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Aretha: A Will or Not a Will?

Screen Shot 2019-07-26 at 11.27.48 AMBehold a real-life cautionary tale of the hazards of no Will or a poorly drafted Will. When soul and R&B icon Aretha Franklin died last year, her family though she had no Will.

Ms. Franklin left behind four sons, but no guidance on how to distribute her reported $80 million estate. Her sons filed paperwork in Michigan stating that she died intestate – that is, without a Will.

They nominated Franklin’s niece to serve as the personal representative of the estate. Under Michigan law, Franklin’s assets and income would be divided equally among her four sons

That structure, and the peace it preserved within the family, has been upended by the discovery in May 2019 of a series of handwritten “Wills” that could significantly alter the estate, replace the executor, and change each son’s inheritance. The scrawled documents – found in a locked cabinet and under the sofa cushions of Franklin’s home in suburban Detroit – were recently submitted to a probate judge to determine whether they qualify as valid Wills.

The possibility of wholesale changes to the estate has already stirred divisions among Ms. Franklin’s sons, with two of them supporting the most recent Will, dated in 2014, and two opposing it. Under that Will, the distributions to the sons are not equal. One son with special needs appears to have been left out of any inheritance.

Among the problems with the newly discovered documents is that they are handwritten, with things scratched out and blank spaces, in some places nearly illegible handwriting, and a lack of clarity about her wishes for the distribution and management of a number of her assets, such as income and royalties from her music and other business interests.

The case again has highlighted the complications faced by the estates of celebrities who leave no will. (Remember Prince?) Although few of us have an estate as complicated as hers, the problems created by a poorly drafted Will are the same for all of us. It is unclear why Ms. Franklin chose to hand-write her Wills; her lawyers say they frequently urged her to plan her estate; one even went so far as to draft Wills and Trusts for her to consider, but she was not interested.

Even if the judge determines that her 2014 Will is valid, there is still much that can be disputed, both in interpreting the terms of the Will, and about what is not mentioned in the Will. Unless the sons can all come to an agreement on the terms of the Will (which might include altering some of the terms), a judge or jury will have to decide its terms, and her intent. To get an idea of how muddled the Wills are, google “Aretha Franklin wills”; most of the news articles have excerpts from the 2014 Will, and it is a hot mess!

What is the take-away for those of us who do not have such complex estates? It is the same as it is for Aretha’s estate; work with a qualified elder law or estate planning attorney to put in place estate planning documents which lay out your wishes clearly and unambiguously, and which can even offer protection of assets.

Hand-written Wills, although perfectly legal, are often worse than no Will, because they often do not consider or account for all the assets, or deal with them in a clear, coherent manner, and they can give rise to significant and costly litigation, not to mention often unintended ill-will within the family.

To get your estate planning taken care of join us for one of our upcoming workshops.  Just click here to find the day and time that works best for you and RSVP.

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What is a POLST, and do I need one?

Doctor-80445_640Attorneys, including our office, are constantly educating the public on the importance of having a Health Care Directive consisting of a Health Care Power of Attorney and a Living Will, also known as an Advance Directive.

Although advance directives provide general guidance on what type of care a patient desires, they are not always followed. 

The Physician Orders for Life-Sustaining Treatment (POLST) is a complimentary document which has been implemented in a number of states, including Pennsylvania. The POLST uses a standardized medical order form to indicate which types of life-sustaining treatment a seriously ill patient wants or doesn’t want if his or her condition worsens.

The POLST is designed to help primary care physicians, nurse practitioners, physician assistants, long-term care facilities, hospices, home health agencies, emergency medical services, and emergency physicians: 

  • promote a person’s autonomy by documenting a person’s treatment preferences and coordinating these with medical orders; 
  • enhance the HIPAA-compliant transfer of patient records between health care professionals and health care settings; 
  • clarify treatment intentions and minimize confusion regarding a person’s treatment preferences;
  • reduce repetitive activities in complying with the Patient Self Determination Act; and
  • facilitate appropriate treatment by emergency medicine and EMS personnel.

The POLST is not intended to replace an advance health care directive document or other medical orders. To the contrary, the POLST process works best when the person has appointed a health care agent to speak for him or her if he or she becomes unable to speak for himself or herself. A health care agent can only be appointed through an advance health care directive called a health care power of attorney.

For persons with advanced illnesses, the POLST puts the advance directive into action by centralizing information, facilitating record keeping, and ensuring transfer of appropriate information among health care professionals and care settings. Different states have different rules governing emergency medical services (EMS). In Pennsylvania, EMS personnel may honor a POLST only upon receiving an order from a medical command physician, so it is critical to put a POLST in place.

A critical difference between a POLST and a living will is that the POLST is completed and signed by the patient and his or her primary care health care provider during a face-to-face meeting; it is not a document that an attorney can complete with or for the client.

Thus, if, or when, you or a loved one has an advanced illness, in addition to working with your attorney to assure there is a current heath care directive in place, be sure to have the patient meet with his or her health care provider to discuss and complete a POLST. 

To discover more about estate planning and making sure you have all your ducks in a row, join us for one of our upcoming workshops.  Just click here to find out more and RSVP.

 

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Signs it’s time to update estate planning documents

Having outdated or incomplete estate planning documents leads to a false sense of security as we enter our senior years.

Therefore, it is important that we periodically review our documents to make sure they reflect our current wishes and meet current laws.

However, this is easier said than done – it is all too easy to forget or to put it off. There are, however, certain events that should automatically trigger a review.  

  • Marriage or remarriage. Spouses do not automatically inherit your entire estate by default; without a Will, he or she may only inherit a portion of your estate. This is a particular concern in the case of a second or subsequent marriage and blended family situations – you want to make sure your family is taken care of the way you want, not the way the state decides. 
  • Your spouse has passed away. When a spouse has passed away, the other spouse will need to update his or her estate plan to reflect that change, such as addressing in your estate plan any inheritance which you may have received, or changes to your agent appointments.
  • Divorce. Although a divorced spouse cannot inherit from you by default, it’s important that you make sure that your ex’s name is removed as joint owner or beneficiary from your accounts and policies, removed from trusts, etc.
  • You had a child or grandchild. You may need to make estate plan changes to reflect this birth, such as including that child/grandchild in your estate, creating trusts to manage funds until the child becomes mature enough in your opinion to manage an inheritance, providing for a guardian of a minor child, and many other considerations. 
  • Your financial situation has changed. Whether you have received a windfall, a significant pay increase, or even lost a job, you will want to make sure that your estate plan appropriately reflects those changes.
  • You’ve purchased real estate. A home is many people’s biggest investment, and you want to make sure it is covered in your estate plan, including such things as how to pay any mortgage off and who gets the real estate when you die.
  • You started (or ended) a business. Either of these circumstances is sure to have an impact on your financial life and warrants a review of your estate plan. Succession planning is a big part of business and estate planning, so that you can make clear what will happen to the business if you die or become incapacitated.

There are numerous other life events that should trigger a review of your estate plan, but these are some of the biggest. If any of these events occurs, visit a qualified elder law attorney to review and discuss your current estate plan, and any changes which may be appropriate.  You can also contact us anytime by clicking here and we’ll be in touch.

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The Value of a Living Will

I was in my doctor’s office the other week and I noticed a large collage on one wall all about the importance of Advance Directives, or Living Wills.

It emphasized the importance of Living Wills, regardless of your age, and reinforced what our office always stresses to our clients or members of the community to whom we speak.

An Advance Directive or Living Will is a document in which each of us tells our loved ones how we want the end of our life to be handled – when we are in a permanent vegetative state, permanent state of unconsciousness, or in the end-stage of a medical condition, all with no reasonable likelihood of any significant recovery, do we or do we not want to be resuscitated, tube fed, or the like? 

How will our loved ones know our wishes on these matters if we don’t communicate them in a meaningful way?

The best way to do so is to create an Advance Directive now, while we are still able to decide for ourselves. One of the quotes on the doctor’s display said, “End of life decisions should not be made at the end of life.” Another said, “For human beings, life is meaningful because it is a story, and in stories, endings matter.”     

Most of us know what medical decisions we want made on our behalf at the end of our lives, but have we communicated that to our family and our loved ones? If not, how are they to know? The display had another quote: “I have an advance directive, not because I have a serious illness, but because I have a family.”

When we meet with clients to help them create estate planning documents, we always point out to them that they have the option in their Living Will of deciding what, if any, extraordinary measures they want taken at the end of their lives. Once they select those options, we then come to perhaps the most difficult question of all: should their instructions be binding on their families and providers, or do they want their loved ones to be able to override their decisions?

Many opt for binding instructions, so their loved ones do not have to take on that difficult decision in the heat of a devastating crisis. Either way, they have expressed their desires to guide their loved ones in making tough decisions.

Age is not a factor in creating a Living Will; tragedy can strike unexpectedly at any age. The expense is low, but the peace of mind in knowing that when our time comes we control the quality of our passing on is priceless, both for us and for our loved ones.

So, start the conversation with your family. Communicate your wishes to them, and urge them to communicate theirs to you. Then, go to a qualified estate attorney and put those wishes on paper in an Advance Directive/Living Will so that, when your time comes, all involved, including your medical providers, know how you want the end of your life to be managed.  

If you want to get the process started the first step is to join us for one of our free educational workshops.  Just click here for more information and to grab a seat.

 

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Guardianships in Pennsylvania

If you are dealing with elderly people, it is important to understand the recently revised rules for guardianships in Pennsylvania.  The reason for these major changes is due to growing concern about financial, physical, or emotional abuse of the elderly who are no longer able to speak for or protect themselves. Among other goals, the new rules are designed to increase oversight and accountability of the guardians.

Guardianships of elderly people typically result when a person does not have a financial or medical power of attorney, and is no longer able to manage healthcare or financial decisions. Even when an elderly person has a financial and/or health care power of attorney, there are times when a guardianship is still necessary. 

For example, a person starts to give away money to strangers or based on solicitations, when that has not been that person’s pattern previously. Often, the person will not even remember doing it. Having a power of attorney does not take away that person’s right to deal with their own health care or finances; it merely names others who can assist that person. Thus, an elderly person’s designated power of attorney generally cannot prevent the elderly person from making unwise or unhealthy decisions. A guardianship is needed to accomplish that.  

Only a judge can appoint a guardian.  It is a decision they do not make lightly, because appointment of a guardian results in the incapacitated person essentially losing her/his right to act on her/his own behalf.  There are two aspects of a person’s life for which guardianships can be granted. First, a guardianship of the person addresses general health and quality of life issues. Second, a guardianship of the estate addresses financial issues. A judge can appoint a guardian to address one or both of those areas, depending on the needs of the person.

There are two parts to a guardianship proceeding. The first part relates to whether the person can make appropriate decisions concerning health care and/or finances. This part requires medical evidence from a doctor. If the judge finds a person is unable to make such decisions,  then that person is ordered to be incapacitated.

The second part relates to the judge appointing an appropriate guardian. The judge considers testimony or other evidence that the person seeking guardianship will provide appropriate healthcare and/or financial decisions in the best interests of the incapacitated person. Frequently, a close relative, such as a spouse or child, is the one seeking guardianship.

The new rules place greater requirements on the guardian.   For example, a potential guardian must provide a criminal background check because a criminal history can affect that person’s ability to serve. Also, there is now an electronic reporting system which allows guardians to file required annual financial reports. The new state-wide monitoring program is meant to provide more thorough screening of annual reports and trigger appropriate follow-up action if needed.  

Given the increased requirements, responsibilities, and oversight of guardians, it may no longer be the case that a spouse or child will automatically be appointed.  It is now more important than ever for clients and attorneys to screen potential guardians and determine whether that person could serve under the new rules. 

This article addresses a few changes to the guardianship laws and procedures in Pennsylvania.  There have been many changes, all of which are intended to provide better protection for those who are unable to care for themselves or their finances.  Please seek professional legal advice for further information which may relate to your specific circumstances.  Do discover more about this and other estate planning and/or asset protection planning topics join us for one of our upcoming workshops.  Just click here.

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