Medical emergencies happen every day. You never know when a medical crisis could leave you mentally disabled or in a constant vegetative state and unable to make your own medical decisions. This is why you should have a disability plan. One of the most common disability planning devices is an Advance Medical Directive.

Choose a Health Care Agent

If you become incapacitated, this legal document allows you to name a friend or family member to speak with your doctors on your behalf and to make medical choices for you.  Your health care agent will have full access to your medical care and can make real-time decisions on your behalf. When choosing your agent, select a trustworthy person who is good under pressure and will honor your wishes.

Avoid Conservatorship

A conservator or a guardian is a court-appointed and court-supervised individual who makes medical decisions for you.  A conservatorship or guardianship puts all of your medical needs in the hands of the court. Your conservator or guardian may be slowed down by the legal process and therefore may not always be able to make quick decisions. He or she may also not be the person you would think best suited to care for your medical needs. By using an Advance Medical Directive and naming your Health Care Agent, you may avoid this problem.

Share Your Preferences

Having an Advance Medical Directive means your medical wishes will be considered. You should share your medical preferences with your chosen health care agent while you are healthy and mentally stable. You can also create a Living Will to go with your Directive.  Using a Living Will with your Medical Directive allows you to state your preferences on life support and terminal illness treatment. If you don’t want to be on life support or if you want to avoid intense treatments that may do harm to your body, you can notify your health care agent and state your wishes in your Living Will.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

An essential aspect of estate planning is providing for your family members after you are gone. This is especially important if you have minor children. Until your children have reached adulthood they will need someone to care for them and financially provide for their needs.

Name a Guardian

You must choose a guardian for your children in case they are still minors when you and your spouse pass away. If you do not name a guardian, the choice will be left up to a judge. In this case, your children may become wards of the state if no available guardian can be found, or they may become ensued in a heated custody battle if several family members wish to be the caregiver.

As you consider possible guardians look at specific attributes such as age, availability, and lifestyle. Your guardian must be someone who is of a mature age without having health problems that would hinder caregiver duties. If a possible guardian has a busy career or a large family, he or she may not be able to provide the love and time your children need. You may also want to consider your guardian’s marriage status, morals and values, and religious views.  As you take all of these factors into account, create a final list of two to three possible guardian choices. It is best to have one or two back-up guardians in case your first choice should become unavailable.

Leave Funds

If your children are minors when you pass away, they will not be able to directly accept and use the inheritance you wish to leave. If you do not make other arrangements, the chosen guardian may have control of your children’s property and money.

It may be best, however, to create a special trust to manage your children’s inheritances. You can name a different trustee than your chosen guardian if you feel the guardian may not be good with money, or if you would simply like to split the duties between family members.

The trustee can distribute funds on behalf of the minors or to the guardian as needed until your children reach adulthood. Further, you may choose to have the trustee continue to disperse funds over a number of years even once your children are grown. This is an option often chosen when a parent feels early receipt of an inheritance may lead to mismanagement.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

One of the initial steps to creating an estate plan is to evaluate how much your assets are worth and what debts you owe.  The net worth of your estate can help your attorney to decide what level of estate planning you need.  This evaluation will also determine if your family will have to pay estate taxes upon your death.  Evaluating your net worth regularly can give you an idea of how well your finances are doing over time.

Estimate Your Assets

To determine how much you are worth, gauge the value of your personal belongings, real estate and financial holdings.  You can get a basic estimate by guessing, or you may choose to have items appraised. Checking, savings, retirement and investment accounts are easy; you simply need to review your most current statement to find out their current worth.

Determine Your Liabilities

A liability is any debt that you owe and that your estate would have to pay upon your death. This includes car loans, home mortgages, and credit cards. Make a list of all of your debts and determine what the current amount owed is.

Calculate Your Net Worth

To find your net worth, subtract your debts from your assets. This figure can tell you a great deal. For example, if your number is negative, then you owe more money than you are worth. If this is the case, it may be time to reevaluate your spending and see if there is a way to pay off some of your larger debts. Is your net worth large?  Your attorney can help you determine ways, such as Trusts, to protect your assets.

Re-Assess Your Net Worth

It is not only important to understand your net worth, you should evaluate it every two or three years to make sure your assets are not loosing value and that your liabilities are shrinking rather than growing. Recalculating your net worth may help you decide when it is time to up-date your estate plan, to eliminate or reduce any estate tax liability.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

A payable on death (POD) account is any type of bank account that you designate a person to take over upon your death.

Name a “Beneficiary”

In order to make an account payable on death, you must complete a  designation form with your account holder.  It is important to reevaluate these designations each time you up-date your estate plan. If your beneficiary passes away before you, then you will need to name a new beneficiary.

Beneficiary Inherits Account

After your death, your account beneficiary can easily take over the account. He or she will only need to provide a certified copy of your death certificate, and in some states proof that there is no estate or inheritance tax payable in order to take possession of the POD funds.

Tax Liability

Your pay on death beneficiary does not owe income tax on an inherited account. If any income from interest was earned on the account before the takeover, that amount will be reported on your, the decedent’s, final income tax return and estate tax return.

If estate or inheritance taxes are due, your loved one may have to use some POD account funds to help pay this amount. This may depend upon whether or not you have made other provisions in your Last Will and Testament to cover those taxes.

Caution!

A POD option may not be the best choice when you have multiple beneficiaries of your estate plan.  The person named as your POD for your convenience in order to have funds immediately available for your funeral or last medical expenses  may not be willing to share the remaining funds with the other beneficiaries as you intended.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Have you ever considered the possibility that you could someday become mentally disabled or physically in a vegetative state? Not many people consider this, but this could happen at any time. For this reason, a disability plan is a vital part of estate planning, and you should begin your preparation today. Your disability plan will take care of your medical and financial needs in the event that you can no longer make decisions for yourself.

If a doctor should diagnose you as mentally disabled or in a long term vegetative state and you do not have a disability plan, a court of law will have to create a guardianship. The chosen person will be a court-supervised guardian who will make decisions for you.  When you create a disability plan, you can keep the legal system out of your personal affairs and name who you wish to care for your needs.

Medical Needs

There are a variety of ways to prepare for your medical needs in the event of a disability.  A Living Will (Advance Directive) is a common device used to state your desires regarding life support and terminal illness care. This document, however, is limited to only communicating on the issues you mention. If you wish to have an actual person speak for you, then you should consider a Medical  Power of Attorney along with your Advance Directive. These documents will help assure that your wishes will be followed regarding your medical choices while you are incapacitated.

Financial Needs

It is also essential to consider your financial needs. You can use a Durable Power of Attorney to name a financial agent. This person will be able to make financial decisions for you while you are disabled including: paying bills, handling income, and controlling your investments.  All financial acts performed must be with your interest and the interest of your family in mind. This agent will be able to pay for your long term medical bills and care as well.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Although there is more than one co-owner of a property under Joint Tenancy and Tenancy in Common, there are significant differences in the rights and duties assigned to the owners:

• Joint ownership provides equal, unlimited and free access to all the owners of the property concerned. However, the equity in the property is different.   Each owner has equity equal  only to that portion of the property which he or she owns.
• In case of a Joint Tenancy, none of the co-owners can sell or mortgage the property without the permission of the other co-owners. A property held under Joint Tenancy can be sold or mortgaged only if all the owners agree. However, in case of tenancy in common, any of the owners can sell or mortgage his or her share without taking the permission of the remaining owners.
• In case a co-owner in a Joint Tenancy dies, the property concerned automatically passes to the remaining co-owners. The heirs at law of the deceased owner do not receive anything and have no right to the asset concerned. The surviving owners meanwhile will need to remove the deceased owner’s name from the asset. However, in case of Tenancy in Common, if one of the co-owners dies, his or her share of the property gets transferred to beneficiaries or legal heirs (in case there is no Will).

Tenancy in Common is advisable if all the owners have made Wills. Otherwise, in case of the death of a co-owner, interest in the real estate may pass  to unintended persons. Disagreements between the new owner and the earlier owners regarding the sale of the property concerned can result in lengthy court battles.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Guardianship  is a legal process where a court appoints a guardian and provides that individual with the legal power to make decisions for and handle the financial affairs of a person who is incapacitated or is a minor. The person appointed by the court is called a Guardian; the incapacitated person or the minor is called the Ward.

Setting up a guardianship starts with determining whether a person is legally incapable of handling his or her own affairs. Although the specific procedure for determining whether a person is incapable of making his or her own decisions differs from state to state, certain basic steps are common in all states:

• Family, friends, or financial advisors file a petition questioning the mental state of a person who is alleged to be incapacitated
• The court instructs third parties to analyze the mental capacity of the individual concerned
• An attorney is appointed to represent the individual concerned
• Experts evaluate the individual concerned to check mental state and judge his/her ability to make independent financial decisions
• Reports are filed regarding about the individual’s mental and physical condition
• The court reviews the reports and submits copies to the individual’s attorney
• The court hears arguments for and against the appointment of a guardian, if necessary
• The judge makes the decision regarding the concerned person’s state of mind and level of incapacity
• The judge appoints an appropriate guardian or conservator, if necessary, who is capable of handling specified responsibilities on behalf of the individual concerned

The appointed guardian is required to make periodic reports to the court and in many cases is also required to purchase a surety bond, a type of insurance policy protecting the estate of the ward.  The costs and expenses incurred by the guardian or the conservator to carry out his or her duties are paid by the incapacitated person’s estate.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

If you have Medicare, you have rights.  You have the right to receive medical care, services, procedures and items that are medically necessary.  Should Medicare deny coverage for anything that you or a physician feels is medically necessary, there is an appeals process.  It’s a fairly quick and painless procedure, and 80%-90% of those appealing Medicare decisions end up winning on appeal.

The specific Medicare appeals process is dependent upon the type of Medicare coverage that the patient has:

Original Medicare

Your appeal rights are on the back of the Explanation of Medicare Benefits or Medicare Summary Notice that is mailed to you from a company that handles bills for Medicare.  Follow the instructions and make sure to appeal immediately.

Managed Care Medicare

If you are in a Medicare managed care plan, you have the same rights to an appeal as with original Medicare. If you think your health could be seriously harmed by waiting for a decision regarding a service, ask the plan for a fast decision. The plan must answer your request within 72 hours.

The Medicare managed care plan must tell you in writing how to appeal.  If the plan denies your appeal, you may have an independent organization that works for Medicare review the decision.

Going up the Ladder

If Medicare appeals are denied, and you and your physician feel that the care, procedure or item is medically necessary, there are several levels of the appeals process for denials;

• Redetermination
• Reconsideration
• Administrative Law Judge Hearing
• Medicare Appeals Council (MAC)
• Federal District Court

Make sure to follow the instructions for the appeals process carefully and within the proper time limits.  Keep copies of all documents and make notes of all telephone conversations.  With a little determination and good recordkeeping, you may very well prevail in the Medicare appeals process.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

A Trust Amendment revises the conditions and terms of a Trust.  Trust Amendments are only made if certain provisions of a Trust agreement must be changed or modified. All remaining provisions of the agreement remain unchanged in this case. Minor changes may include updating a beneficiary’s name, changes due to marriage or divorce, adding or deleting certain simple bequests, or naming a different trustee.

In contrast, a Trust Restatement is made if the basic goals of forming the Trust have changed or if all or main provisions of the Trust agreement need to be changed. Changes in the number of beneficiaries, changes in the way in which the funds or assets are to be distributed, or compliance with new laws are a few of the significant changes that may warrant a restatement.

A Trust agreement is also restated if the Trust has already been amended several times and consolidating all changes in a clear manner will help provide greater clarity. A restatement can help avoid confusion when directions contained in the Trust are implemented.  Restatement of a trust agreement may also make sense if federal and state estate tax laws change, or new administration laws are enacted.

Important Points about Amendment and Restatement of Trusts

• There is no specific rule regarding when you should opt for a restatement or how many times a trust can be amended before it needs to be restated.  Get the advice of an experienced attorney.
• While an amendment makes sense for minor changes, a restatement may be essential if major changes are made.
• The restated document completely supersedes the original agreement.  In this case, the name and date of the trust remain the same and only the content must be changed.
• A Trust amendment document must be signed and formalized, as is the case with the original document.
• Handwritten changes may not be acceptable in some states or might be considered invalid.

Each time a Trust agreement is changed, the accompanying Pourover Wills should be reviewed as well.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

For many families, choosing a nursing home or long term care facility can be a daunting task. And if the loved one to be placed in the home is ill and cannot participate in the choice, a social worker from a hospital may be making the recommendation of which facility to use. In stressful times, families often rely on “experts” to make the choice for them. But with a little pre-planning, the transition into a nursing home can decrease stress and families will feel more secure in their choice.

Look at the Miles

One of the most basic things to consider is distance. How far is the nearest relative? You’ll want to have someone who can look in on the loved one on a regular basis, so this person will need to be in close proximity. Emergencies happen. Items from the loved one’s home may need to be brought in. In the first few days after admission to the home, loved ones may be called upon a few times until everything is settled.

On the Outside

 After a few facilities have been identified, site visits are in order. The on-site information gathering starts in the parking lot. What does the outside look like? Any paint peeling? Are the grounds well-maintained? Does the building look well-maintained? Can you see an outside enclosed courtyard for the residents? This will tell you the facility wants to make a good impression and that they are willing to spend the money to do it.

On the Inside

When you cross the threshold of the facility, make sure you had to be buzzed in. The front door should be locked at all times in order to prevent residents from leaving unless of course, the facility is an assisted living facility.

What do you smell? Literally, sniff the air. Are there any unusual odors or bad smells wafting through the hallway? Are there many residents crying out? Do the residents appear happy? Are there any activities going on? Most often there is a large calendar in the lobby of the facility with the scheduled monthly activities listed. There should be several activities per day, preferably one at least every two hours. Look around at the décor. Is it warm and inviting or cold-looking and sterile? Does it make you comfortable being there?

Staff

Notice how the staff responds to you. Are they smiling, maybe laughing with each other? How are their interactions with the residents? Are residents simply parked in front of the TV or is the staff openly trying to engage them in conversation or activities? Look at the residents clothing and faces. Are they clean?

Of course, these are just a few of the things to consider when searching for a nursing home or long-term care facility for a loved one. For more assistance, you should consult a qualified elder law attorney.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.