May is National Elder Law Month. Unlike most attorneys whose work is defined by the type of law they practice, elder law attorneys are best described by the clients they serve. Elder law attorneys work with seniors, disabled individuals, and their families in the following areas:
An obituary can be much more than just a dry announcement of the time and location of your funeral or memorial service. It can be a way to share your life story, communicating information about significant events and people, as well as important values you would like to impart to others. You do not need to leave this task for grieving family members to do after you pass away: Instead, writing your own obituary can be an important part of your estate planning that you can do today.
While this isn’t a cheerful topic, it is a necessary one. Sooner or later, someone you know will pass on. The purpose of this blog post is to give you a checklist for what to do in the minutes, days, and weeks following death. In Washington State, it usually takes about a year to “wind down” someone’s life — but you should have assistance of a probate attorney after the first week or two. If death is anticipated, it is helpful to think about these steps before someone passes, so that you can be ready.
“I want a will. What are all these other documents?”
A good estate plan includes 4 basic documents: a will, a power of attorney for health care, a power of attorney for finances, and an advanced directive. For families with minor children, it also includes an appointment of temporary guardianship, and the will should (at minimum) include a testamentary minor trust. For families with assets above the Washington State Estate Tax Exemption, or families with special needs children or adults, it may include a special needs trust, revocable living trust or other tax-planning documents.
Will
This is what most people imagine when they first first come to me. It is the document that names who your beneficiaries are, details what you want to happen with your property, and nominates your personal representative (sometimes referred to as an executor of your estate). For families with minor children, it often includes the creation of a trust benefiting the children and naming a trustee, and the appointment of permanent guardians. This document comes into effect after you pass away. If you die without a will, your property will pass to your heirs through intestate succession — which may not divide your property in the way that you would’ve wanted.
You must sign your will in the presence of two uninterested people, who can testify that you are of sound mind and judgment in your intent to create your will. Often, a notary public will certify the signatures of the two witnesses.
Power of Attorney for Health Care
This document comes into effect when you are alive but incapacitated. In it, you can name the person you want to make health care decisions on your behalf if you are unable to make them yourself. This document needs to be notarized, but not witnessed, for a hospital to accept it.
Power of Attorney for Finances
While the best practice is to list your spouse on all of your financial accounts, sometimes we forget or simply run out of time. This document allows the person you name to have access to your financial accounts — whether trusts, bank accounts, credit accounts, etc. It can either take effect if you are incapacitated, or it can take effect immediately upon signing. I always recommend that it take effect immediately, as it can take time to get a doctor’s statement of incapacitation and the mortgage still needs to be paid on time. This document needs to be notarized, but not witnessed. In addition, while not strictly legal, many banks will refuse to honor a Power of Attorney that is not recent, under the assumption that it could’ve been revoked in the intervening years. To avoid hassle, I recommend resigning this document every 3-5 years.
Advanced Directive
This is the document that details what kinds of medical care you would like to received at the end of your life. The provisions do not take effect unless you are incapacitated and your condition is terminal, with little likelihood that you will survive without life support or other significant medical interventions. We go line-by-line through the conditions that would need to be present for the document to take effective, and line-by-line through the kinds of treatments you would want to refuse should those conditions be present. For it to be effective, you must sign this document in the presence of witnesses who can affirm that you are of sound mind and judgment in making these decisions. This document is one of the best gifts you can give your loved ones — it is hard to talk about end of life issues, and the people who love you want to honor and respect your wishes. This is one way to make your desires known and understood.
Trusts
For families with assets above the Washington State Estate Tax Exemption, a trust can be a good vehicle for ensure that assets are used for the benefit of your children, and not paid as tax to the state. For most of my clients, the vast majority of assets are community property, which means they automatically transfer to the surviving spouse upon death. There is an unlimited tax exemption for property that transfers to your spouse. However, the tax kicks in when that property transfers to your children. By transferring the first spouse’s property into a trust for the benefit of the children and administered by the surviving spouse, those assets pass directly to the children under the exemption limit, and are not included in the estate when the surviving spouse passes. This is a basic testamentary trust, which is written into the will for most families with minor children.
However, if your assets are above the tax exemption, it may be beneficial to create a trust now, rather than waiting for the first spouse to pass. The biggest factor in making this determination is whether your family needs the financial flexibility to use those fund right now, or whether it would work to lock the property into a trust. The more certainty in your financial situation, and the greater your total assets, the more viable a living trust becomes.
Writing out your advance directive, or living will, is an important part of your estate plan. It allows you to state what kinds of treatments you want to receive should your attending physician determine that you have developed a terminal or hopeless condition, or that you are unable to make your own medical decisions, and a second doctor agrees. It includes a power of attorney for health care, who can act as a guardian should you be unable to make decisions yourself, and will give him or her guidance as to the care you would want to receive.
Specifically, you can sign an advance directive refusing life-saving treatment under a variety of circumstances, including when you are in a coma or unconscious for a determined length of time, when you are diagnosed with dementia or Alzheimer’s, or if you are severe pain requiring sedation such that you cannot communicate. You can also specify which kinds of life-saving treatment you would refuse under those circumstances, including refusing life-saving surgeries and CPR, or simply refusing nutrition and hydration other than normal food and water received orally. This is also the time to indicate how aggressively you would like to receive treatment for pain.
Lastly, you can indicate what should happen with your body after you pass. Would you like to donate organs or tissues? Allow it to be used to advance medical education and research? Who should make arrangements for your funeral? And what should ultimately happen with your remains?
To be effective, your advance directive must be signed before two witnesses (another reason why it’s helpful to do it at the same time as your will). Yet it can be revoked by a written statement to that effect at any time.
Once you have signed your advance directive, give photocopies to your designated health care agent, your spouse and (adult) children, your doctors, your close friends, your clergy, and the person you designate to make funeral arrangements. While it may be uncomfortable, it is important that these people know what you would want and not want to happen. Ultimately, they want to honor you and your wishes during this time, and they will be grateful that you took the time to think about what you want and to discuss it with them.
It is a good document to keep in an easy-to-find place. If you have a file cabinet in your home with other important papers, for example, that would be a good place. A safe-deposit box is not as it can be hard to access quickly. I often recommend that clients keep a copy in the glove box of their car(s) and in their suitcase pocket when traveling. Wherever you keep it, be sure that your agent, family, and close friends know where to find it.
