THREE CRITICAL STEPS YOU NEED TO TAKE
By Attorney Bob Ross and Attorney Jane Seusy, Ross Estate Planning
We are living in very challenging times. The Covid-19 has attacked the whole world with a vengeance, putting life in jeopardy. The longest running bull market has just lost one-third of its value. What a challenge!
Are you ready if an emergency arises in your family?
If you do not spend the time and money now, your family will spend much more when you are gone or incapacitated. Set aside a specific time right now. Allow me to suggest three (3) critical steps you need to take right now, presented in four installments – three critical things you need to do now and a bonus tip!
FIRST IT IS CRITICAL THAT YOU GET ORGANIZED
Organize your information and your advisors. List your personal information, personal advisors, accounts, investments, and passwords.
Don’t leave your family scrambling. And don’t assume that they will figure it out. Make sure your loved ones know exactly where this information is and how to access it. Write out any additional instructions on how to reach these accounts and investments.
Do those important to you know where your financial accounts are located, how to log onto your accounts online or in which bank branch your safety deposit box is located? All sorts of personal information might be very difficult to find in the event of your incapacity or death. Unless your child is Sherlock Holmes, it’s a good idea to let them all know where these important documents and items can be found. Don’t assume that your spouse knows what you know or is comfortable reaching out to your advisors. Review the lists of accounts and important people with your loved ones so they can ask questions now.
How do you get organized?
We are in the midst of a very unusual state of flux. Perhaps you have more time on your hands and it is a perfect time to get organized. Perhaps you have less time and need to reach out to family or advisors for help getting started. But we are also living through a time when sudden illness is a real threat. It is not morbid to take steps to get organized, it is preparedness. And it is peace of mind for both you and your loved ones.
Organization is the first step we always preach to clients. As part of that process, it makes sense to review your estate plan – your powers of attorney for financial matters, your health care directives, your will or trust. This review leads us to your second critical step:
SECOND, IT IS CRTICAL THAT YOUR GENERAL DURABLE POWER OF ATTORNEY BE CURRENT
Your General Durable Power of Attorney (sometimes referred to as a “financial power of attorney) is the most important document in your plan. If it is more than three years old, it likely does not address new issues, such as virtual currency or on-line access to accounts and information.
If you become incapacitated and don’t have a valid durable power of attorney that names someone who can act for you in matters that do not concern health care decisions (ie, write checks, pays bills and manage your financial and legal affairs, gain access to your on-line accounts) OR, if no one can find the Power of Attorney you once signed, the alternative is a court-ordered guardianship. Not only is court-ordered guardianship difficult on your loved ones, it is also expensive and time-consuming. If you think one lawyer is expensive wait until you need two, and a doctor.
I Have the State Authorized Power of Attorney. Believe it or not, there are vast differences between differently-drafted Powers of Attorney. The statutory form and other easily downloadable versions are very general, and at the same time, very restrictive. Do you understand what your Power of Attorney provides? Just as importantly, do you understand what it prohibits? And most importantly, do you understand when it works?
If your Power of Attorney is not prepared by an experienced estate planning attorney, it is very possible it does not empower your agent with some very important abilities. Does it address access to digital data? Does it allow for your agent to sign and file your tax return? Does it allow your agent to do advanced estate planning for you? If your Power of Attorney is not prepared by an experienced Elder Law Attorney it likely will be useless to help with your long term care needs, such as qualifying you for assistance.
SOMETIMES a limited power of attorney is important. For instance, if you do not have a trusted family member, friend or professional with whom you are comfortable granting such power. But if you are not knowledgeable as to what you are and are not enabling your agent to do, it is difficult to address safeguards and alternatives that are also available. If no experienced advisor has identified potential gaps in your power of attorney, you will not know what other provisions you should have included – until it is too late.
Who Should I Appoint? Be careful as this document grants very significant power and you want to choose those folks that you trust, and are savvy in handling financial affairs. Remember that you can appoint more than one person to be empowered at the same time, requiring either that they act jointly or permitting any one to act independently. If your spouse is not experienced in financial affairs, consider appointing a Co-Agent to act with him or her so that both can stay informed but your spouse is not overwhelmed. If you have several children you trust, provided they can communicate well there is no restriction on appointing more than one of them to act. Do not limit yourself to family members. If you fear that these sorts of matters may cause division amongst your loved ones, consider appointing a professional Agent, either from your bank or financial institution or from a local company that provides trained individuals to act as your Agent. Additionally, modern technology is such that distance is not as much of a consideration in choosing your Agent. A trusted family member or friend who does not live nearby may still be perfectly able to act for you without traveling to your location.
Don’t forget to tell your Agent that you are entrusting them with this position! “Surprise, you’re my Power of Attorney” is not the way your Agent should find out they are included in your plans. Discuss your goals, holdings, plans and desires with the person or persons you are appointing. Be sure they know where to find a copy of the Power of Attorney, along with the lists of advisors and accounts you prepared when you GOT ORGANIZED. You don’t have to share actual account values before you are comfortable doing so, but you must be sure they know where to get that information when they need it.
Without a current, well prepared General Durable Power of Attorney, you handicap your loved ones when you are incapacitated. Children and spouses are not AUTOMATICALLY granted access to accounts or information simply by their status. You MUST empower them. In the absence of that power, bills may go unpaid, penalties may accrue, and chances to protect your estate from being liquidated to pay for care may be lost or delayed.
While a General Durable Power of Attorney permits an Agent to act for you in financial and legal affairs, Health Care Directives list who can be included in disclosure of medical information, who can actually make medical decisions with and for you, and what specific medical decisions you desire in certain circumstances. Sometimes all of these elements are included in a Health Care Power of Attorney, sometimes they are separated into a HIPAA Consent (who has access), a Health Care Power of Attorney (who can make decisions), and a Living Will (specific directions for specific situations). As you GET ORGANIZED, and UPDATE YOUR GENERAL DURABLE POWER OF ATTORNEY, the third critical action you should take is to UPDATE YOUR HEALTH CARE DIRECTIVES.
THIRD, IT IS CRTICAL THAT YOU UPDATE YOUR HEALTH CARE DIRECTIVES.
Why is it so important that your health care directives be documented and current? First, it allows you to maintain control of your medical decisions. As I said in my last article about General Durable Powers of Attorney, your spouse and your children are not AUTOMATICALLY empowered to make health care decisions for you if you are unable to do so yourself.
Unless you wish to become the next Terri Schiavo, you should strongly consider signing a new HIPAA consent, Health Care Power of Attorney and Living Will. You may remember the St. Petersburg, Florida woman who was on life support for 15 years. Schaivo’s court case between her husband (who insisted that she would not have wanted to be kept alive artificially) and her parents (who argued she wasn’t in a persistent vegetative state and should continue to be sustained by artificial means) – resulted in a political and media circus involving the United States Congress and the Supreme Court. I don’t know about you, but one of my lifetime goals does not include having my private health care matters being debated by our esteemed congressmen and senators. Nor do I want to subject my loved ones to the agonizing decisions about my continued survival without some guidance from me.
Who Should I Appoint? I don’t know if your kids are like mine. They were all raised under the same roof…how did they all turn out so different? Not everyone is willing or able to make tough medical decisions. It is not as important that the person you appoint be knowledgeable about medical issues as it is that they be (1) available and (2) willing to put your wishes and beliefs above their own.
“Available” is not always geographically limited. With Skype and Facetime and other mobile access tools, a trusted loved one can be included in discussing your health care decisions with doctors and nurses without being physically at your side.
“Willing to put your wishes and beliefs above their own” assumes that you have expressed your wishes and beliefs to the person you are asking to act for you. It also involves trusting them to advocate for you in place of you to insist that your choices are followed and your treatments follow your desired course. It is also vital that you share your wishes and beliefs with your doctors – the professionals who will be helping and guiding your chosen agent and loved ones.
We also strongly suggest that you document your desires. Many online tools are available to walk you through the types of decisions you may once ask your health care agent to make so that you can educate them as to your preferences. Documentation not only assists your agent in making decisions but also provides them with proof that you considered your options and expressed your opinions while you were still able to do so.
Organ donation is an example of a very personal choice that differs for many people. It is also an example of a decision that must be made quickly by your health care agent when the time comes. At a time when emotions are running high and shock may affect your loved ones’ ability to process information, your documented preferences can make a traumatic situation easier to handle.
Unlike General Durable Powers of Attorney that are used to manage non-medical areas of your life, Health Care Powers of Attorney must name only one person at a time as the Agent authorized to make your decisions. But you can name multiple alternates in one or more agents is unable or unwilling to act. You cannot name your health care provider. As with professional trustees and financial agents, there are professional health care agents available to name if you have no close family or friends.
Where Should I Store My Health Care Directives? We believe that health care directives should be given out like candy! Make sure your named agents each have a copy. Be sure your doctor and local hospital of choice have a copy. Keep a copy in the glove compartment of your car. Pack a copy in your suitcase when you travel. Subscribe to a service such as LegalVault which will store your health care directives for you and provide you with a card to carry which alerts any medical provider in the world access to the actual documents in emergency situations.
Never, ever store your health care directives in your safety deposit box. Emergencies never seem to happen during banking hours. What would you do now with all bank lobbies closed?? How would you get them when needed?? If you feel you need to protect an original or a copy in a safe, be sure your agents know how to access them in an emergency.
Include with a copy of your directives all contact information for your agents so emergency responders and doctors know who to contact. Be sure your agent also has a list of current prescriptions and dosages so they can inform doctors and nurses who may not know your history.
Health care decisions are exceptionally personal and involved. Emotions run high in medical emergencies. Before your loved ones need to act for you financially, they may well need to act for you in the medical arena. In our current state of affairs, indicating who can make decisions and what those decisions should be, particularly with regard to such actions as ventilators and prolonged artificial life, your wishes as to who can decide and what they should consider are vital. Not only do health care directives equip your loved ones to act and advocate for you, they also minimize disagreements and provide guidance at a time when your loved ones need your input most.
AS A BONUS, PREPARE A GRAB-AND-GO FOLDER.
In the midst of an emergency, medical or otherwise, having information readily available is a fantastic gift for you and your loved ones. Think of the last time you checked in at a hospital – what information did they require? If you were unable to answer questions, would your loved ones be able to? Think of what information you would miss if you were not able to get to your home or if your home was destroyed by fire, flood or tornado. Could you recreate critical data easily?
Medical Emergency Grab-and-Go: I suggest you prepare two folders with the following information, keep one at home or with you when you travel and give one to your health care agent who does not live with you:
Emergency Replacement Grab-and-Go: I suggest you prepare two folders with the following information, keep one at home and give the other to either your health care agent or your named Power of Attorney who does not live with you.
There is dispute as to whether you should include a copy of your social security card in this folder, as including that with the items listed above is everything a thief needs to steal your identity. The same discussions are had regarding passwords. A trusted cloud-based storage company may be a solution, as is a partially complete folder for each of two different people. At the very least, someone other than you needs to know how to access copies of these items and the ability to reproduce them if your home is destroyed is invaluable.
Unless you have experienced it yourself, you cannot imagine the amount of information that is necessary to complete a Medicaid application, finalize a funeral or handle an estate after a death. The more you can arm your loved ones with information, the more you make a difficult situation more manageable.
Remember that storing these things in a safety deposit box presumes that others have a spare key, know where the box is located and are authorized to access because you have completed the necessary forms at the bank. Storing them in a safe presumes others can access the place where the safe is located and know how to open it. In our digital world, scanning all of this information onto one or more portable devices like a jump drive provides easy access and compact storage. Back up copies of your home computer or laptop is also highly recommended.
Be ready for any emergency. Organize. Update. Copy. And call us at Ross Estate Planning if we can help with anything!