Randall J. Levesque, Estate Planning & Elderlaw Attorney

Estate Planning

Estate Planning includes death and disability planning. In the event of a disability you are left with limited options. Probate Court is often the only option available when an accident or illness leads to disability if you don’t have an Estate Plan. The first step when protecting yourself is making the decision to have a properly drafted durable power of attorney document for financial decision making and healthcare decision making. These surrogate decision-making documents are often the most important building blocks of your personalized legal strategy and are absolutely necessary to avoid the needless expense and time of Probate Court. Next, you need to understand whether a living trust is necessary for your plan. With a properly drafted living trust, you will know that your resources are going to be there for you, even if you are no longer able to manage your own affairs.

Regardless of the size of the estate, if you are an adult, there is planning that needs to be done. You have the opportunity to decide to whom your estate passes at your death, how it will be received, and when it will be received.

A few frequently asked questions?

  • Why do I need a plan, I don’t have an estate, or do I?
  • Why do the doctors always ask for a HIPAA waiver?
  • What are the benefits of a Durable Power of Attorney?
  • Why do I need a health-care directive, my spouse knows what to do?

How to plan to avoid Probate Court?

  • Why wouldn’t I want to go to Probate Court?
  • My Will stays out of Probate Court, right?
  • Will substitutes like POD and TOD are enough?
  • How much does it cost to go to Probate Court?

Key Estate Planning Terms

Probate (proh-bayt), 1. The judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court. 2. Loosely, a personal representative’s actions in handling a decedent’s estate. 3. Loosely, all the subjects over which probate courts have jurisdiction.

Probatevb1. To admit (a will) to proof. 2. To administer (a decedent’s estate).

Grantor Trust. (also known as a Revocable Living Trust) A trust in which the settlor retains control over the trust property or its income to such an extent that the settlor is taxed on the trust’s income. Note: generally, includes a right to amend and revoke.

Irrevocable Trust. A trust that cannot be terminated by the settlor once it is created. In most states, a trust will be deemed irrevocable unless the settlor specifies otherwise. Note: generally, can be taxable for income and estate tax purposes as either a grantor trust or a non-grantor trust.

Trustee. Every trust names an initial Trustee and possible a co-trustee to manage the trust. Following are some duties of trustees. The list is not exhaustive, but provides limited information regarding the fiduciary duties as Trustee.

  • To administer the trust in accordance with the trust instrument and the laws of the state of controlling law.
  • To impartially administer the trust for the benefit of all trust beneficiaries, both current and remainder beneficiaries.
  • To protect and preserve the assets of the trust estate.
  • To take reasonable and proper care to prudently manage trust funds.
  • To avoid conflicts of interest, like entering into transactions with trust property that will result in a profit to you personally.

Successor Trustee. A person nominated to fullfil the role of the initial trustee.

Last Will. A document created to direct assets to a particular beneficiary or group of beneficiaries. If there are minor children, then it nominates a person(s) to serve as the guardian for the care and custody of that child(ren).

Testamentary Trust. A trust created through the Will and accepted by the Probate Court that nominates a trustee to hold the assets in Trust for a beneficiary; usually a minor.

Personal Representative. After a person dies, and it is determined that there were assets held in the deceased person’s name alone, a Probate must be opened. This mean that a petition is filed with the Probate Court, and a personal representative (also referred to as an Executor or Administrator) is appointed to oversee the winding up of the decedent’s estate. The job duties of the personal representative include, but are not limited to creating an inventory of the estate and collecting all of the assets, manage the estate during administration, collect payments and defend the estate against creditors, and ultimately to distribute the remaining estate assets to the beneficiaries.

Guardian and Conservator. A guardian and conservator is a person(s) named to be responsible for an incapacitated person and minors (under age 18). The appointed guardian(s) is responsible for the custody and care and some instances the finances of those individuals. If one parent is alive and competent, that parent is the natural guardian of the child. However, if both parents are deceased, then the Court looks to the Last Wills for the guardianship and conservatorship nominations.  It is important to note, when there is a Trust created for the minor or incapacitated person, then there may not be a need for a conservatorship, only a guardianship.

Health Care and Financial Powers. The Healthcare Durable Power of Attorney and Living Will documents provide you with your fundamental right to control your own medical care.  We recommend that copies be given to your physicians, family members, and friends.  In the event you are admitted to a health care facility, a copy should be given to the health care provider to become part of your medical chart.  You should not sign other forms provided by the hospital or any other medical provider.  By doing so you may negate the planning you have done.

The General Durable Power of Attorney provides that your Attorney-in-Fact can act on your behalf when making financial decisions.

Healthcare Durable Power of Attorney. The Healthcare Durable Power of Attorney allows you to name a person (your Healthcare Agent) and an alternate to make medical decisions for you if you become incapacitated.  When your Healthcare Agent is called upon, he or she is entitled to consult with health care providers for informed consent, to have access to appropriate clinical records, and to apply for benefits such as Medicare and Medicaid.

It is important to discuss your wishes about future medical decisions, life support systems, and artificial nutrition and hydration with your Healthcare Agent and alternate Healthcare Agent.  You need to inform them of the location of the original copy of your Healthcare Durable Power of Attorney.  You should also speak with your doctor and other health care providers about your wishes.  Upon entering the hospital or other health care facility, you or your Healthcare Agent will need to provide copies of your Healthcare Durable Power of Attorney to the admissions staff.

Living Will “advanced directive”. The Living Will specifically limits the scope of treatment, including the withholding of tubes for food and water, if such treatment is futile and against your wishes.  It limits the scope of medical treatment if you become comatose, suffer from a chronic terminal illness, or are in a persistent vegetative state.  It is very important for you to speak with your doctor concerning your wishes regarding life-prolonging procedures.

If you are living in an assisted living facility or nursing home, you need to ask them about their policy in regard to Living Wills and Do Not Resuscitate Orders (DNRs) and plan accordingly.

HIPAA Waiver and Release. Congress passed a law entitled the Health Insurance Portability and Accountability Act of 1996 (HIPAA) that limits use, disclosure, or release of health information. This authorization relates to the disclosure and release of protected health information to allow those persons named under the release to receive the health information to discuss with, and obtain advice from, others to facilitate medical decisions regarding health care. It does not authorize the designated person to condition or limit treatment.

General Financial Durable Power of Attorney. A General Financial Durable Power of Attorney gives the person you choose (your Attorney-in-Fact) the legal authority to handle all of your financial matters.  This authority may be limited in any way you wish.  The General Durable Power of Attorney is effective once signed and remains in effect until you die or choose to revoke it.

If you become ill, your Attorney-in-Fact will be able to manage your financial affairs.  There should be no need for a court to declare you incompetent or to appoint someone to manage your financial affairs.  But if you are declared incompetent by a court, then the court’s authority could override that of the General Durable Power of Attorney.

The powers granted under your General Durable Power of Attorney are extremely broad.  The person selected must be trustworthy.  We recommend that you name an additional Attorney-in-Fact in case your first choice is unable or unwilling to act.

Third parties (such as banks and securities brokers) may be liable for damages, including attorney fees, if they unreasonably refuse to accept the General Durable Power of Attorney.