A health care directive is an instructional document providing your primary care physician, your family and anyone else you list the information necessary should you become incapacitated. This document outlines what you do want to happen medically, as well as what do you do not want to happen. This differs from a medical power of attorney that appoints an individual to speak on your behalf, as well as make medical decisions for you, should you become incapacitated. This instructional document provides protection from any decisions you do not want made on your behalf.

When creating a will (as well as creating a trust, if applicable), write out your healthcare directive as part of your estate planning process. Estate planning goes beyond that of assignment of assets and properties following your passing, but it is also necessary to maintain your well being until your passing. Without this document, or set of documents depending on how many components you include, your estate plan is incomplete because your health care decisions are not being addressed.

Be aware that there are two types of directives and each should be handled as either separate or combine parts the estate plan. The living will is the first type of healthcare directive, and is an instrument created providing information to your primary care physician, or other health care provider, with your medical wishes. Laws vary from state to state with regard to how to handle a living will, so be sure to confer with your estate planning attorney about how to incorporate this legally into your estate plan. Remember, though, that this document merely provides healthcare providers with instructions regarding your care when you are unable to make decisions or give direction.

The second type of healthcare directive is the assignment of a medical power of attorney. During the creation of a medical power of attorney document, you must name an “agent.” The agent is the person who signs the medical power of attorney document stating they are willing and able to sign documents, speak to health care providers, make medical decisions and seek second opinions when you are incapacitated. Like living wills, laws vary from state to state regarding the rights and responsibilities regarding the medical power of attorney. Before assigning an agent, be sure to hold a conversation with then to ensure they are able to handle this responsibility and are willing to do so.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Life can turn on a dime without any warning, and things can rapidly change without you even realizing it is happening. One day you could be just fine and loving life, and the next day you could be lying in a hospital bed clinging to life. Yes, it can happen that fast – even faster in some situations! What do you do, though? While you can’t prevent things from happening because it is, after all, unexpected – you can put some plans into place.

Incapacity planning, believe it or not, is an integral part of the estate planning process. Yes, you are going to work on creating a will and you are going to work on creating a trust (or several trusts, depending on your situation). Wills and trusts are just part of the entire picture which is called your estate plan, though. You have to think about everything, including what might happen or what you don’t expect to happen. That’s where the incapacity planning process starts.

Do you want other people making your decisions for you? Of course you don’t, which is why you want to create a durable power of attorney or a medical power of attorney. Speak with your estate planning attorney to determine which one is the best fit for your estate plan, or if both of them might be necessary. With these tools in place, you are certain your wishes are met medically and personally. Without these tools in place, your wishes are likely not going to be 100% met. That isn’t a comfortable situation for anyone, particularly family members who have to stand by and watch – or go to court in attempts to gain guardianship over you while you are incapacitated.

What’s next? In addition to these documents, you must ensure funds are available should long term care or nursing home expenses become part of the equation. You already know medical expenses are on the horizon, and that too should be part of your incapacity planning. Your estate planning attorney may advise that you create a trust to place these funds into, in addition to seeing if you qualify for Medicaid or Medicare benefits. Because you are trying to plan for every eventuality, you must not overlook the financial aspect of the entire situation.

Work with your estate planning lawyer consistently in order to keep your documents current and up to date as life situations change. You may wish to make changes or additions to your incapacity plan which will, in turn, change your estate plan.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Guardianship is a court proceeding in which a surrogate decision-maker is appointed to make either personal and/or financial decisions for an adult that lacks the capacity to make these decisions on their own.  It is often used as the last resort in helping an elderly loved one who can no longer handle their own affairs.

There are no winners when it comes to guardianship cases, and it is in everyone’s best interest to take steps to avoid the possibility of a court-ordered guardianship in the future.  Estate planning uses tools that can avoid guardianship court proceedings later in life.   Some of the most often used tools include:

1.     A Durable Power of Attorney:  A Durable Power of Attorney is a legal document that enables a person to designate another person, called an agent or an attorney-in-fact, to act on his or her behalf  in the event the individual becomes incapacitated.

2.     A Trust:  A Revocable Living Trust is a powerful estate planning tool that can plan for incapacitation and avoid guardianship since assets held within the trust can be accessed and managed by the person or institution you name as your Trustee or your Successor Trustee.

3.     A Health Care Proxy:  A Health Care Proxy is one of several advance medical directives used in estate planning.  It is used to appoint an ‘agent’ or ‘proxy’ to make health care decisions for you if you are unable to do so.  State laws vary on the different terminology used in advance medical directives, some may use the term health care agent in referring to this document.

Guardianship is a legal measure which essentially deprives a person of control of his or her life.  Proper estate planning allows you to take the steps and make decisions now to avoid losing your control in the future.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Many people find the term “estate plan” somewhat confusing. A very large percentage of the population do not really understand what an estate plan is or what types of documents are included in an estate plan, or may believe that estate planning is only for the wealthy.

The truth is that nearly everyone has some type of estate, even if that only consists of a small bank account and an automobile. Whatever you leave behind when you die is considered to be your estate; this also includes your debts. When you have an estate plan, what you really have is a plan to handle all of your affairs once you are gone.

In addition to tying up all of the loose ends once you are gone, an estate plan can also provide you and your family with protection in the event that you should become incapacitated. It is important that you have legal documents that appoint someone to act on your behalf concerning your financial and legal affairs. You will also want to appoint a health care agent to make medical decisions for you if you are unable to make those decisions yourself.

The basics of an estate plan will usually include only a few documents; these documents are a will, a Living Trust, and a Durable Power of Attorney. Additionally your estate plan can also include Advanced Medical Directives, which consists of a Medical Power of Attorney and a Living Will.

If you have minor children, you will use your will to name someone to act as the guardian for your children if something should happen to you while they are still young. The Living Trust will hold your property safely for those you would like to leave it to when you are gone. You will also appoint a trustee to manage those assets.

Of course your Durable Power of Attorney will allow someone to manage your legal and financial affairs if you cannot do so for some reason, and your Advanced Medical Directives can help you and your family prepare for any medical emergencies that might occur in the future, plus you can include your wishes for end of life medical treatment in your Living Will.

Everyone should have a basic estate plan, no matter the value of his or her estate.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

No one likes to think about it, but it’s a fact of life. At some point, we will all need to have our financial affairs in order because everyone passes away. Making decisions early will allow you to have some semblance of security that your loved ones will be taken care of and will go through less grief when it comes to your financial affairs. Here are five things you can do to get your financial affairs in order.

First, you should really consider having life insurance especially if you have young kids or own property. If you think you may have estate taxes when you pass away or you will a lot of debt, it makes good sense to have life insurance. Purchase it as young as possible so that you will get better rates.

Second, you need to make certain that you have a financial power of attorney who can make decisions about your finances in case you become incapacitated. For instance, if you were to end up in an accident and then in a coma, you will need someone who can handle paying your bills, selling real estate if necessary and handling the other financial affairs that may come up.

Third, make sure that you protect your children as much as possible by naming a guardian who can take care of them and manage any money or property that you are leaving to them. A qualified estate planning attorney can help you with this.

Another important component of planning your financial affairs is covering any funeral expenses up front. You can set up a specific kind of trust that will allow you to deposit funds so that your affairs are taken care of without burdening your family or loved ones.

Finally, make sure that you store all of your documents in a place where your executor can find it. This includes things like your will, trust documents, stock certificates, real estate deeds, bank account information and life insurance information.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Talking with your parents about disability planning can be almost as difficult as talking with them about estate planning, but it is just as necessary. Disability planning should be a key element in your parents’ overall estate plan. There are a number of conditions that could cause an elderly person to become disabled, but one of the most common, and dreaded is Alzheimer’s disease.

A very large percentage of people with dementia suffer from Alzheimer’s disease. Though this does not mean that one of your parents will eventually be afflicted with this disease, it does mean that it is a possibility.

One of the most important reasons why it is important to have this discussion with your parents is so that you can find out what their wishes are now, while they are still of sound mind and healthy enough to let you know what it is they want.

For example, what are your parents’ thoughts on nursing home care? What do they think about artificial life support? What resources are available to help cover the cost of long term care?

These are all very important questions that you will want answers to sooner instead of later. Waiting until it is too late to help your parents plan for disability will only put more financial and emotional strain on the entire family.

When you sit down to have this discussion with your parents, you will want to address a few specific issues. These issues include asking what your parents’ wishes are as far as long term care, what legal documentation they currently have, what their medical preferences are, as well as what their current financial situation is.

Many people believe that they already know enough about their parents that they do not really need to have this discussion, but nothing could be further from the truth. Elderly people do not always inform their children of what is in their estate plan, what their financial situation is, or how they feel about long-term care and end of life care. Even if you believe that you already know enough about your parents’ situation that the discussion is not necessary, reconsider and ask them anyway. You may be surprised to find out that you are not as well informed as you thought.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Did you know that a power of attorney, like a Will, can be challenged by concerned or disgruntled loved ones? This is especially true when the person making the power of attorney is elderly. Family members might be concerned about a lack of mental capacity or about their loved one being coerced into appointing an agent against their will.

If you’re worried that your family members might challenge your power of attorney, there are a few steps you can take ahead of time to minimize the risk.

• Get Help.  When you anticipate trouble, it’s smart to get the help of a qualified, experienced expert. Meet with an estate planning attorney and let him or her know your concerns. This will allow your attorney to make the appropriate recommendations and help you take the necessary steps to reduce the chance of a successful challenge to your power of attorney.
• Meet With Your Attorney on Your Own. Particularly if there’s a concern about undue influence, you’ll want to make sure that no relatives or friends accompany you into your actual consultation with your estate planning attorney.  It’s fine to have someone drive you to your appointment and wait in the lobby, but having that person sit in on your consultation could give rise to concerns that you were not the one in control of making the decisions.
• Consider Consulting Your Doctor. If lack of mental capacity might present a concern, your attorney may recommend that you see your physician for a written statement certifying that you’re mentally capable of making a power of attorney. The certification will need to be dated as closely as possible to the time your power of attorney is signed.

These are just a few general suggestions for reducing the chance of a challenge to your power of attorney. Your estate planning attorney can give you detailed, personal guidance.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

An Alzheimer’s diagnosis means significant life changes, for the patient and for his entire family and circle of friends.  If your parent or another loved one has been diagnosed with the disease, one of the first things that needs to be considered is incapacity planning: who will be in charge of financial and medical decisions as the illness progresses and your loved one can no longer manage these things by himself?

Depending on your loved one’s condition, one of two approaches can be taken.

Incapacity Planning

If an Alzheimer’s patient still has the mental capacity to understand the legal significance of his actions, he can make an incapacity plan. This involves using a financial power of attorney to put a family member or friend in charge of his finances. It also involves using a durable power of attorney for healthcare to name a trusted person to make medical decisions on his behalf, and making a living will, clarifying what end-of-live medical interventions should or should not be used. With an effective incapacity plan, your loved one can rest assured that people he knows and trusts will be in charge of making all the important decisions once he loses the ability to do so himself.

Living Probate

If the patient no longer has the mental capacity to make an incapacity plan, then it’s time for friends and family, with the help of the probate court, to step in.  Through a process known as “living probate”, the court can appoint a guardian to make personal decisions on behalf of your loved one and/or a conservator to manage his finances.

Need more information on incapacity planning or living probate? A qualified estate planning attorney can help.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Part of having a complete estate plan is thinking ahead about who should be in charge of your finances if you become mentally incapacitated at some point during your life. One of the essential documents in your incapacity plan is a Financial Power of Attorney, and many people have a Durable Financial Power of Attorney.

What Makes it Durable?

With a Durable Power of Attorney, you appoint an agent to manage your assets and make financial decisions for you, and not only does your agent have immediate authority to act on your behalf, that authority continues in the event of your disability. There’s another type of Power of Attorney, called a “Springing” Power of attorney, which only takes effect after you’ve been declared mentally incapacitated.

The Practical Difference

Here’s the practical difference: if you appoint an agent using a Durable Power of Attorney, he or she can pay bills on your behalf, access bank accounts, and otherwise act on your behalf even while you’re completely well and able to handle your finances on your own. So, if you take an extended vacation or need to go into the hospital, your agent can help make sure that your financial affairs run smoothly. With a Springing Power of Attorney, your agent is limited to acting on your behalf once there’s been medical determination that you are incapable of managing your own affairs.

Your estate planning attorney can help you decide which type of Power of Attorney you need, and can help you put in place an effective incapacity plan.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

When you establish a Financial Power of Attorney, it is with the intent of appointing a trusted person to take care of your finances in the event of your disability. But did you know that not all Powers of Attorney allow your agent access to your retirement plan?

In order for your agent to have the authority to access and manage your 401(k), IRA, or other retirement plan, your Power of Attorney must contain specific language authorizing such access. If you have a do-it-yourself Power of Attorney, or even one that was drawn up by an attorney but is several years old, your agent might not have all the authority you think they have.

How can you make sure that your Power of Attorney will function effectively if you become incapacitated? You’ll want to have it reviewed by a qualified estate planning attorney. He or she can let you know which powers your agent does – and does not – have. If your agent does not have sufficient authority to manage your retirement accounts, your attorney can put in place a new Power of Attorney.

Of course, if you don’t have a Power of Attorney, you’ll want to meet with an estate planning attorney while you’re still alive and well. He or she can make sure you have a fully functioning incapacity plan so that, in case you become mentally disabled, the people making decisions on your behalf will be those you have chosen, and not those a court chooses for you.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.