When Powers-of-Attorney are Not Accepted

While powers-of-attorney are important estate planning tools, they may not always be recognized by third parties. Why might this happen?


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Starting College? Start an Estate Plan

college studentsStudents leaving home for college may be focusing on studying for classes, but they may want to consider studying their own estate plan. There are over 200 colleges in North Carolina, but how many matriculating students have thought about what could happen if they are in an accident far from home?

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3 Tips to Avoid Family Conflicts in Estate Planning

Whether you are creating an estate plan for the first time or making changes to one, be aware that how you plan to leave your assets may create tension in your family. Although the potential for conflicts can develop without a Will, different treatment of children or other beneficiaries as part of a well thought out and drafted estate plan can cause animosity among family members.

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Estate Planning for Same-Sex Couples in North Carolina

same sex marriageThe landmark federal ruling of the United States vs. Windsor in late June 2013 has deemed the Defense of Marriage Act unconstitutional. The federal Defense of Marriage Act had defined marriage as a legal union between a man and a woman. The case involved Edith Windsor and Thea Spyer, a same-sex couple who married outside the United States in 2007 after living together in New York for over 40 years. New York recognizes same-sex marriages from other jurisdictions. However, when Spyer passed away, Windsor was not granted surviving spousal rights for federal estate tax purposes and her inheritance was deemed ineligible for the marital deduction. The Supreme Court ruled the federal government will conditionally recognize marriages under federal law based on the State’s recognition of the legal union. Windsor will now be reimbursed (with interest) for the taxes she had originally been required to pay.

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Estate Planning Steps Before 40

north carolina estate planningAccording to the North Carolina Office of State and Budget Management, as of 2012 there are over 3.5 million people in North Carolina between the ages of 18-44. In 20 years, approximately half will be close to retirement age. 
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Estate Planning for Unmarried Couples in North Carolina

north carolina estate planningThere are thousands of couples living together in North Carolina who are not married. Relationships may be just a year old or spanning a few decades. How can unmarried couples protect their rights in the event their partner becomes incapacitated or passes away? Long-term relationships, regardless of marital status, likely involve purchasing real property, joint assets, debt, illnesses, and other major life events. Outside of marriage, how can cohabiting adults plan their estate?

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3 Estate Planning Mistakes You Can Fix

revising estate plansChoosing to make an estate plan is smart, but some individuals happen to make mistakes at the same time. Estate planning should not be intimidating. Here are common estate planning mistakes, their consequences, and how to avoid or resolve them:

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What Happens if Your Beneficiary Dies Before You Do?

north carolina estate planningAs you prepare your Will and estate plan, you will choose beneficiaries to receive your financial and personal assets. What happens if a beneficiary dies before you do? If you pass away before updating your Will to reflect the beneficiary’s death, how will your assets be divided?

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Should an Estate Plan be Revised Before or After a Divorce?

north carolina estate planningWe’ve written about the importance of updating your beneficiaries, but when you’re going through a divorce, should you update your estate plan while navigating separation or after the divorce is finalized? If you do not have an estate plan, an excellent time to create one is when your marital status changes.

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Special Needs Planning: When Children Become Adults

Parents of special needs children need to carefully plan for their children’s future. Many families turn to special needs trusts to ensure their child will have access to finances after their deaths, without hindering the child’s ability to qualify for public benefits, such as Social Security and Medicaid.

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Serving Estate Planning to the Sandwich Generation

north carolina elder law attorneyThe “Sandwich Generation”—today’s 10 million baby boomers who care for both their own children or grandchildren and elderly parents or relatives—may need to take a different approach to estate planning. New research shows approximately 15% of baby boomers contribute financially to care and living expenses for their elderly family members. The average life expectancy is only going up and many seniors will outlive their savings. When caring for aging parents, particularly when it includes financial contributions, estate planning should include consideration of the parents’ eligibility for Medicaid long-term care coverage, Veterans benefits, the caregivers’ access to medical records, the caregivers’ authority to make medical and financial decisions for the parents, and possibly guardianship.

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Memory Loss, Retirement and Aging

Memory loss comes in many forms. From mild cognitive impairment and dementia, to the severe effects of advancing Alzheimer’s, the number of senior citizens affected by memory impairments is only going up. 1 in 5 Americans over the age of 70 are afflicted by some type of memory loss. Families often recognize the importance of advanced estate planning when thinking of retirement for aging Americans with a growing rate of memory impairment. However, seniors may avoid discussions about retirement planning because they are concerned about losing their independence – both financial and otherwise. By meeting with an estate planning attorney in advance, individuals can take the steps needed to help preserve the independence that most fear will be lost as they age.

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Statutory Forms vs. Five Wishes: Health Care Documents in NC

north carolina elder lawNorth Carolina health care directives and powers of attorney are required in order for another person to make decisions about an individual’s medical or financial matters. As with most North Carolina estate planning and elder law tools, there is not just one way to prepare the necessary documents. Out of the options for advance directives and health care powers of attorney, which is better? Statutory forms or the Five Wishes documents?
  • North Carolina’s statutory form for a living will and health care power of attorney are valid statewide. The documents meet the requirements of North Carolina law; however, individuals are not required to exclusively use them. One can file these documents through the NC Advance Health Care Directive Registry.
  • Five Wishes meets the legal requirements for an advance directive in North Carolina. In fact, it is recognized in almost every state. (The only states that do not recognize Five Wishes are Oregon, Utah, Kansas, Texas, Alabama, Indiana, Ohio and New Hampshire.) Five Wishes is a set of forms that allows one to name a person to be their health care agent, and to check boxes and write statements in response to questions about medical treatments that one may or may not want under certain circumstances.
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The Conversation - How to Talk to Loved Ones About Elder Care Issues

I recently met with a loving grandson, who needed some advice regarding his grandmother. His grandmother currently lives in another state. She was recently diagnosed and treated for cancer, but in the process was also diagnosed with dementia. She moved into an assisted living facility after her cancer surgery, and is not likely to move back home. Her only child lives here in North Carolina, and so a move to a North Carolina assisted living facility is likely the next step.

The grandmother does not have much income or assets, so paying for her care is a top concern. Before we could truly discuss options and develop a plan, though, I would need a more accurate picture of her finances. While I would need to meet with the grandmother personally to determine her legal capacity to make decisions and sign documents, I suggested that she have Powers of Attorney in which she designates who can make financial and medical decisions for her. The grandson mentioned his grandmother is hesitant to give up control, and that she’s been expressing fear and distrust lately where there was none before, possibly resulting from the dementia. He asked what happens if she doesn’t sign one, then declines to the point she can’t sign one, and the facility decides she needs someone to make decisions for her. I explained that guardianship – the court process of determining someone incompetent and appointing a decision-maker – might become necessary.

Then the grandson said, “Okay, well, do you have any tips on how to talk to her about this? How to start the conversation?”

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Health Care Legal Documents Vitally Important

To help increase awareness of the importance of having up to date health care legal documents (Health Care Power of Attorney, Living Will and HIPAA Authorization), TrustCounsel is offering all three documents for $50 today and tomorrow (September 29 and 30) to North Carolina residents through OurLocalDeal.

National Health Care Decisions Day

Today is National Health Care Decisions Day.  Take charge of your future - talk to family, your doctor and your estate planning attorney about your wishes.  Everyone age 18 or over should have a Health Care Power of Attorney, Living Will, and Authorization for Use and Disclosure of Protected Health Care Information (HIPAA Authorization).  When my kids turned 18, I made sure they each had a complete estate plan, including these documents.

Am I Ready to Die?

I'm at home today, sick with the flu.  Last night was rough, fever, chills, cough, and inability to sleep, but I feel a bit better right now.  However, during the worst of the night, a thought came to mind that it might actually be a relief if my mortal existence ended.  Not that I really wanted it to, but it made it easier to imagine truly feeling that way in the event of a painful terminal illness.

As I often say, estate planning involves sometimes difficult discussions.  This post is no exception.  This morning I thought to myself, that while I by no means wish to die any time soon, if the time came now, I am ready in many respects:

  • I tell my family members regularly that I love them.
  • I have some regrets, but for the most part I've had a life well-led.
  • I believe that I have been forgiven for the few times that I have regretfully hurt others.
  • My family members know my wishes for a memorial service (party!) and disposition of my remains.
  • My will and trust are up to date and reflect my wishes.
  • The beneficiary designations for my life insurance and retirement are coordinated with my estate plan.
  • For my few important personal possessions - family antiques, Winchester .30-.30, paintings and prints, etc. - I have specified which items will be given to daughter and which to my son. 
  • I have made arrangements for a meaningful charitable gift. at my death.

So, while I hope the rider on the pale horse does not appear on the horizon for me for a few decades, if he comes I will know I have prepared the best I can.

NC "Will to Live" Durable Power of Attorney

Most people who execute living wills, health care powers of attorney and other advance directives express their desire to not have their lives prolonged if terminally ill or in a persistent vegetative state. 

However, there are some who believe that all or many measures should be taken to prolong their lives.  The North Carolina statutory documents are not really designed for this purpose.  Thanks to a client, I recently discovered the "Will to Live" Durable Power of Attorney, which is designed for persons who want to be kept alive by artificial nutrition hydration and nutrition, as well as other life-prolonging measures under most circumstances.

This document does meet the NC statutory requirements.  Just as with the standard living will, I would encourage those who are interested in using it to discuss it with both their physician and their estate planning attorney.

NC Medical Board Recommends Advance Directives

The website of the North Carolina Medical Board contains many Position Statements, including one on Advance Directives, a portion of which is quoted below:

"It is the position of the North Carolina Medical Board that it is in the best interest of the patient and of the physician/patient relationship to encourage patients to complete or authorize documents that express their wishes for the kind of care they desire at the end of their lives. Physicians should encourage their patients to appoint a health care agent to act through the execution of a Health Care Power of Attorney and to provide documentation of the appointment to the responsible physician(s)."

and one on Pain Management and End-of-Life Care:

"The Medical Board will assume opioid use in such patients is appropriate if the responsible physician is familiar with and abides by acceptable medical guidelines regarding such use, is knowledgeable about effective and compassionate pain relief, and maintains an appropriate medical record that details a pain management plan." and

"The health care team should give primary importance to the expressed desires of the patient tempered by the judgment and legal responsibilities of each licensed health professional as to what is in the patient’s best interest. "

Those with an interest in these issues would be well-advised to read the Position Statements and discuss them with their physicians.

Today is National Healthcare Decisions Day

2010 marks the 20th Anniversary of the enactment of the Patient Self-Determination Act, and April 16th, 2010 is the Third Annual National Healthcare Decisions Day.

So, make sure that you, your family and friends all have up-to-date Health Care Powers of Attorney, Advance Directives (Living Wills) and Authorizations for Use and Disclosure of Protected Health Care Information (HIPAA Authorizations) It's also important to talk your doctor and family about your wishes.



NC Medical Society Website - A Resource for Advance Directives

In addition to attorney-prepared health care planning documents like Health Care Powers of Attorney, Living Wills and HIPAA Authorizations, I often talk to clients about Do Not Resuscitate (DNR) Orders and the newer Medical Order Scope of Treatment (MOST) Form.  These two forms can be obtained only from one's physician, and must be signed by the physician to be valid.

Laypersons often get Living Wills and DNRs confused, and many physicians are unaware of the MOST form.  For those who are elderly or seriously ill, a conversation with one's physician about whether or not to use a DNR or MOST is in order.  The North Carolina Medical Society's website contains quite a bit of information and sample forms.


More on Living Wills from the Wall Street Journal

Make Time to Create an Advance Medical Directive - I recently had the opportunity to hear a presentation by Bill Colby, the attorney who represented Nancy Cruzan's family in the right-to-die case that went all the way to the U.S. Supreme Court.  Mr. Colby has written a book Unplugged: reclaiming our right to die in America, which I have purchased but have not yet read.  If Mr. Colby writes as well as he speaks, it should be an interesting and information book.