On April 23, 2014, I attended a webinar on advance planning sponsored by the Cancer Legal Resource Center and thought some of you might find the information provided helpful.
Many people avoid the subject of advance planning but it is necessary to ensure that your property is protected and your health care directives are carried out if you are incapacitated, and that your estate is distributed in accordance with your wishes after your death. The Cancer Legal Resource Center strongly recommends you consult with an attorney regarding advance planning.
Your estate includes your bank accounts, safe deposit boxes, stocks, and other assets that are maintained in your name alone. Assets that are jointly owned (which pass directly to the surviving owner) and assets with a designated beneficiary (life insurance, IRAs) are not included in your estate.
A will is a written document specifying how you want your estate distributed after your death. To be valid a will must comply with the requirements of your state. Most states require that it be in writing and that it be witnessed by disinterested parties. If you have a valid will in place, it is important to review it periodically to make sure it still reflects your wishes. If you die intestate (i.e., without a will), the laws of your state will determine how your estate is distributed. In general, an estate covered by a will or the estate of a person who died without a will must go through probate. Some states have simplified procedures for small estates.
A trust is a fiduciary relationship in which one party (the trustor) gives another party (the trustee) the right to hold title to property or assets for the benefit of a third party (the beneficiary). Property covered by a trust does not go through the probate process and information about it is not public. Although a trust generally covers only that property that has been transferred to the trust, it is possible to prepare a “pour over” will that will transfer property to the trust upon your death. Generally it costs more to establish a trust than it does to prepare a will but a trust may save money later as probate costs will be avoided.
Protecting your property if you are incapacitated
A Power of Attorney for financial affairs is a document designating an agent to act for you in the event you become incapacitated. It must be signed and witnessed in accordance with the laws of your state. A springing Power of Attorney (the most common type) becomes effective only when you become incapacitated while a durable Power of Attorney becomes effective immediately. A Power of Attorney ends upon your death.
Health Care Directives
Power of Attorney for Health Care. This is a document designating a person to make decisions regarding your care in the event you are unable to do so. You can include specific instructions or provide only general guidance.) In general you have the following rights regarding end-of-life care: the right to palliative care, the right to refuse food, the right to refuse medical treatment, the right to palliative sedation, and the right to have your wishes upheld.
Physician’s Order for Life Sustaining Treatment (POLST). Forty states have a procedure whereby a patient and physician can agree on life sustaining treatment and sign a form that has the effect of a medical order.
Death with Dignity/Aid in Dying. A few states permit assisted suicide under certain circumstances.
Cancer Legal Resource Center – 866-999-3752 (toll-free) or www.cancerlegalresourcecenter.org
Caring Connections: www.caringinfo.org
Compassion and Choices (end of life issues): www.compassionandchoices.org