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reasonable expectation of recovery from a serious illness or condition would you want life-prolonging procedures to be withdrawn?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.
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?
Different Probate Options
When I work with clients, my goal is often very simple: Avoiding probate. However, I believe it’s also important to have a backup plan that includes providing for probate in the most efficient way possible. In order to do this, having an understanding of the different probate cases is important.
For adults unable to make their own decisions or for minors, the court may appoint someone to be in charge of their money through a conservatorship. The court may also appoint someone to be in charge of their physical well-being through a guardianship. These proceedings are only avoidable if an adult had the mental capacity and executed a power of attorney in advance. For minors or adults with special needs, a conservatorship or guardianship will be required. For these situations, a will is the only place to legally designate a future guardian and conservator.
On the other side of probate is when a person passes with assets left in their name alone and without beneficiaries. In these situations, there are a few different proceedings in Missouri.
After a year has passed since a person’s death, the heirs may also file a determination of heirship. Another simplified proceeding, this simply produces a court order effectively giving title to the legal heirs. Because fewer documents are required than other proceedings, this can give access quicker and generally less expensively. Unfortunately, the major downside to this probate process is the assets are given to the legal heirs under intestate law which may not have been the intention. In addition, the court requires a list of all assets going through the determination of heirship and would not give access to unknown assets.
Another option is the small estate affidavit. For estates under $40,000.00, this includes subtracting debt, the court may issue a certificate based on this affidavit. This allows the person signing the small estate to collect the listed assets. While this is a simplified option giving access to assets often within a few months, you must know and have statements for the assets. Because there are normally fewer documents require, it again is often also much less expensive than other probate proceedings. In addition, some counties will allow an individual to file these affidavits without an attorney. Unfortunately, St. Louis County does require an attorney.
Finally, the last option is a full probate proceeding. If a company says you need “Letters” this is what they are referring to. The proceeding begins by issuing the Personal Representative (or Executor) Letters of Administration or Letters of Testamentary. These Letters allow the Personal Representative to call companies to gather information and assets for the heirs or devisees of a will. Generally, these proceedings will take a minimum of 7 months and can take years. It also gives an open court case for creditors. It is most likely to be the most expensive, but if the assets exceed $40,000, it has been less than a year since the death, or there are unknown assets, this is the only option.
So, how does this effect an estate plan? For small estate affidavits and a full probate proceedings wills can be admitted. However, a will can actually (nominally) increase the court fees. But a will can also waive bond (another expense) which may not always be done otherwise. If a specific person should be appointed Personal Representative or intestate law is not the desired outcome, a will is always going to be necessary. But knowing the different methods of probate and potential fees should also help decide a backup to the main estate plan.
Save Heartache & Money
This week I gave a presentation to a group of professionals I work with on a regular basis. After the meeting, several came up to me concerned that their plans wouldn’t accomplish what they thought it would. So, in the hopes of saving your family heartache and money, I thought I would the main point of that presentation.
When clients hire me to do an estate plan, my job is to avoid probate in the most cost efficient manner with as little conflict as possible. There’s two situations where probate is possible. First, is when a person is no longer able to make decisions for themselves.
If incapacitated and a person does not have any documents in place, the probate court gets involved in a guardianship or conservatorship. In these cases, the court appoints someone to make financial and medical decisions for you. That person must get court approval for any purchases and must make annual reports. Generally, in a time when they must already take care of a loved one, the court is the last thing they need to be dealing with.
This is very easy to avoid through a power of attorney or a trust. Either document may control if you’re incapacitated, but there are two main differences. First, a power of attorney will only control what is in your individual name, while a trust will only control what is in the trusts name. Also, a power of attorney ends upon death, while a trust may also control what happens after you pass.
The other side of planning is what most people think of: when someone passes. Without a will, assets go through intestate law and must go through probate. Even with a will, assets go through probate.
As such, I normally recommend non-probate transfers to be used to avoid probate upon death. This is a fancy term for joint titling, beneficiaries, or a trust. There are different benefits to each one, but generally a trust is the “best” option, while beneficiaries are “better”, and a will is “good.”
A trust is the “best” option because it allows for control over the assets while avoiding probate. Trusts are also very adaptable, permitting one to only change the trust document instead of beneficiary designations when life changes (i.e. changing beneficiaries, beneficiary percentages, and any restrictions on assets). It also can set up different layers of contingencies for beneficiaries and often provides the least amount of conflict between family members. It’s great for complicated families or when minors are involved. I also recommend it when real estate is involved, because in Missouri, if a person or people own real estate their spouses must also sign off on any transaction involving real estate. So, for families with multiple children, it’s a good way to limit the amount of people involved in any decision regarding that property.
Beneficiaries are the “better” choice because they avoid probate. But I generally only recommend them, with liquid assets, limited family members, and responsible beneficiaries.
A will is the “good” option because it goes through probate. This is necessary for families who do not want intestate law to apply and for minor guardianship. But because it goes through probate, there will be court and attorney fees and I rarely recommend it by itself.
So, in the holiday spirit save heartache and money for your family by checking the beneficiaries on your assets with this checklist!
What Controls?
One of the most misunderstood topics of estate planning is what documents control a situation. I often have people calling asking for a power of attorney, when they truly need to update how an asset is titled, or someone calls asking for a will when they really need to update a trust. So, hopefully this month I can clarify what documents actually control a situation. It all really depends on who legally owns the asset.
Titling always controls first. If there are two people on the asset, then they have access to that asset. Both signatures might be required, but often times (unless dealing with real estate or vehicles) one person may act without the other.
Often times, I have someone ask me about a power of attorney, but they actually mean another person is on their bank account or asset with them. In that situation, the solution involves changing how the bank account is titled, not changing the power of attorney.
A power of attorney is when someone has an asset in their name, but a second person uses the document to access the first person’s asset. The power of attorney may only be used when the person is still alive. The most common time a power of attorney is used is when an individual is no longer able to make decisions and another needs access to his/her retirement accounts to provide for him/her.
However, if the asset is titled in the name of the trust (not in the name of the original owner), the trust controls. If the original creator of the trust is not able to make decisions any longer the successor trustee takes over. The successor trustee will have access to make decisions on the asset. A power of attorney cannot apply in this situation because the person is not the owner the trust is.
When we start talking about when people pass, there are generally a few different ways for the property to be controlled. First, again is who is titled on the asset. If there is more than one name on the asset, the remaining name may be entitled to the asset alone. It depends on exactly how the asset is titled. Generally, if the asset is owned by (and titled to) a married couple, the asset will automatically pass to the other. If the owners are not married, it must state the asset is owned by joint tenants with right of survivorship for the asset to pass automatically to the other.
The title might again be in the name of the trust, and again, if that is the case, the trust document controls. The successor trustee would take control of the assets and distribute or hold them as the trust document dictates.
If the asset does not have another person on the title as a current owner or is not in a trust, a beneficiary designation will control. This might be a beneficiary deed on the house, a “TOD” or Transfer on Death on a vehicle, or a “POD” on a bank account, but if there is any form of a beneficiary listed, that beneficiary gets the asset.
It is only when there is no trust, other person, or beneficiary listed on the title that the asset would go through probate. At that point, if there is a will the will would control, and if there is no will intestate law would apply.
While it can be confusing, the first step is always looking at the title. A trustee will always control if it’s owned by a trust, a joint owner may be control, and only after that a power of attorney, beneficiary, or will.
Who Has the Power: Attorneys-in-Fact, Personal Representatives, Guardians, and Trustees
Estate planning can be complicated. In addition to different ways to structure a plan, multiple people can be involved. Most of the time, the people making decisions within the different documents are the same person. However, they don’t have to be. As such, it’s important to understand what the different positions and documents require.
Attorneys-in-Fact – This person can also be called an Agent, but it’s the person acting through a Power of Attorney. Their power either begins immediately or when a person is no longer able to make decisions for themselves. However, this power ends with the person creating the document (also known as the principal) dies. The attorney-in-fact can have many different responsibilities, but I generally divide it into two categories. The first being responsibility over the principal’s assets which remain in the principal’s name and legal decisions. The best example of this is generally making decisions over insurance policies or retirement accounts. They must use these assets for the principal’s benefits. The second category is medical decisions. The attorney-in-fact has the power of what treatments the principal should receive, may sign off on medical waivers, and will make the final decision on end of life treatment.
Personal Representative – Previously called an executor or executrix, this is the person acting under an individual’s will. When acting as a personal representative (or PR), that person will have to locate the will and deliver it to the probate court. They will then be responsible to the court to determine what assets must pass through probate with an inventory and accounting of those assets. The PR will have to determine what to do with assets, pay any creditor claims, and is responsible for all filings submitted to the court. At the end of the probate matter, the PR will also be the one who divides the estate to any beneficiaries.
Guardians – For many families, this is the most important role. This is specified in the will and is vital for determining who is responsible for minor or incompetent children. The court has the final decision on who a guardian will be, but a parent’s will and wishes are often respected.
Trustees – A trustee is the person responsible for enforcing the terms of the trust. Essentially this means that when the principal is no longer able to make decisions (or chooses not to), the trustee will take control of any assets held in the trust’s name. At that point they will use the assets for the person who created the trust. When the principal passes, the trustee will be responsible for either distributing the remaining assets to the beneficiaries or managing the assets for the beneficiaries. This position can last for multiple years and generations.
All of these roles require a person to act in the best interests of the principal or the beneficiaries, but there can be very little oversight. A lot of responsibility and power comes with attorneys-in-fact, personal representatives, guardians, and trustees and there is definitely the ability to abuse the power. As such, it’s extremely important to choose the right person for each role and most importantly choose someone who can be trusted.
Still You: What Happens if Your Incapacitated
For those who don’t know me, I read. A lot. I’m in two book clubs and average probably a book a week. Last year I read a wonderful book called “Still Alice” by Lisa Genova. It’s a book written from the point of view of a woman with early onset Alzheimer’s disease. It was well written and an interesting story, but it also focuses on something that is all too common, the inability of a loved one to make decisions for themselves. The book doesn’t touch on the legal complications that can arise with incapacitation, but I, of course, will.
When a person no longer is able to remember where they live, generally, they are not in a position where they can remember their medications, decide if they should be living in their house, or determine if they should take money out of their IRA. This means someone else must make these decisions for them and hopefully make the decisions that person would have made for themselves. But who makes those choices for them if they’re not capable?
In the best case scenario, they’ve already made arrangements for someone to take over in a power of attorney or have set up a trust. In which case a person they’re decided upon simply begins to act for them with the legal document. However, many people don’t have these documents.
Without them, a person must go to probate court and file for a guardianship or conservatorship over the incapacitated or disabled person. Guardianship is the process where a person is given control over the care and custody of another, whereas conservatorship is the process where a person is given control over another’s finances. In both types of cases, the information needed for filing is extensive, including a full report of the person’s assets/income and an assessment by a doctor.
After filing, an attorney (the guardian ad litem) must be appointed for the disabled/incapacitated person. This attorney is completely separate from any attorney hired by the family or loved ones to file the legal documents. What this means is often two attorneys are involved, which of course means two sets of legal fees.
Next, a hearing is schedule where the court will hear evidence on why the incapacitated/disabled person needs a guardian/conservator. Generally, this occurs a week or two after the petition has been filed. The judge overseeing the hearing will eventually make the decision on what powers the guardian/conservator will be granted and will only grant that person the powers necessary for the incapacitated/disabled person’s wellbeing. These powers are issued through the letters of guardianship/conservatorship.
However, that does not end the probate court’s supervision. After a conservator is appointed, that person must then inventory the disabled person’s assets. If property must be sold or leased, the conservator must also petition the court before taking action. The conservator/guardian must also file an annual report with the probate court detailing the actions of the guardian/conservator over the year. For a conservator this includes a detailed accounting of the incapacitated person’s assets.
Without the proper estate planning, an already difficult situation of an incapacitated loved one, becomes a lot more complicated and expensive, including legal proceedings, multiple attorneys, and continuing court supervision. Essentially, while the disabled/incapacitated person is alive (and perhaps well after depending on their other estate planning) the probate court will be involved. Hopefully, we never find ourselves or a loved one disabled or incapacitated, but planning for it will make it that much easier if it does happen.