Choose Your Team

Estate planning is a team effort.  Actually, there are two teams – the team that creates the plan and the team that implements the plan.  Usually, there is considerable overlap between the two.  I will begin with a description of the implementation team. The implementation team consists of you, your attorney, your financial planner, possibly your banker, and all of the “helpers” named in your documents, such as the personal representative (executor), successor trustee (if you have a trust), your health care agent, and your financial power of attorney.  These are the people who will make sure the plan is put into operation at the time it is needed.  While you are alive and well, you will remain in charge and coordinate any team members necessary, often with advice of counsel. The financial advisor and banker are necessary to make sure assets such as bank accounts and investment accounts are titles properly.  Also, the financial advisor and banker can also help to confirm the appropriate beneficiary designations, pay on death, and transfer on death designations are done.  It is also a good idea to make sure your successor trustee, personal representative (executor), agents, and powers of attorney know their roles.  Some attorneys have workbooks and workshops for “helper” training or “successor trustee” training.  It is never too soon to introduce these roles and the responsibilities that go with them. The team creating the plan will often consist of you, your attorney, your financial advisor and banker. When a plan is created, it is important to consider the titling of assets and the beneficiary designations.  In most cases, it is...

The Truth About Trusts

This must be the season. Maybe it’s because snowbirds return to Arizona. It seems many companies are advertising in newspapers or sending out mailers warning of the perils of probate. They warn that your survivors are likely to be required to pay huge fees, and that your assets will be eaten up by the cost and expense of probate. In order to avoid probate, you must have a trust, according to the advertisers. So, you are invited to a “seminar” where you may be fed both food and information (and maybe misinformation), and you will be pressured into having a trust done by their company.

The Perils of Being an Agent

What if you find yourself acting as someone’s agent under a financial power of attorney?  Or if you assume the responsibilities as a personal representative (executor) or as a successor trustee?  In all three of these roles, you have fiduciary duties prescribed by the law.  You can now also have very serious criminal and civil penalties for breaching those duties.  Although I rarely see the penalties invoked, for a variety of reasons, I do often see large amounts of money expended in legal fees defending or prosecuting breaches of fiduciary duties.  This article (chapter) will address the duties that apply to all three of these roles – agent under a power of attorney, personal representative in a will, or successor trustee of a trust. Many of the requirements are counter-intuitive.  It is easy to violate the law regarding fiduciary duties, while trying very hard to carry out the intent of the person who appointed you.  But sometimes, what they intended just doesn’t matter.  That intent must be expressed in the proper way, and all too frequently, it is not What is a fiduciary?  A fiduciary is someone who is in a position of trust and confidence to someone else, usually in regard to taking care of money for that other person.  This relationship is considered to be the highest legal and ethical standard of care.  A fiduciary responsibility exists between a trustee, and a beneficiary of a trust, and between an agent and principal of a power of attorney.  The principal is the person who appointed the agent.  The personal representative, also known as the executor, of an estate...

Hospice, Supporting the Terminally Ill and Their Loved Ones

Hospice, as practiced in the United States, is more than a philosophy designed to support physical, psychosocial and spiritual needs of terminally ill patients and their families and significant others, it is a business. According to Medicare,“Hospice is a special way of caring for people who are terminally ill, and for their family. This care includes physical care and counseling. Hospice care is given by a public agency or private company approved by Medicare. It is for all age groups, including children, adults, and the elderly during their final stages of life. The goal of hospice is to care for you and your family, not to cure your illness.”  Among services provided by Medicare, hospice includes medical and support services, such as nursing care, medical social services, doctor services, counseling, homemaker services, and various other types of services.  A team approach is utilized and includes doctors, nurses, home health aides, social workers, counselors and trained volunteers, with most care provided in the patient’s home.  Patients may also have hospice care in a hospice facility, hospital, nursing home, assisted living facility or adult care home. Although the concept has been around for thousands of years, the modern hospice movement has often been attributed to a British nurse turned physician (and also held a degree in social work), Dame Cicely Saunders, who established the St. Christopher’s Hospice in London in 1967.  Dame Cicely assembled a team consisting of physicians, nurses, chaplains, counselors and physical therapists to deliver care to the dying. Hospice began in the United States in New Haven Connecticut.  The Hospice of New Haven was founded by Florence Wald,...

Library Fires and Ethical Wills

There are actually three types of documents referred to as “wills.”  First, is the will of inheritance, often known as the Last Will and Testament.  This will is designed to be effective upon death, and its primary purpose is to direct the final administration of the dead person’s estate and the distribution of their property.  The second type is the Living Will.  The Living Will is usually a statement of what type of care a person wants when they are ill and cannot express their wishes themselves.  Most often, it is effective when the person has a terminal illness, their death is imminent, or they may be in a persistent vegetative state or irreversible coma.  If it appears life-sustaining treatment would only prolong the moment of death, the Living Will indicates whether life-sustaining treatment is desired.  Usually, life-sustaining treatment is defined, and the definition may include things like artificially administered food and fluid, CPR, mechanical ventilation, dialysis, etc. The third type of will is the lesser known Ethical Will.  The Ethical Will is a document that is used to communicate values, beliefs, hopes for the future, advice, life lessons, forgiveness, love, and often personal history.  While your Last Will and Testament tells people what you want them to have, the Ethical Will tells people what you want them to know.  Unlike the other two types of wills, the Ethical Will is not a legal document, but can be of great value and utility, and is useful in preparing to complete the other estate planning legal documents.  When properly done, an Ethical Will can make a huge difference for the...