Happy New Year 2018! Resolving to get your legal affairs in order is one of the most important things you can do to make sure your family, wishes, and assets are protected if something unexpectedly happens to you this year.
While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.
That’s because far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them. A recent Lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.
Contrary to popular belief, estate planning isn’t just for the rich. At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial nightmare if something unexpectedly happens to them.
So what are these documents and how do they help you in a time of emergency?
- Will – A will is a document that specifies what should happen to your assets if you pass away. A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.
- Trust – A trust is a legal entity that can hold title to property. With your assets securely placed in a trust, you can minimize your financial exposure to lawsuits, divorce, and bankruptcy while alive. Upon death, a trust will keep your affairs private and out of the probate court. It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpected happens.
- Power of Attorney – A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die. Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.
- Advanced Health Care Directive – Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself. Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations. This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.
Accidents and serious illness happen every day without warning. That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year. It will save your family from years of headaches and thousands of dollars in unexpected costs should the unthinkable happen.
Make this your New Year’s resolution this month: “I will get my estate plan in place or updated.” Call me, Steve Worrall, your Marietta estate planning lawyer, at 770-425-6060 or email me at steve @ georgiaestateplan.com and let’s get your family protected and give you peace of mind for 2018 and beyond.
Advance directives of healthcare, including components formerly called the Living Will, Health Care Agent Designation, and HIPAA Medical Release, are crucial elements of every estate plan in Marietta. One issue that does not come up very often when discussing health care directives, though, is mental health. Mental health falls into the realm of health care and, as such, is covered by health care directives.
Health care directives can be a great help to those suffering from mental health issues as it can allow a loved one to help make decisions about care, discuss treatments and medications with health care professionals, and fill out the documentation that’s sometimes necessary in order to receive needed health care services. Marietta GA estate planning attorneys advise that when making these types of decisions regarding who will advocate on your behalf in health care situations, especially when mental health issues are a concern, it is important to choose someone you trust to carry out your wishes.
However, it’s also worth noting that a standard health care directive may not be adequate when dealing with more extreme mental health issues, such as Alzheimer’s or schizophrenia. In these cases, it may be a good idea to consult with a Marietta estate planning lawyer regarding a “mental health care directive” that can be used for more extreme cases. Mental health care directives specifically cover items such as involuntary commitment, intensive therapy, and greater control over medications.
Of course, if a person is not cognitively capable of signing a legal document like a mental health care directive, this document will not end up doing anyone any good. In cases where a person’s mental state will not allow them to sign a legal document, a conservatorship or guardianship hearing must be held at the probate court in order to give a caregiver the authority to make mental and physical health decisions for their loved ones. This can be a long and difficult process, and it would be wise to consult with an experienced Marietta estate planning lawyer in order to determine what course of action would be best for your individual situation.
If you have questions about your health care directives, or if you’d like more information about how having health care directives can provide peace of mind when mental health issues are of a concern, please contact our Marietta estate planning law firm at 770-425-6060 or firstname.lastname@example.org to set up a Georgia Family Treasures Planning Session at no charge.
It’s Christmas time and as an East Cobb Wills Lawyer, I look for fun ways to relate legal concepts in popular media. The novelty Christmas song, “Grandma Got Run Over by a Reindeer,” written by Randy Brooks and first recorded by Elmo and Patsy in 1979, is about a grandmother who gets intoxicated on Christmas Eve from drinking too much eggnog at a family gathering. To complicate matters she has forgotten to take her medication and she ignores warnings from her family. As a result, she staggers outside into a snowstorm. On her way home, she is allegedly trampled by Santa Claus’s reindeer-pulled sleigh. At the next day’s Christmas “festivities,” instead of celebrating the holiday, “all the family’s dressed in black.” Grandpa acts as if nothing has happened, and is drinking beer, watching football and playing “cards with cousin Mel.” The song suggests that Santa, “a man who drives a sleigh and plays with elves,”is unfit to drive and that the listening public should be wary of him, as a menace to society.
Since I’m an Estate Planning lawyer, I can’t just leave it there. I wonder about Grandma’s estate. (Yes, I do that sort of thing.)
Imagine Grandma survived the attack but was still seriously injured. After the collision, she is unconscious and unresponsive. Her doctor declares her legally incompetent. What happens to Grandma and her stuff depends on what estate planning Grandma and Grandpa have put into place.
First, assume that, like two out of three of us, Grandma and Grandpa have NOT done proper estate planning. When Grandma is admitted to the hospital, since she does not have an Advance Directive for Health Care, she has no control over who will make health care decisions for her now that she can’t communicate her wishes. Under Georgia’s Medical Consent Law, the next of kin can consent if the patient is unable to do so. The spouse is the first option for a patient who is married. So it’s all up to Grandpa. Yep, he’ll get around to deciding that right after the next round of cards.
For another scenario, let’s assume Grandma makes it, but her care is getting expensive. She and Grandpa had maintained separate bank accounts all these years. Grandma’s pension is in her account and all of the household bills are in her name. Grandpa will have to go through a lengthy, public and costly court process to be appointed as Grandma’s guardian and conservator to access Grandma’s pension to pay hospital and household expenses. He will most likely have to post a bond to make sure he doesn’t mishandle Grandma’s money. This process will take several weeks and will cost several thousand dollars. Considering Grandpa’s greater interest in drinking beer and playing cards, it will probably be a hefty bond.
Now, let’s look several months down the road from the horrific attack. Sadly, Grandma does not make it, and finally, “all the family’s dressed in black.” So NOW what happens to Grandma’s property?
Sadly, Grandma did not have a Last Will and Testament. Are you surprised? Georgia’s laws of intestate succession provide the default or “do nothing” plan. It is a one-size fits all Will (sort of like Grandpa’s overalls) that says Grandma’s estate will be split between Grandpa and her unnamed children. Let’s assume Grandma and Grandpa had two children, Elmo and Patsy. Grandpa receives the same size share as each child (but not less than one third) and Elmo and Patsy will also receive one third each. Don’t worry about old Cousin Mel getting anything: before she would become an heir, Grandma’s spouse, children, and all grandchildren, parents and siblings would have had to have predeceased her before Mel, a cousin, receives anything. Okay, so maybe Mel will get the playing cards.
Just like the guardianship and conservatorship, this matter will be handled in the probate court, and is likewise a public, time-consuming, and costly process. Not the smartest of options, but not an unlikely result, considering this silly family.
Let’s look at a more controlled and alternative outcome to the tragic situation now. This time, because she was thinking ahead, Grandma had signed an Advance Directive for Health Care naming Sister Sally as her health care agent. Since Grandma is now unable to communicate her wishes, Sally can make her health care decisions for her. She can admit Grandma to the hospital and request, consent to treatment or withdraw treatment. (And, unlike Grandpa, Sister Sally won’t hesitate!)
this time Grandma also has a durable power of attorney and a revocable living trust, so when she became incapacitated, Sister Sally is able to immediately act on her behalf to handle her finances as her agent or “attorney in fact.” This works out better for Grandpa, too. Instead of having to file for guardianship and conservatorship over Grandma, he could keep his scheduled card games with the guys. Sally becomes the successor Trustee and gained access to Grandma’s money with minimal time and expense and it was all handled privately.
Grandma’s living trust was fully funded (meaning the title of all of her accounts and property were transferred to it), so when she ultimately passed on, her family did not have to go through the several months of delays and costs of a public probate process (several thousand dollars more), but instead was able to have immediate access to the money and property. Sally took a modest fee allotted by Grandma for her efforts as trustee and transferred funds to Grandpa as he needed them.
So the next Christmas, the goose was on the table, as was the pudding made of fig. As the blue and silver candle that matched the hair in Grandma’s wig flickered, everyone remembered Grandma fondly, as they all waited for the jury award in Grandma’s lawsuit against Santa.
And they all lived happily ever after.
(Adapted from a prior post co-written by Steve Worrall and Shelia Manely, originally posted here)
A Health Care Power of Attorney, also called a Health Care Proxy or Durable Power of Attorney for Health Care, lets you give legal authority to another person (a proxy or agent) to make decisions about your health care if you are unable to make them yourself. This prevents the courts from getting involved if there is disagreement between family members and/or the medical community as to what actions you would want taken.
Keep in mind that you will continue to make decisions about your care for as long as you are able. You are only naming someone as a successor, to step in and act for you when you cannot. This document can be valuable even for short periods of time, such as if you are recovering from surgery.
But it is more associated with end-of-life decisions. The person you name as your agent or proxy may make decisions that will extend your life for as long as possible or bring your earthly life to an end. These decisions may include whether or not you should have surgery, if life support should be initiated, and/or if nutrition should be stopped. The legal document includes your wishes on these and other end-of-life issues.
This is a difficult subject for some people to even think about, but it is important that you do, and that you discuss these matters with your physician, family members and friends. The more people who know about your preferences, the easier it will be for your agent/proxy to carry out your instructions. Of course, you might change your mind over time, so let others (especially your agent/proxy) know what you are thinking.
Whom should you name as your agent/proxy? Here are some considerations:
- Most people name a family member, but you can also name a trusted friend.
- It should be someone who knows you well, respects your wishes and will follow your instructions.
- It might bring you some comfort if this person shares your values about faith, life and death.
- You should name more than one person in case your first choice is unable to act. But list them in the order you want them to serve. This would give your agent/proxy others with whom to consult and discuss options, but you want one person (not a committee) making the final decisions.
- Consider your candidates’ personalities and emotional make up, and whether they would be able to handle the responsibility.
If you have been asked to be someone’s agent/proxy, consider carefully if you would be able to follow his/her wishes when that time comes. Most people consider it an honor to be asked, knowing this person has chosen you to have his or her life in your hands.
If you are over 18, choosing a health care agent is one of the most important things you can to do to make sure someone has permission to act on your behalf in a medical emergency. See your East Cobb Living Will Lawyer to help you with this most important task.
If you’re not familiar with the role of a health care agent, this is essentially the person who will carry out your wishes regarding things like life-support, resuscitation and feeding tubes if you are incapacitated and unable to speak for yourself. Your health care agent will also handle the day-to-day decision making regarding your medical care including (but not limited to):
- Medication administration
- Blood and blood products
- Diagnostic tests
- Long-term care (i.e. nursing home assistance, home health care)
- Hiring and firing medical personal
- Determining who can (and cannot) visit you during your hospital stay
- Getting court authorization to obtain or withhold treatment if your wishes are not honored by a doctor or other healthcare professionals
While choosing a health care agent may seem like an easy task, the process is actually much harder and complex when you start working to narrow down candidates.
Remember, your health care agent could be called on to make some of the most difficult and heart-wrenching decisions they’ve ever faced. The job could also turn out to be time-consuming and demanding if you are seriously hurt and require decisions to be made on a round-the-clock basis.
Not to mention, situations such as these can get very emotional. Your health care agent may be called on to carry out requests you’ve made, but they don’t personally agree with. They may also feel pressured by family members to make decisions contrary… …to what they know you would want under the circumstances.
For these reasons, it’s very important that you take your time in choosing a health care agent so you wind up with someone truly qualified for the job. If you’re feeling stuck and still not sure who to pick, here are the top three qualifications I, as an East Cobb Living Will Lawyer, ask my clients to consider when narrowing down their options:
Location– In a true medical emergency, your health care agent may be called upon to make round-the-clock decisions until you are stable. If that occurs, you’ll want someone who lives close enough to meet with doctors and visit the hospital whenever necessary. For this same reason, you might also want to exclude someone who travels on business a lot or has such a demanding schedule that it would forbid them from attending to your care.
Medical Knowledge- While your health care agent certainly doesn’t have to be an expert in medicine, you do want to choose someone who is capable of understanding your medical condition and the choices presented to him or her by the doctors overseeing your care. That may also require you to weed out candidates who are overly squeamish or emotional about medical subjects to ensure the best decisions are made on your behalf.
Loyalty- The person you choose as health care agent should feel a sense of loyalty to you and your wishes to ensure your preferences are fully carried out in the face of emotional stress, personal disagreement or pressure from other family members to make decisions contrary to those you have specified.
As a final thought, you’ll also want to choose someone whom you feel totally comfortable sharing your medical preferences with. Your healthcare directive can only cover so many situations that could arise; therefore, it’s critical you give your agent as much direction as possible in case they are presented with a decision not addressed in your legal documents.
Once you decide on an agent, you’ll need to legally document your choice! Call our East Cobb Living Will Lawyer’s office at 770-425-6060 to start the process of creating a plan that protects your wishes in a medical emergency.
As a Marietta estate planning attorney, I’m often asked, “what is exactly is a health care directive or living will?
Basically, an Advance Healthcare Directive in Georgia, sometimes commonly known as a Living Will, is a legal document that permits someone to make medical decisions on your behalf. This type of document is commonly associated with the decision of maintaining or removing life support for a critically ill loved one, but Health Care Directives and Living Wills cover far more than that.
Specifically, a Georgia Advance Directive for Health Care, or “Living Will,” allows someone to:
– Decide if you want your life to continue on life support or if you want to have them withhold treatment. (a/k/a “pulling the plug”)
– Pick a person to make health care decisions for you if you are unable to do so.
– Make decisions about pain relief options.
– Decide if you want your organs to be donated.
– To make any other decisions about your health care and treatment.
As you can see, a Health Care Directive or a Living Will is essential for someone looking to have their wishes carried out in the event they die or become incapacitated.
The person you select to make the decisions for you is called your Healthcare agent. The agent will be acting on your behalf so their role is very important. When you are selecting your agent, you should consider a few things:
-He or she must be over the age of 18.
-He or she must be reliable and readily available in case something happens to you.
-He or she must be emotionally able to make end of life decisions for you.
-You should consider adding two to three alternative agents in the event that the primary agent is unable or unwilling to make the critical decisions.
-If you appoint your spouse as your agent, and your marriage is dissolved or annulled, your agent’s authority is automatically revoked, unless you specify otherwise.
-If you are pregnant, your health care directive will not be honored.
While a health care directive can give someone the right to make all healthcare decisions for you, it is also possible to limit authority by clearly defining what their scope of power includes. For example, you may decide that your healthcare agent has the authority to decide what type of pain relief you are given, but limit their ability to decide whether to “pull the plug.” It is important to discuss this with an experienced Georgia estate planning attorney to make sure that you are very clear and specific in defining this scope.
Once a Georgia Advance Health Care Directive is signed, dated, and notarized or witnessed by two qualified persons, the Health Care Directive is valid forever, unless and until the individual revokes it. If the primary Agent refuses to follow the instructions dictated, the alternative Agents will be called upon to act on behalf of you, which is why it is important to name alternative Agents.
One final key point to consider when choosing your agent is that the person should actually want to have this responsibility. There are people who do not feel comfortable making such important decisions – even for their own spouse. Therefore, it is critical to have a conversation with whomever you are considering to ensure that they can and will able to make the decisions that you want them to make.
Setting up an Advance Directive for Health Care that truly protects your wishes in the event of your incapacity starts by meeting with a Marietta estate planning lawyer. Here at Georgia Estate Plan : Worrall Law LLC, we’ve made that process easier than ever by offering free Georgia Family Treasures Planning Sessions (normally $750) each month to readers of our blog. So call 770-425-6060 today to secure your spot.