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FOUNDATIONAL LEGAL DOCUMENTSRYAN A. WEBBER, ESQUIRE
WHAT ARE THE FOUNDATIONAL LEGAL DOCUMENTS?
Financial POA
Health Care POA
Living Will
Last Will and Testament
WHO NEEDS AN ESTATE PLAN?
• EVERYONE!• Especially Important for Individuals with Small
Children, Businesses, Disabled Beneficiaries, Desire for Charitable Giving
Estate Planning Team
Attorney Accountant Financial Advisor
ESTATE PLANNING INTRODUCTION
• Purpose of Planning – While living• Provide for management of assets in
the event of disability• Provide instructions for health care
decisions• Protect assets for long term care
• Purpose of Planning – At Death• Determine who gets what assets and how
such distributions are made after you pass away
• Maximize Estate by reducing expenses and avoid delays
• Reduce conflict between family members and provide for a smooth transition of assets
• Minimize death taxes
• Provide liquidity – cover funeral costs
FINANCIAL POAWHO HANDLES YOUR STUFF WHEN YOU CANNOT HANDLE IT YOURSELF
FINANCIAL POWER OF ATTORNEY
• Principal – Person creating the power ofattorney
• Agent – Person appointed by the Principal toact on the Principal’s behalf with regard tofinances and legal affairs
• Durable – Power of Attorney is effective uponexecution; no need for incapacity (POAspresumed durable if not specified)
• Springing – Power of Attorney is effective(springs into action) upon a specific event(usually incapacity)
• Gifting – Giving the Principal's assets orproperty to another without the Principalreceiving anything in return
Key Terms
FINANCIAL POA: CONSIDERATIONS WHEN CHOOSING AN AGENT
• Do you trust the person?
• Is there a conflict of interest?
• Is the person financially responsible?
• What is their fee? If any
• Will the person agree to serve as agent?
• What is the person’s age?
• Should I name more than one person?
• What if they can’t agree?
• What if I have no one?
• Institutional agent
• What if the person lives far away?
FINANCIAL POA:EXECUTION• Signed by the Principal, by mark, or by another at the direction of the Principal
• Must be in writing
• Dated
• 2 witnesses
• Notarized
• Must have proper Notice
• Must be acknowledged by Agent
FINANCIAL POA: POWERS THAT REQUIRE SPECIFIC AUTHORITY
Create, amend,
revoke, or terminate an inter
vivos trust
Make a gift Create or change
rights of survivorship
Create or change
beneficiary designations
Delegate authority granted
under the POA
Waive the Principal’s
right to be a beneficiary of a joint
and survivor annuity
Exercise fiduciary powers of
the Principal
Disclaim property
NOTE: Consider the
long-term care implications of
disclaiming
FINANCIAL POA: DUTIES OF AGENT
NONWAIVABLE
• Act in Accordance with Principal’s reasonable expectation to the extent known, and otherwise, in the Principal’s best interests
• Act in good faith
• Act only within scope of authority
WAIVABLE
• Act loyally for Principal’s benefit
• Keep funds separate from Principal’s unless: 1) funds weren’t separate; or 2) agent is spouse;
• Act so not to create a conflict of interest within Principal
• Act with care, competence and diligence
• Keep records of all receipts, disbursements and transactions
• Cooperate with Health Care Agent
• Preserve the Principal’s estate plan
FINANCIAL POA
ADVANTAGES
• Someone can handle finances when you are unable
• Control what powers your agent has
• Relatively easy and inexpensive to create
• No need for costly court proceeding or continued oversight
DISADVANTAGES
• Ends at death (not a substitute for a Will)
• No oversight (power can be abused)
• Lack of recognition by financial institutions
• If multiple agents named, they can disagree
ADVANCE DIRECTIVEHEALTH CARE POWER OF ATTORNEY / LIVING WILL
ADVANCE DIRECTIVE
A written statement of your wishes, preferences, and choices regarding end-of-life health care decisions
Non durableOnly effective if you are unable to speak for yourself
Advance Directives typically include:
Health Care Power of AttorneyLiving Will
Consider Terry Schiavo case
HEALTH CARE POA - EXECUTION
• Principal must be:
• 18 or older
• Graduate from high school;
• Married; or
• Emancipated minor
• Health Care POA shall:
• Identify the Principal and appoint an Agent
• Declare the Principal authorizes the agent to make health care decisions on behalf of the Principal
• Execution Requirements:
• Dated
• Signed by Principal, mark, or by another individual at the direction of the Principal
• Witnessed by 2 individuals
• 18 or older
• Cannot be a health care provider
HEALTH CARE POA
• Agent is only authorized to speak for you if you are unable to speak for yourself
• As long as the Principal is competent, the Principal will make their own decisions
• Agent may have access to medical records and HIPAA Authorization prior to your incapacity
When Effective
HEALTH CARE POA: AGENT’S POWERS
• Appoint an Agent to speak on Principal’s behalf
• Will speak only if Principal becomes incapacitated due to injury or illness
• Can make treatment decisions, decisions related to medical facilities, organ donation, autopsy, and what to do with your remains
• Has access to medical records right away
• HIPAA Authority
HEALTH CARE POA: OPTIONAL PROVISIONS
Describe any limitations imposed on
the authority of the Health Care Agent;
Indicate preference for initiation, continuation,
withholding or withdrawal of life
sustaining treatment
Right to consent or refuse to consent to medical treatment or
organ donation
Right to employ or discharge medical
providers
Right to direct disposition of remains
LIVING WILL: PURPOSE
State Principal’s wishes regarding the use or removal of life-prolonging procedures if Principal lacks the capacity
to make or communicate health care decisions
Tool to help you think through and communicate
your choices
Allows you to request to pass away naturally utilizing only
comfort measures
LIVING WILL: EXECUTION
• Dated
• Signed by Principal or signed by another at Principal’s direction
• Witnessed by two individuals
• Must be 18 or older
• May not be a provider
LIVING WILL: WHO MAY MAKE
• Any individual of sound mind may make a Living Will who meets following conditions:
• 18 years of age;
• Graduate of high school;
• Married; or
• Emancipated minor
LIVING WILL: WHEN EFFECTIVE
Advanced dementia may trigger a Living WillWho makes the determination?
When the Principal is: 1) permanently
unconscious; or 2) terminally ill
Life sustaining treatment will be given during a pregnancy unless:• Will not maintain the pregnant woman in such a way to permit continuing development and live birth of unborn child• Will be physically harmful to pregnant woman; or• Will cause pain to the pregnant woman that cannot be alleviated by medication
Limitation: Pregnancy
Spouse of Principal cannot make end of life decisions if divorce action filedDivorce
LIVING WILL: END OF LIFE DECISION MAKING
Life Sustaining Treatment
Artificial Nutrition and Hydration (tube feeding)
Cardiopulmonary Resuscitation (CPR)
Do-Not-Resuscitate Order (DNR)
Palliative Care
Hospice Organ Donation
Including donation of vascularized composite allografts (limbs)
Consider life support decision and whether it is consistent with organ donation goals
ADVANCE DIRECTIVE
ADVANTAGES
• You are in charge of your own decisions
• Documents can be changed anytime if you have capacity
• Documents can help you express wishes
DISADVANTAGES
• May not be available when needed
• Not readily available in patient’s charts
• Living Will: may not be specific enough, may be overridden, does not immediately translate into medical order
• Consider POLST
LAST WILL AND TESTAMENTWHO GETS YOUR STUFF WHEN YOU PASS AWAY
LAST WILL AND TESTAMENT
KEY TERMS
• Decedent – person who has passed away
• Testator/Testatrix – individual creating Will
• Executor/Executrix/Personal Representative –person/entity in charge of your probate Estate
• Beneficiaries – person(s) receiving your Estate
• Probate Property – property in the name of the Decedent’s name alone without a beneficiary designation
The Instrument that Directs How Your Assets are Distributed and Your Debts, Taxes, and Expenses
are Paid After Your Death
LAST WILL AND TESTAMENT
WHO MAY MAKE• Any person 18 or over who is of sound mind
• Capacity – understand the nature of the document, the property he owns, the persons that have a natural claim to estate, and manner assets should be divided
• Must be free from undue influence• Influence from someone with a special relationship
to testator that prevents the testator from exercising independent judgment
FORM AND EXECUTION• Must be in writing
• Signed at the end by the Testator
• May be signed by mark or another person at the direction of Testator
• No Witness Requirement• Good practice to have witnesses
• No Notary Requirement• Good practice to have notarized
ASSETS NOT SUBJECT TO YOUR WILL
Joint property with right of survivorship
Tenants by the Entirety Property
Assets with a beneficiary designation
Perils of naming your “estate” as beneficiary of an asset
Important to keep beneficiary designations up to date with estate
plan
Be consistently inconsistent - If non-probate assets have different
beneficiary designations than your Will, make sure this is intentional
Assets owned by a Trust
LAST WILL AND TESTAMENT: THINGS TO CONSIDER
Any beneficiaries with special circumstances
Divorce
Special Needs
Bankruptcy
Long Term Care Issues
Spending Issues
Who is your Personal Representative?
Same considerations as financial POA
Do I need a Guardian for Minor Children?
LAST WILL AND TESTAMENT: DISTRIBUTION OF ASSETS
Taxes and debts paid before beneficiaries
Pennsylvania Inheritance Taxes
Concept of Fairness
Fair doesn’t always mean equal
Equal doesn’t always mean fair
Specific Distributions
Must get paid before residuary estate
Acknowledge Consistency or Inconsistency with non-probate property
Must I include a beneficiary?
In Terroram Clause
IMPROPER ESTATE PLANNING
• Court Determines Beneficiaries
• Intestacy Laws Govern (Spouse does not always get entire estate)
• Unintended Distributions
• Family Conflict
• Court Determines Executor
• Court Determines Child Placement and Care
• Delay in Distributions
• Allocation of Assets to Minimize Taxes not Guaranteed
• Cost of Guardianship
• Prolong Life Past Desire of Individual
• Medical Care Costs Deplete Assets
• Lack of Charitable Giving
OTHER DOCUMENTS IN AN ESTATE PLAN
LIFE INSURANCE INTER-VIVOS TRUST
SPECIAL NEEDS TRUST
LONG TERM CARE
INSURANCE
DISABILITY INSURANCE
ANNUITIES
(717) 697-4700