For the first time in 15yrs, we are not celebrating our independence by walking in the Racine 4th of July parade. We are all sad about this and it underscores the uncertainty of 2020.
As we consider Independence Day 2020, a lesson we can learn from this year is that the future is uncertain. How do we protect ourselves, our family, and our businesses from a sudden loss of autonomy? This year in particular, many of us have had to face this type of concern head on. Is there a way to be more prepared? A durable power of attorney for can go a long way to help.
The durable power of attorney allows you to name someone who can make decisions for you if are unable. With the durable power of attorney for finances & property, your designated decision maker will have the authority to act on matters related to your finances and property on your behalf. For example, your agent will be able to pay your bills, manage your income and handle your affairs in the way you would want if you could not act independently. For your health care power of attorney, your agent has the authority to work with your medical team to make decisions about your health care.
Through your estate plan, your chosen decision maker will be able to fulfill your wishes if you cannot act for yourself.
What makes a power of attorney durable?
When you are working with Rebecca Mason to create your estate plan, is durability important? The durability provision means that it is able to be used in the event of your incapacity. This is a critical aspect to your estate plan. While a power of attorney is a vital tool in all respects, you will need it most in the event you cannot make your own decisions.
Power of attorney documents are just one facet of your comprehensive Wisconsin estate plan.
Pubs in Ireland closed two days before St. Patrick’s Day. Schools and businesses across Wisconsin, the United States, and the world are closing. Professional and college sports have been cancelled. In Wisconsin, courts are closing until at least April 30 for many types of legal actions. While in situations like the grocery store, people are trying to impose some sort of social distancing protocol.
Now is not the time to panic. But it is the time to prepare. We are facing an unprecedented situation. It is difficult to know what to do and hard not to feel at least a little scared. The Coronavirus / COVID 19 seems to be taking over the entire globe at a rapid pace.
Estate Planning While Social Distancing
of us have a hard time sitting still in times of crisis. We like to do something to make the situation
a little bit better – for ourselves and for our community.
As a lawyer who specializes in estate planning and probate, I strongly recommend the following to be better prepared while you are social distancing yourself from others.
Make sure you have a Health Care Power of Attorney that is ready to work for you.
A Health Care Power of Attorney names a person who will advocate for your medical care if you become incapacitated.
You have the right to decide the quality
of life you want. Your Health Care POA
is the best way to direct your medical care if you are incapacitated.
If you have a Health Care POA, review it
and make sure the person you name as your agent is ready, willing, and able to
be your advocate. Make sure you have a backup
named who is also ready, willing, and able.
Upload it so you can access it on your phone. Email it to your agents and your
doctors. Carry a note in your wallet
with their contact information.
If you do not already have a
Health Care Power of Attorney, I strongly recommend you contact an attorney who
specializes in this area of law and schedule a phone appointment to get the
process moving. It is always better to work
with a professional with experience in this area of law. You will end up with a better product and ensure
that it is executed correctly. I have
seen many power of attorney documents that were not properly executed – which
becomes problematic if you are incapacitated and need someone to advocate for
However, if you are not able to meet with an attorney or cannot afford one, and if are a Wisconsin resident, you can download a state form here: Wisconsin Department of Health Services. I assume many other states have their own form. In Wisconsin, your Health Care Power of Attorney needs to be witnessed by two people. The witnesses must be over 18, neither can be your health care professional and neither can be named as your agent.
Execute a Revocable Living Trust (a “Trust”).
Having a Trust and avoiding the costly delay of a court-run probate just got a whole lot more important.
As health professional instruct us to stay home as much as possible. We do not know how the court system is going to function over coming months. If you are relying on a will (or don’t have an estate plan), your loved ones will likely have significant delay in accessing their inheritance as they wait for the courts to probate your estate.
In contrast, a Trust is a private
contract between you and your loved ones.
When you pass, your Trust assets seamlessly pass to your loved ones
without the hassle of the courts. If you
lose capacity, your successor trustee can step into your shoes and manage your
financial affairs. And while you are
alive and have capacity, you retain full control over your Trust assets.
You need to work with a professional to create and fund your Trust to ensure that it is done correctly. Too often I have clients come into my office thinking everything was handled because their deceased loved one had a Trust – only to find out that the assets were never put into the Trust and we have to go to court to probate the assets.
Check your beneficiary designations.
Financial assets and property can be transferred outside of probate through beneficiary designations. You can name someone to inherit your life insurance policies, your retirement accounts, and your bank accounts. You can also name someone to inherit your home and avoid probate of a significant asset.
designations can be a good way to transfer wealth and avoid the uncertainty of
the courts, there can be significant problems with relying on beneficiary
designations. The main problem with
relying on beneficiary designations instead of a Trust is that they do not
easily accommodate contingencies if a named beneficiary dies before you and
your estate might end up in probate anyway.
Many people are mistaken about who is actually named as their beneficiary. Maybe you set up your retirement account when you first got your job and before you were married. You could be disinheriting your spouse unintentionally.
Beneficiary designations are
also difficult because the person inheriting has to know they are the
beneficiary and what company to contact to obtain the funds.
If you are relying on beneficiary designations, double check to make sure the right people are named. It usually a simple process of calling the financial institution where your funds are held and asking them. I recommend asking them to mail you a confirmation as well so that you can give a copy to your beneficiaries.
Social Distancing: At least for the time being, life has changed significantly.
While we make sure we have enough food and figure out how to exist while social distancing, we can also make sure that our estate is in order. It seems that life is about to get a lot more difficult. But you can take some action to make sure that if things get really bad, your medical wishes will be followed and your estate is kept out of probate.
Thanksgiving can be a happy time to visit with your friends and family. People often take this time to reflect on what you have to be thankful for and often that is your loved ones.
It is also a perfect time to talk about your estate plan.
One of our clients started a tradition a few years back. On Thanksgiving after the meal is eaten and before too many drinks have been consumed, he sits down with the son who will eventually take over as successor trustee. He shows his son where he physically keeps his estate plan and other planning documents. Walks him through where all the family assets are held. He highlights what has changed over the previous year.
If you are fortunate enough to enjoy spending time with your family, why, you ask, would you interrupt the joy by talking about your death?
Why? Because your estate plan is a gift to them.
Take the time to think about all of your investments, real estate, and accounts. Contemplate all of your log-ins and passwords to your financials, your social media, and your digital libraries. Consider your monthly and annual expenses. Now imagine you are suddenly gone tomorrow. Would your husband or wife know what to do? Your daughter or life-long friend?
A friend was recently bemoaning the fact that her brother
left no will and a mess that she now had to clean up without any idea as to
what he wanted. She is living the
reality that your estate planning is – more than anything – a gift to your loved ones.
When you fail to organize your documents and execute your estate plan, you are leaving your loved ones in quite a predicament. We have opened probates that require us to call through every local bank and credit union trying to figure out where the deceased had accounts. We have had the surviving loved ones bring in boxes of financial documents not knowing whether their life insurance policies are still good, or whether retirement and investment accounts have been cashed out or rolled over into a different account.
Tracking down assets can be time-consuming and expensive. More importantly, you leave your loved ones
with an ever-present uncertainty. Did
they find everything? Are they wrapping
up your affairs the way you wanted?
The Holiday Season is upon us. When you gather, find a way to talk about your estate plan with your family. If you don’t have your plan yet, you may be able to get one before the holidays if you act now. It’s a good time to take the opportunity to start talking about how you want your things divided as a way to begin the process.