California Estate Planning Practice Blog

Ready for 2013? How About Updating Your Estate Plan?

Thinking about updating your estate plan? Here are some key numbers that were finalized from the American Taxpayer Relief Act passed into law January 2, 2013:

Estate and Gift Tax Lifetime Exemption set a 5 million indexed for inflation: 2013 Gift and Estate Exemption is $5,250,000.

The annual gift tax exclusion indexed for inflation is $14,000 for 2013.

Estate plans can last forever, but they are not always quite timeless. If you have changes in your family -- let's review and update your estate plan.

*Did you have a marriage, divorce or birth in your immediate family?

*Do you have a current Advance Healthcare Directive that has standard waivers and releases to ensure that your loved ones can access your medical information?

*Is your power of attorney comprehensive enough to cover all the what ifs?

The best time to update your estate plan is when you are too busy to think about it. It means you are alive and well. We need our estate planning clients to be alive and well at the time of execution.

Contact your local estate planning attorney today and schedule a review.

Are Your Children Just Turning 18?

When your child turns 18 years of age, he or she is a bona-fide adult.  This means that Mom or Dad cannot step in and make medical decisions for their newly minted adult children.

I've written about this before, but your children who are just turning 18 really need to have an Advance Health Care Directive in place.  This is reinforced by Jane Bryant Quinn's latest essay on "As Kids Grow, So Do Risks" in this week's issue of Newsweek magazine.

Jane Bryant Quinn writes:

"Did you know that you lose control over your child's medical decisions when he reaches 18? He's entirely in charge. If he can't choose (say, he's in a coma), the doctors will stabilize him. After that, it all depends. ... But what if the parents are separated and disagree? ... To clear the path, your 18-year-old should put two decisions in writing. First, how he wants to be treated if he's in a permanent vegetative state or terminally ill. ... And second, who should make health-care decisions if he's unable to speak for himself ... Ideally, these documents will be drawn up by a lawyer..."

In California, only one document is needed for medical decision making: an Advance Health Care Directive.

This document allows you to nominate who should make medical decisions for you in the event you are unable to do so and you can also state your wishes for end of life decisions including life support, organ donation, authorizing an autopsy and making your choice known for disposition of your remains.

Kind of a gruesome topic to talk to your 18 year old about, but a necessary one especially if your child still wants Mom or Dad to handle his or her affairs until they get a bit older or get married.

Estate Planning Documents A La Carte?

Estate planning when it is all set and done is often a variety of documents prepared in accordance to your wishes and financial situation that work in conjunction with each other to accomplish a variety of objectives.

Sometimes you may only need one or two documents prepared as a stop-gap measure before you are able to deal with the larger estate planning concerns for your family.

Obviously, the largest barrier to estate planning for most Americans involves money. Most Americans don't have enough money in their checking account to write a check for a grand or two to an attorney for estate planning documents without budgeting for it.

One way to get around this is to ask your attorney if he or she would be willing to prepare estate planning documents a la carte.

Here are some ways this can work:

• You are leaving for a two week trip to Europe. You want to name someone to manage your financial affairs while you are out of the country. And, better yet, you want this power to be effective for only the month of October. A Durable Power of Attorney with an expiration date of midnight, October 31, 2006, would accomplish this. [An expiration date of midnight, October 31 would truly be a witching hour.]
  
• You find yourself communicating with a loved one's doctor for a recent medical condition. Your loved one is having a hard time understanding their treatment options and want you to get involved. Your loved one can appoint you as their agent in their Advance Health Care Directive. This Advance Health Care Directive can be effective immediately.
  
• You have a minor child. You and your spouse are worried about who would be named guardian for your minor child if something happens to you and your spouse at the same time. You can draft a Will with testamentary trust provisions to nominate guardians for your child and put it place a trust to be formed if you and your spouse passed away.

One document alone does not make a proper estate plan, but it is important to realize that each document has different objectives and can be prepared independently.

Most attorneys charge a flat fee to prepare these kinds of documents. The flat fee is usually equivalent to one hour of the attorney's normal hourly rate.

Religion and Your Medical Directive.

Advance Health Care Directives are very flexible documents. In it, you can state whatever your wishes are for end-of-life care including how you feel about nutrition, hydration and anything else related to it as it may relate to your religious preferences.  You can also state your wishes for funeral and memorial services including if you wish to be buried or cremated.

If you have a strong religious preference and wish that your religious teachings or beliefs be incorporated in your Advance Health Care Directive, you can. 

It is easy to draft such Directives to be in compliance with your particular religion or denomination.

As an example, Catholics, in general, have strong feelings about these kinds of things. For example, a woman of childbearing age may want to add in her directive: If I should be pregnant, and that condition is known to my physician, then every means should be taken to preserve the life of my unborn child, including the continuation of life prolonging procedures. Some may want to add special directions such as: If my death is imminent, and I am unable or unwilling to take food naturally, then I would not want artificial nutrition or hydration used to prolong my life. Excerpted from Cultural Catholic.

Just ask your estate planning attorney to incorporate what's important to you in your Directive.

Pregnant? Consider Changing Your Advance Health Care Directive for Heroic Measures.

As I tell my clients, your Advance Health Care Directive is a very flexible document. Put in it what you wish when it comes to medical decisions, end of life choices and your wishes for funeral/burial/memorial plans.

Shelley Mactyre, a practicing estate planning attorney in Oregon, posts a great reminder in her blog that your wishes regarding health care decision making can change if you are pregnant.

If you are expecting, you can change your Advance Health Care Directive to include heroic measures to keep you alive so you can keep your baby alive.

You can create a new Advance Health Care Directive that's effective for the duration of your pregnancy and then revert back to your existing Directive with your "let's pull the plug if death is imminent" instructions.

If you prepare a new Directive, be sure to give a copy to your entire medical team including your hospital. You might as well keep a copy with your birth plan in case you wind up being hospitalized somewhere else in the midst of your pregnancy unexpectedly.

It's Amazing. Others Watch Others Die and Still Won't Do It.

I was just thinking this morning that many of us have watched horror stories unfold before their very own eyes with respect to end of life care for their loved ones. And they know intimately the value of a properly prepared Advance Health Care Directive. Yet, they still do nothing. They sit idly. Time to stop sitting idly and have one prepared for you in accordance to your wishes.

DMV Medical Information Card

The California Department of Motor Vehicles can issue you a medical information card upon your request if you visit a branch in person.

It is an adhesive backed card with fill in the blanks for your blood type, allergies, past or present medical problems, medications and information on how to reach your doctor.

It is a nice companion to your driver's license if you are worried about getting appropriate medical care in the event of an emergency.

Give a Copy of Your Advance Health Care Directive to Your Doctor.

You have an executed Advance Health Care Directive. Terrific!

Next question, have you given a copy of this Directive to your doctors?

If not, you have work to do. More specifically, find your Directive, copy it and mail a copy to your doctor for inclusion in your medical file.

You do not want to find yourself in a situation where death is imminent (you are terminal, in a coma or persistent vegetative state) and your loved ones refuse to turn over your Directive to the doctors currently caring for you so they can honor your wishes. If you feel very strongly about your wishes regarding end-of-life, please be sure your doctor has a copy of your Directive.

Claustrophobic and Hate Fires? Let Your Agent Decide.

One option with respect to burial or cremation -- is that you can allow your agent to make the decision for you when the time comes.

Many of my clients have strong feelings when it comes to burial and cremation. When I ask their preferences for completing their estate planning documents, they have their answer ready usually followed by a short explanation.

Today, my client presented an interesting paradox. My client is claustrophobic so does not want to be buried. My client is also fearful of fires so does not want to be cremated. I never thought of it that way before. Instead, I was told to put in the Advance Health Care Directive that the designated health care agent can decide.

I thought it was an interesting perspective.

On a personal note, I really do not like fires. After watching Artie Bucco, the owner of Nuovo Vesuvio, get his hand burned in a pot of spaghetti sauce last night on Sopranos -- I've recommitted to my own decision to be buried. I think it was Tony who said last night that his skin came off like a glove. Gah.

Pearls Before Swine Funnies on Organ Donation.

Organ donation must be on everyone's mind these days.

Stephan Pastis from Santa Rosa, California draws Pearls Before Swine, which is a hilariously funny comic strip. Today, he drew a great strip on organ donation. Check out April 22's strip... yeah, it's funny.

Factoid: did you know that Stephan Pastis is or was an insurance defense attorney? Read this 2005 article from the San Francisco Chronicle.

Click here for a transcript of Pastis's live online discussion at Washingtonpost.com in 2002.