A trust may help protect assets from a divorce. If you have a child with special needs, a trust is a good tool to provide for your child.
If you have young children a trust can help provide for them and can avoid probate for a conservatorship. A minor can’t just be given all the assets, so by creating a trust, a trustee will be able to distribute money for the child until they are old enough to handle the money themselves.
It generally costs more to set up a trust. If your circumstances warrant having a trust the extra cost shouldn’t deter you. However, if there isn’t as much of a reason to control the assets, and you properly title all assets with beneficiaries, the cost maybe an unnecessary expense.
It is a good idea to speak with an attorney who can ask questions about your family circumstances to help you determine whether or not a trust would be needed to meet your needs and wishes. They will be able to help you understand the pros and cons of implementing different estate planning tools.
What Next? After Executing Your Estate Plan
levitraCongratulations on getting your things in order. The process of estate planning is often one many people avoid because they just don’t want to think about it. You have been responsible and met with an attorney to prepare your estate plan and have signed and finalized all your documents. You may think you’re done and not think about it again. However, there are still some things you should consider after executing your documents.
If during the process of creating your estate plan, you didn’t speak with your family about your plan, now would be a good time. If you speak to them now, there are less likely to be family disputes because everyone is aware of your intentions. It is also good for the family to know there is a plan, so they know to look for it if needed.
When you receive the original documents from your attorney, you should place them somewhere safe. A good idea is a fire-safe if you have one. Be sure that someone you know and trust knows how to get into that safe. A will must be admitted to the Probate court within one year of death. If no one knows you had an estate plan or where to access the will, it will be as if you never created a will and your assets could pass through intestate law. This could mean the people you intended to inherit may not.
You have placed your documents somewhere safe and spoken to your family. What’s next? I would strongly recommend keeping track of how your assets are titled including any beneficiaries. If you purchase a new car you will want to remember to add beneficiaries to your title using a transfer on death designation or TOD. If you purchase a new home, open new bank accounts, get new life insurance, open a new retirement account, etc., you will want to remember to add beneficiaries to those assets so they can avoid going through probate.
If you have any major life changes, divorce, death, etc., it is always a good idea to review your plan with an attorney to make your sure documents don’t need any updates based on those changes. It is always a good idea even without any of those major life changes to review your plan at least every five years.
But Chances Are So Small – Estate Planning – Burkhardt Law Firm
The number one reason I hear for why people they don’t think they need an estate plan is: “Well, my spouse is named as a co-owner on everything I own or is a beneficiary on everything I own and the chances of us dying at the same time is small.” Well, even if you are right and you and your spouse don’t pass at the same time and your beneficiary designations avoid probate, there are reasons why you still need an estate plan.
Things can fall through the cracks, and you may forget to put a beneficiary designation on a new asset, or there may be other unforeseeable assets that don’t have a beneficiary designation and will therefore go through Probate. A will is a good way in those circumstances to be able to tell the Probate court what to do with those assets. A will can waive bond and ask for independent administration which can reduce the cost and time if assets have to go through Probate.
A good estate plan does not only plan for death, it is also a plan for when you are living but incapacitated. An estate plan may include both a medical power of attorney/heath care directive and a financial power of attorney. These documents are utilized while you are still alive.
If you have retirement accounts, your spouse cannot be an owner of your account. They can be a beneficiary, but that beneficiary designation does not give them any rights to access your account or funds from the account until you have passed away. If you to need to access money from your retirement account and are not capable of making financial decisions the only way to do that is through a financial power of attorney. A financial power of attorney will allow someone of your choosing to make financial decisions and access funds when you are not capable. If you do no not have a financial power of attorney, there may be a delay and added cost if someone has to go through the court system for conservatorship in order to access the funds. This is just one of many reasons a financial power of attorney is an important document to make part of your estate plan.
The other document utilized as part of an estate plan during your life is the medical power of attorney/heath care directive. If you are not capable of making medical decisions for yourself a medical power of attorney will allow a person of your choosing to make medical decisions on your behalf. Do you have specific wishes for end of life? Would you want treatments like feeding tubes to be removed if the doctor did not believe you would have significant recovery? It is important to make your wishes known and this can be done through a medical power of attorney/heath care directive.
Even if you are not concerned about assets passing through Probate, I strongly suggest considering an estate plan so that you can have access to funds when needed through a financial power of attorney and to make your end of life wishes known through a medical power of attorney/heath care directive.
When Does a Power of Attorney Start? Springing POA vs. Non-Springing POA – Burkhardt Law Firm
People always have a lot of questions regarding powers of attorneys (POA). It makes a lot of sense. Powers of attorneys are so important because they give access to decisions when otherwise your loved ones may be stuck without access! One of the big questions we always get is the different types of powers of attorney. Specifically, durable powers of attorney and springing powers of attorney. Today we’re picking on springing powers of attorneys and why you may or may not want a power of attorney that’s springing.
To start with we’re talking about a financial POA. This is just a POA that gives someone you choose the power to make financial decisions for you. That power can be springing or non-springing. If the power is non-springing, then the person you choose has the powers you grant them immediately upon the power of attorney document being signed. This means that even if you are capable of signing for yourself the person you choose could sign for you immediately.
If the POA is springing, the person you choose to make financial decisions for you will act only if you become disabled or incapacitated. A medical doctor would need to certify in writing your mental and/or physical condition is impaired to the extent that you can no longer personally make financial decisions for yourself. Only after a doctor certifies you are no longer capable can the person you choose begin using the powers given in your financial POA.
Some people just aren’t comfortable with the idea of someone else signing for them when they are still capable and may prefer a springing POA. However, if the power is springing, and then there is a need for your chosen agent to act, there could be a delay while they try to get a doctor to certify that you are no longer capable. A non-springing power of attorney may be preferred by some people for convenience. If your traveling or just otherwise busy, your agent could sign for you if they are given the power to act immediately.
Many married people will choose their spouse to act for them and are comfortable with their spouse signing for them immediately. The thing to keep in mind if you choose a non-springing power of attorney is that if you choose a successor agent, someone to act for you if your first choice is unable or unwilling, and your spouse becomes unable or unwilling to act, then your successor agent will then have the power to act immediately as well. Therefore, if you execute a non-springing POA, you need to be comfortable with all successor agents acting immediately and not just the first named agent. However, there is some protection in the fact that that a successor agent would have to prove that the prior named agent was unable to act before they could act on your behalf. Regardless of whether you choose to execute a springing or a non-springing power of attorney, you should select an agent that you trust will act in your best interest.
Having a springing or non-springing power of attorney is a big choice and one we spend a lot of time discussing with our clients. So if you’re wondering which is best for you and your loved ones, the best idea is to contact an attorney and figure out your estate plan.
Stop Waiting – Burkhardt Law Firm
I joined Burkhardt Law about 5 months ago, and since joining the firm I have had an opportunity to shadow Martha. I have learned a lot from her in these 5 months. One of the things I have seen while shadowing her is people who wait until it is too late to create an estate plan. Did you know that for a will to be valid you have to have mental capacity when signing? In the time that I have been at Burkhardt Law I have seen Martha have to turn away potential clients because they no longer had mental capacity to execute an estate plan.
Has a loved one recently been diagnosed with an illness that may affect their mental capacity? Their illness may progress faster then you think and it could become too late to execute an estate plan. If your loved one doesn’t have capacity to execute an estate plan and does not have a power of attorney, it may become difficult to access funds they need. If a power of attorney is not in place, a loved one may only be able to access accounts by going to the court and petitioning for a conservatorship. This can take time and there is the added issue of court costs.
I have also unfortunately seen clients come in when they are sick but still have mental capacity to sign, however, they have passed away before coming back in to sign and execute their documents. That is just heart breaking. Don’t wait until it is too late. Benjamin Franklin once said, “Don’t put off until tomorrow what you can do today.” This is excellent advice especially when it comes to creating an estate plan. You never know what tomorrow will bring so be prepared today.
— Lisa Villareal
One of the Most Important Documents – A Financial Power of Attorney
A lot of people have questions regarding wills and trusts. Those documents do make up a part of a complete plan, but one of the most important documents is a financial power of attorney.
For families without minor children, my first priority is ensuring my clients are taken care of if they cannot take care of themselves. Now, the medical power of attorney is important to make sure the correct person can make health care decisions. However, often times, I find medical professionals will follow instructions even without a medical power of attorney. Now, that may not always be true, so a medical power of attorney is necessary.
However, I can guarantee a bank or financial institution will not allow someone who is not listed on an account to sign. This is a major concern for those who have the majority of their money in retirement accounts. On retirement accounts, only one person is listed as an owner for tax purposes. There may be beneficiary designations, but those don’t go into effect until death. So, without a power of attorney, if the owner cannot sign, no one can. This can present a huge problem for married couples who rely on each other’s retirement money.
The same would be true of a couple with a house in joint names. If the home would need to be sold to provide for them or just to downsize, both would need to sign. However, if one can’t, the home cannot be sold without court intervention.
A financial power of attorney is an easy solution. By completing a power of attorney, you can decide who can access financial accounts for you and what powers they have. So, tell me, who do you trust with your power of attorney?
Free Advice – Estate Planning Consultation – Burkhardt Law Firm
As soon as someone hears I’m an attorney, I get a rush of legal questions. And I actually enjoy answering questions when I can. However, so many questions don’t have an easy solution or a quick answer.
Every legal question I’m asked creates a whole list of questions that I have to ask in return. There’s rarely an easy yes or no. In fact, one of the favorite responses of an attorney is “well, it depends.” And it’s the truth. So much depends on who, what, where, when, how. And for each response, I generally have yet another question!
My other favorite thing that goes hand-in-hand with this is “my neighbor said” or” I heard.” And that’s great. Your neighbor might be exactly right. But more likely, your neighbor’s situation is just slightly different. Which is enough that causes what your neighbor said to not apply to you. Or what your neighbors said failed to mention a really important detail that completely changes everything.
So, when you have a generic legal question, and you’re asking for advice, or you heard something, it’s not that simple. I’m not going to have an answer. It’s going to take a lot more. That’s the reason I do free consultations. That’s the reason I want to sit down with people and talk. Because each person’s situation is going to be slightly different. Each person is going to have a different concern. Each person is going have a different thing that’s important to them. And that’s what I went to law school for; to ask the questions to find those things out. It’s after I ask those questions and get the answers (which most people don’t know to ask and didn’t know were important) that I will have an answer.
So, do me a favor next time you have a legal question, or your neighbor told you something: just stop and ask an attorney. Set up a time to do a consultation and to give specific answers to the questions that your question just brought up.
Another Estate Planning Attorney – Burkhardt Law Firm
I love working with all the families who have trusted me with their loved ones and avoiding probate through estate planning. I even appreciate the opportunity to help those who needed probate and let me navigate them through court.
As I look forward to helping more people and families through these legalities, I wanted to also provide a back up, more options, and flexibility. For those times I’m sick, in appointments, or just booked six weeks out, I’ve hired another attorney: Lisa Villareal. She joined our Burkhardt Law Firm family in June.
Lisa has been licensed to practice law in the state of Missouri since 2007. A St. Louis native, she attended Parkway Central High School in West St. Louis for high school. She graduated with her B.A. in Political Science from the University of Missouri-Columbia and continued her education at the University of Missouri-Kansas City School of Law. Knowing that she wanted to help individuals and families better plan for their futures she participated in the UMKC School of Law Estate Planning Clinic and was the recipient of the UMB Excellence in Estate Planning Award for her work in the Clinic. When working in a position with H & R Block she was recognized for her excellent service to clients and now brings this same excellent service to the clients of Burkhardt Law.
Lisa is still shadowing me and learning how I practice, but if you see her in the office or out networking, don’t hesitate to say hi!
5 Cybersecurity Tips to Keep Your Data Secure
In today’s world so much of our lives revolve in the digital world. Beyond just email or social media, there’s online banking and access to investment accounts. A lot of personal information is available through these online accounts. Now, I deal with confidential matters on a daily basis and I’ve hired CMIT Solutions of St. Charles/Chesterfield to make sure that my client files are well protected, but I asked them to provide me some simple, important, changes to personal digital security to share with you. Here are their five top suggestions:
- PROTECT YOUR PASSWORD.
Most of us create passwords that are easy for us to remember, but easy for others to guess. Our passwords may reference a pet, friend, family member, or “happy place”. Then, we adapt that same password to create new ones. Unfortunately, many sites fail to block or encrypt your password; the password that gets stolen from a website you may consider low-risk could hold the key hackers need to access your bank account, amazon account and more. Cybersecurity experts suggest that you use a combination 10+ characters that include uppercase and lowercase letters, numbers, and symbols. They advise you to change your passwords every three months if possible. If this feels like too much, one great tool I use is LastPass, which will manage all of your passwords for your, so you only have to remember a single password for all sites you visit on a regular basis. One final note: Many sites offer two-factor authentication (2FA), which pairs your username and password with a separate piece of data only you could have access to. This could include requiring you to confirm a pin you’ve set; a code form an SMS message or provide a fingerprint. Take advantage of this service whenever you can!
- BE AWARE OF YOUR PRESENCE ON SOCIAL MEDIA.
We use social media to connect with family and friends, but there are plenty of strangers ready to use your information for a profit. Social media sites have almost all of your personal information, ranging from your phone number and payment information, your birthday, and the answers to common security questions. A major data breach can easily lead to identity theft. I’m sure you’ve seen friends who’ve had their profile pictures and information hijacked on Facebook in order to be used by scam artists. To keep yourself safe, these social sites are constantly making changes to increase security. Take advantage of this! Use new features Facebook is offering, and be careful about what information you add to your profile, not every field on your profile is necessary or required. Be smart about friend requests, keep your profile private and only add people you know. Finally, be aware that there are scammers out there. Social engineering scams are on the rise: scammers try to gain your trust to learn personal information and then once they’ve gathered enough information, either guess a person’s password or get them to reset. Beware of links and attachments sent through social media, and be cautious if someone you know asks you a strange question on social media (they could be a scammer who’s hacked or created a fake profile).
- BACKUP YOUR DATA AND UPDATE YOUR SOFTWARE.
Imagine the headache of trying to reconstruct files and documents if someone were to steal your laptop. External hard drives are inexpensive and worth the cost. Save your data to an external hard drive and keep it in a secure place. Do not rely on thumb drives; they are handy but easy to lose! If your data is ever held hostage by ransomware, having a backup of your data will save you a lot of heartache. Another way to ensure you data is secure, is to update your devices. Companies regularly update software, making it easier to use and, more importantly, more secure.
- DON’T CLICK ON AN EMAIL OR WEBSITE IF YOU DON’T KNOW THE SOURCE.
Web browsing can lull us into a false sense of safety, and before we know it, we have clicked on a suspicious link. Not only do you put yourself at risk, but you also expose your friends, family members, and business associates to potential danger. Hackers can snoop around your profiles, likes, and activities and gather information about your contacts.
- MONITOR YOUR ACCOUNT FOR ACTIVITY
Log out of all websites and lock devices when you are finished. This means that you will have to log in each time, but it also means that you can see if an unauthorized person has tried to access your account. Delete all accounts that you no longer use.
With a little time and effort, you can begin to secure your electronic devices!
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