Oregon Estate + Business Planning Blog

If you only have ONE document for your aging parent, make it this one.

If you have an aging parent, then you have, undoubtedly, thought about their estate planning needs. You have probably considered:

~That mom and dad need a will or trust that says how their property will be distributed after their deaths;

~That a personal representative (a.k.a. executor) needs to be chosen to be in charge of their estate;

~That a healthcare representative (a.k.a. healthcare power of attorney or healthcare proxy) needs to be chosen to make healthcare decisions if mom or dad is unable to do so for themselves and one another;

~That conversations need to happen so that the family knows what to expect; and

~That steps need to be taken to ensure there will not be an unexpected tax bill or any other unexpected fees.

BUT, if you and your parents are like most people, you have procrastinated on getting everything together, and your family probably faces a HUGE headache and a HUGE legal bill if you wait until mom or dad has a stroke or some other accident or illness that makes them unable to legally sign documents.

The ONE DOCUMENT that can save you from the headache of not having a plan in place in this event is a Durable Power of Attorney. This will enable the person named to continue with estate and Medicaid planning for their incapacitated loved one. Without it, you will pay thousands of dollars and many months going to court to get that authority.

And I know exactly what you're thinking: "Oh, great! I saw one of those at the printing store/online/at my bank!" No. Do not rely on these two-page forms to help you if your aging parent or spouse has a stroke or is otherwise incapacitated. Those forms MAY be sufficient if all you need to deal with are simple bank accounts. But if you need to deal with any other types of property, such as real estate, securities, retirement accounts, business interests, and many other types of property, those forms will not be sufficient. You will need a Durable Power of Attorney that gives you express authority to deal with each type of property in question. The two-page form will probably also be insufficient to help you to apply for Medicaid or VA benefits for your loved one. This means that you will be paying out-of-pocket for medical expenses while paying a lawyer and waiting months to be able to apply for those benefits.

The best thing you can do is see an elder law attorney while your parent is still able to legally sign documents, so that they can at least get a comprehensive Durable Power of Attorney signed.

(Of course, the very best thing you can do is help your aging parents to get an entire plan in place that protects their wishes and plans for their future care.)

We are able to help with this important task that will make your life so much easier in the long run! Give us a call.

To your family's health & prosperity,

Candice N. Aiston

P.S.  Want to get started on the most important planning you'll ever do for your family?  Give our office a call at (503) 235-5150 to get started.  You'll be glad you did.

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Want to use this article in your newsletter or on your blog or website?

 

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Candice N. Aiston is an Estate Planning Attorney for families in the Portland, Oregon area.  She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance.  If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

 

The 3 Documents Your 18-Year-Old Child NEEDS.

There comes a time in every parent's life when their teenager officially becomes an adult. Many of those parents are sending their 18-year-olds off to college this fall. (And truly, I am frightened about this event, which will happen in 5 years for me.) 

I'm going to tell you the 3 major documents that you should MAKE SURE your child has executed as soon as she turns 18, and before she goes away to college. These documents won't only protect her in the event of an emergency, but they will also pave the way for a future of financial and legal savviness. It is important to get your adult child into the habit of consulting professionals when they have important changes i their lives. When you consider the dismal rates of financial intelligence among high school students, it makes so much sense to instill that responsibility now.

Here are the three documents your 18-year-old child needs:

1)  Advance Directive/Living Will/Healthcare Power of Attorney/Healthcare Proxy.

Your child should name a person to make their healthcare decisions for them if they are incapacitated, and outline any healthcare wishes they have. The default is that both mom and dad have the authority to make healthcare decisions for the child. This can be just peachy, but if mom and dad have any disagreements, any decisions could end up in court. 

2)  HIPAA Release.

Your child needs to sign a HIPAA release, so that if she is incapacitated, you are able to access her medical and school records to make healthcare, financial, and education decisions for her. If you don't have a HIPAA release, you may need a court order to access any of this information.

3)  Durable Power of Attorney.

Your child needs to execute a Durable Power of Attorney, so that you can deal with any of her finances if she is incapacitated or otherwise unable to make those decisions for herself. (I have clients whose daughter executed a DPA so that her parents could file her tax return while she was studying abroad.) Again, if you don't have a DPA, you may need a court order to access bank accounts and school records if she's incapacitated.

These documents are the start of a healthy and strong financial life. Call your estate planning attorney today to talk about these issues.

To your family's health & prosperity,

Candice N. Aiston

P.S.  Want to get started on the most important planning you'll ever do for your family?  Give our office a call at (503) 235-5150 to get started.  You'll be glad you did.

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Want to use this article in your newsletter or on your blog or website?

 

You can!  Just please be sure to use this complete blurb with it:

 

Candice N. Aiston is an Estate Planning Attorney for families in the Portland, Oregon area.  She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance.  If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

 

What Estate Planning Documents Do I Need?

I recently returned from a trip to Hawaii, where I visited my family and attended my brother's wedding.  My two kids left a week before me with my parents, and that gave me some time to think about whether my estate plan was up to date.  No, it was not.  My guardian designations were outdated, my trustee designations were no longer going to work for my situation, and the new revisions to the Oregon Inheritance Tax created a big problem for my estate.  Honestly, I am embarrassed to say that I thought, "My plane is not going to crash.  I don't plan on dying.  This can wait."  But after the couple of weeks I just had with a friend dying and with two friends winding up in the hospital, I quickly shook off that nonsense.  I needed to update my plan.  A lot had changed in my life since I last updated it.  

I decided to show you what things look like now. Here is a list of everything in my binder and what you need to include in your plan:

• KidsCare Plan:  Long-term guardian designations; short-term guardian designations; instructions to caregivers about emergency plan; instructions to guardian about long-term care of kids; wallet ID cards (TO RECEIVE YOUR FREE KIDS CARE PLAN, CLICK HERE);
• Overview: The "Cliff's Notes" of the trust;
• Trust Agreement: Outlines terms of trust during lifetime and how assets are to be distributed after death; names Trustees;
• Pour-Over Will: Names Personal Representative and "catches" and assets that may have been left out of the trust;
• Nominations: A quick reference to see who is involved in the plan;
• Personal Information: Your most recent personal and financial information sheet;
• Funding Instructions: Shows you how to title assets and is handy to refer to when you acquire assets in the future;
• Power of Attorney: Names an agent to act for you financially if you are incapacitated;
• Privacy Affidavit: The short and sweet version of what banks and other institutions need to know about your trust;
• Trust Assets: Includes your asset spreadsheet, confirmation of asset transfers, and any information about your assets that your trustee will need to know;
• HIPAA Release: Allows your trustees and representatives to gain access to your medical records without a court order, saving your family money if you are incapacitated;
• Advance Directive: Names a Healthcare Representative to make healthcare decisions for you and outlines your healthcare wishes;
• Memorial Instructions: Everything your family needs to know to prepare an obituary, notify friends and groups of your passing, and plan a memorial service;
• Property Agreements: Any agreements you have with people you co-own property with;
• Personal Property Memorandum: Gives away specific items to specific people;
• Other Documents: This can include a Letter of Instruction to your trustee and letters you or your lawyer writes to your fiduciaries;
• Trust ID Card: This is handy to carry in your wallet to remind you how your trust should be titled;
• CD of Documents: For ease in sending any documents to fiduciaries, banks or other institutions, or doctors;
• Family Treasures Conversation: A recorded message to your family so that you can say all the things you want to make sure you've said.

 Of course, you may need more than this if your estate will be subject to estate taxes, or if you need to incorporate asset protection or business succession into your plan.  The most important part of your plan is professional counsel.  An estate planning attorney will be able to guide you in the direction that is right for your family.

To your family's health & prosperity,

 

P.S.  Want to get started on the most important planning you'll ever do for your family?  Give our office a call at (503) 235-5150 to get started.  You'll be glad you did.

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Want to use this article in your newsletter or on your blog or website?

 

You can!  Just please be sure to use this complete blurb with it:

 

Candice N. Aiston is an Estate Planning Attorney for families in the Portland, Oregon area.  She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance.  If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

 

If I Ever Get That Way, Push Me off a Cliff

"If I ever get that way, push me off a cliff."  I remember hearing my friend's mom say this when I was a teenager.  I do not remember the exact situation, but it was about the idea of being so incapacitated that she would need around-the-clock care.  (I do not mean to knock the idea of nusing care; it's merely an example of things people say about old age.)  I have heard my parents express similar "when I get old" statements.  Has this been the extent of your discussions and planning about incapacity with your spouse, parents, siblings, and other adult family members?  If so, that is not good enough.  Imagine it for a moment if you will:  Your mother went in for a minor surgery and now, for some reason, she is incapacitated and you are the one having to make decisions for her.  Or, your father has had a stroke and the doctors are telling you things that you cannot fully wrap your brain around, and they want you to make a decision.  Or, your spouse was hit by a car while riding his bike to work and now he is in a coma, and the doctors cannot say for sure whether he will wake up and if he does, whether he will ever be the same.  Will any decision you have to make be easy at this point?  Where will you even start? 

It is best to consider these possibilities before they happen and plan for them.  Here are the 4 Important Things You Need to Have to Address Your Family Members' Incapacity:

1.  Communication

The first step to any sort of family planning is Communication.  You need to talk with your spouse, parents, and siblings about what their wishes would be, and together you need to commit to getting the next steps in order so that there is never any question about what should be done.  (TIP: A great way to bring up the discussion with your parents is by telling them about your own planning, and how it made you wonder about whether they have a plan in place.)  Discuss various scenarios, and find out what your family members would want to happen if they were in severe pain, were permanently unsonscious, or had a traumatic brain injury.  Find out their thoughts on both life support and tube feeding.  Find out if their thoughts differ depending on what stage of life they are in when an event happens (i.e. getting hit by a car when you are 41 vs. having a stroke when you are 85). Tell them your thoughts too.  Do not assume that everyone knows what to do, and do not leave that kind of burden on your family to figure out.

2.  Legally Executed Advance Healthcare Directive (called by other names in different states)

Make sure that you and all adult family members have executed an Advance Healthcare Directive.  Each state differs on the requirements for how this is executed, so it is best to see an attorney to assist with preparation.  Your directive should name a Healthcare Representative, as well as an Alternate Healthcare Representative.  This person will be responsible for making healthcare decisions for you according to your directive or instructions.  If you feel very strongly about your healthcare wishes, you should make the Directive binding on the Representative.  Otherwise, you can make the document merely instructional, with your Representative having the final say.

3.  Durable Power of Attorney

It is very important to have a Durable Power of Attorney document executed, because you will need someone to make important financial decisions for you if you are incapacitated.  Once you are incapacitated (even just mentally), it is too late to execute this document.  Your family will have to go to court to prove that you are incapacitated and get a conservatorship appointment.  I cannot tell you how many times I have had people contact me to ask them if I can help them get Power of Attorney for a parent who is already incapacitated.  It is too late to do it the easy way at that point, and the hard way costs a lot of money.

4.  HIPAA Release

A HIPAA Release is necessary these days, so that your Representative and Agent (Power of Attorney) can get information from your doctor to prove your incapacity.  Recent laws protect healthcare information and doctors cannot just give your family members information unless they have a release or a court order.  Without a HIPAA Release, the other documents may be completely useless, until after the family goes through a court proceeding.

Make sure that you and your family discuss all of these issues and get a plan in place while everyone is healthy and able to communicate.  The consequences of waiting too long could be financially and emotionally devastating.

To your family's health & prosperity,

 

P.S.  Want to get started on the most important planning you'll ever do for your family?  Give our office a call at (503) 235-5150 to get started.  You'll be glad you did.

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Want to use this article in your newsletter or on your blog or website?

 

You can!  Just please be sure to use this complete blurb with it:

 

Candice N. Aiston is an Estate Planning Attorney for families in the Portland, Oregon area.  She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance.  If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

5 Steps to Ensure Your Family Is Cared for If You Are Incapacitated or Seriously Injured

A few months ago, an acquaintance of mine was hit by a car while riding his bicycle.  Although this father of three young children did ultimately recover, he was incapacitated for 4 or 5 months.  In fact, his recovery is somewhat of a miracle, as doctors initially thought his brain damage was too severe for him to even emerge from the coma he was in. 

This kind of accident can happen to anyone, and if you have loved ones who count on you to care for them, it is essential that you get a plan in place that addresses incapacity.  "Incapacity" means that you are incapable of caring for your family, making financial decisions, and making health care decisions.

Here are 5 steps that you can take to ensure that your family is cared for if you are incapacited or seriously injured:

1. Get a Guardian Plan in place if you have children.

If you have children, it is absolutely necessary for you to get a Guardian Plan in place.  A Guardian Plan names long-term guardians who would care for your kids if you died or were incapacitated for more than a few days; names short-term guardians who would care for your kids immediately so that they would not have to experience foster care; eliminates specific people from being considered for guardianship; communicates the entire plan with everyone involved so that as soon as there is an emergency, everyone knows what to do; outlines your emergency plan for caregivers; and documents matters of importance that your guardians should know. You can purchase a Guardian Plan packet on my website. 

2. Create a Durable Power of Attorney document to enable your spouse or other agent to carry out your financial matters.

You may think that your spouse will automatically be able to deal with your finances and assets if you are incapacitated, but this may not be the case.  If your spouse does not have a Durable Power of Attorney, he or she may have to petition a court to declare you incapacitated and name him or her as your agent.  This can be very costly and very time-consuming, not to mention extremely stressful under such circumstances.  It is a good idea to work with a lawyer instead of using a form off the internet, because most free forms overlook many important areas of your financial life.  To illustrate, most free forms are 3 to 4 pages long, while most of the documents our firm prepares are around 30 pages long.

3.  Outline your health care wishes and name a health care representative.

Every time I talk about health care planning, I start by saying, "Remember Terri Schiavo?"  Terri Schiavo was the Florida woman whose parents and spouse fought for 13 years over her health care, because she had not executed a health care directive.  On each side were very strong beliefs.  The media, the various public interest groups, the Governor, and the Supreme Court all got involved.  This was a huge hullabaloo, but do not make the mistake of thinking that these things could not happen to you.  Do not make the assumption that your family knows your wishes.  Legally name a representative and outline your wishes.  It is a good idea to work with an attorney on this, because the laws on this are very state-specific.

4. Make sure that you have provided resources in the event of your incapacity.

If you are incapacitated, how will your family survive financially?  You have probably thought about life insurance, in case you die prematurely, but have you thought about incapacity as well?  Do an honest assessment of what your family's expenses are monthly.  Find out how much Social Security your family would be entitled to receive.  Find out how much your work disability insurance would pay.  If those payments are not adding up to what the bills would be, consider buying a private disability insurance policy.  It is also a really good idea to start a savings account that holds enough money to cover 6 months of expenses.  It can take a while to start receiving Social Security and Disability payments, and you do not want your family to fall behind on bills.

5. Communicate your plan with your family and everyone involved.

What is a plan if no one knows about it?  It is extremely important that you discuss your plan with your family and with anyone involved in your plan.  Everyone needs to know that  you have executed a plan to care for them, and what that plan is.

I hope that this information is helpful for you.  I truly believe the motto, "Expect the best; prepare for the worst."  I believe that we can live our happiest lives when we've considered the worst and done everything in our power to plan for it.

To your family's health & prosperity,

 

P.S. Have you planned for your incapacity?  We include extensive incapacity planning in all of our estate plans.  Ready to get started?  Call my office at (503) 235-5150 or email me at Candice@CandiceAistonLaw.com.

The documents everyone needs, according to legal expert Alexis Martin Neely

You have to read this article and/or watch the video of Alexis Martin Neely dicussing on CNBC the 5 documents everyone needs.  I am so happy that there is a growing movement of attorneys who are discussing the importance of comprehensive estate planning for families!  I feel that it is so important to dispel all of the myths that keep parents from properly planning to protect their families.

Note that if all you want to do right now is name long-term guardians, you can go to www.KidsProtectionPlan.com to do so for free! 

Of course, naming long-term guardians is an important step, but it is not enough to protect your kids if something happens to you.  Please contact an attorney who will be your attorney for life and who will keep in regular touch with you to make sure you have an estate plan that works.

I recently participated in a training call on Kids Protection Planning, and our office is offering the same complete protection that the Kids Protection Plan offers.  If you are a parent in the Portland area who want the best protection plan possible for your kids, call my office at (503) 235-5150.

To your family's health & prosperity,

Candice

Warning about Powers of Attorney

When you give someone "Power of Attorney," it is a powerful tool that can be used to protect your assets, but in the wrong hands, it can also be an incentive to steal.  That is why the AARP is pushing for states to adopt legislation making greedy agents liable for damages that occur when they abuse their power.

My advice is:

1) Do not give someone Power of Attorney unless you completely trust them;

2) Consult an attorney to help you draft the document so that it protects your interests; and

3) Keep most of your assets in a Revocable Living Trust with a successor Trustee named, so that the person holding Power of Attorney only deals with small accounts.

My mom sent me a Power of Attorney document

My mom sent me a Power of Attorney document.  What does this mean?

It could be either a Healthcare Power of Attorney or a Financial Power of Attorney, or a combination of both.

In Oregon, we use an Advance Directive document for healthcare.  It must have the language in it that the Oregon State Legislature has decided upon.  If you see an Oregon Durable Power of Attorney, it usually involves financial matters.  (But this is not necessarily true in other states.) 

If you have a Healthcare Power of Attorney over your mom, then you have the authority to make healthcare decisions on your mom's behalf if she becomes incapacitated.  If she has an Advance Directive, you should look to that document to see what she would want you to decide.

If you have a Financial Power of Attorney over your mom, then you have the authority to make financial decisions for her if she becomes incapacitated.  For example, you will pay (out of her funds) nursing home bills.  Or, you will be able to apply for Medicaid on her behalf.

If the responsibility is too much, you should say something now, while she is still of sound mind.  That way, she can appoint someone else.  Otherwise, a judge would have to decide.