Foundational Estate Planning Attorney
Many people think estate planning is only for very wealthy people, the “one percent” as they have been called. The fact is that almost every family can benefit from having its own estate plan, designed and implemented by an attorney who focuses on this area of the law. Without a plan of your own, the state will control how your assets are distributed after you pass away. Of course, the government is not worried about making sure your wishes are carried out or minimizing estate settlement costs. With a plan of your own, you also are able to control who can make healthcare and financial decisions if you become incapacitated, or in an end-of-life situation.Depending on your particular needs, we can design a plan for you capable of accomplishing all of the following goals and more:
- Maintain control of your property while you are alive, and give what you want, to whom you want, in the manner you want after you pass away
- Take care of you and your family if you become mentally incapacitated
- Protect your heirs from losing their inheritance if they become divorced, remarry or fall under the influence of predators
- Make sure your heirs are mature enough to handle a large inheritance on their own, and if they are not, protect the inheritance until they are ready
- Prevent family conflict after your death
- Ensure your legacy and lasting impact on society
The tools we can put to use to accomplish these goals include Wills, Trusts, Medical Directives, Powers of Attorney for Property, and HIPAA Authorizations. Let’s look at these tools in greater detail.
The Will governs the disposition of your property. Without a Will, you will be deemed to die “intestate,” which means your assets will be distributed according to the laws of the state in which you live. In other words, you will have no control. If you allow this to occur, don’t be surprised if your assets end up in the hands of some remote or estranged heir whom you had no intention of benefiting. In addition, if you have minor children, a judge will decide who will be their guardian and who will manage the assets that you leave them. Although a Will must be administered through the public process known as “Probate” (something that can be avoided with proper planning), it should be included as part of every estate plan.
Testamentary And Revocable Living Trusts
Even when estate taxes are not a consideration, a Trust can be a valuable addition to your estate plan. Whether established at death (Testamentary Trust), or during life (Living Trust), they provide a means to control how, when, and for what purpose, assets pass to future generations. Living Trusts provide several other advantages. First, because they can be revoked at any time and are not considered to be a separate taxable entity, they allow you to maintain complete control over assets during your lifetime without the necessity to file a separate tax return.
Second, a properly drafted and funded Living Trust eliminates the need to go through the public, time consuming, and often arduous process of probating your assets. Third, the Living Trust provides for orderly control of assets during your life (as well as at death) including the ability to provide for any disability or incapacity that may occur. Although the Living Trust must be funded to be effective, the process is primarily administrative and can usually be performed with relative ease.
A Medical Directive (also sometimes called a “Durable Power of Attorney for Health Care”), is an important legal document that we think is an essential part of every estate plan. In many jurisdictions (including Maryland), it serves two functions. First, it acts as a ‘Living Will” containing provisions determining your desires as to what medical treatments should be utilized to keep you alive should death become imminent or if you are in a persistent vegetative state without any chance of recovery. Whether or not you are in such a state is determined by medical professionals, usually including your attending physician and at least one other medical doctor.
Second, in addition to acting as a Living Will, your Medical Directive will also designate the person that you want to make medical decisions for you when you are unable to express your preferences. Typically, this occurs in situations where you are unconscious or in a mental state where you do not have the legal capacity to make decisions for yourself. During this stressful time, having a clear understanding in writing of your desires will prevent family disharmony and assist your physicians in providing the appropriate treatment.
In some jurisdictions (like the District of Columbia) that recognize Living Wills by statute, it may be preferable to have both a Living Will and a Durable Power of Attorney for Health Care drafted in two separate documents.
Power Of Attorney For Property
A Power of Attorney is a legal document that names one or more individuals that you designate, to make decisions concerning your property. Unless drafted properly, the power may end if you (the grantor of the power) become physically or mentally incapacitated. This can be cured through a “durable” power of attorney, which lasts through incapacity, or a “springing” power, which only comes into being in the event of incapacity. A Power of Attorney ends at death and cannot be used as a means to avoid probate or transfer ownership of assets. In addition, some financial institutions refuse to honor this document unless it is drafted on their form. Finally, if drafted too broadly, the Power of Attorney can be easily abused leaving your assets at risk. Consequently, although we often recommend this document, we are cognizant of its limitations and advise clients accordingly.
The Health Insurance Portability and Accountability Act (HIPAA) established national standards to protect the privacy of patients’ health care information. It mandates that health care providers and insurance companies who release the medical information of patients can face civil fines, criminal penalties, even imprisonment. While most of us would agree that medical information should be kept private, HIPAA has resulted in some unfortunate consequences for patients and their families. This is because the penalties associated with violating it often make health care providers extremely cautious about sharing medical information—even in an emergency—with family members, spouses and children. Fortunately, we can create a HIPAA authorization that allows you to specify individuals authorized to have access to your medical information. This makes it easier for your loved ones to ascertain your condition in an emergency and provide support in your hour of need.
DC Estate Planning Attorneys Can Help
At the Law Offices of Clifford M. Cohen, you’ll be able to sit down with an experienced attorney who will serve as your counsel through the entire estate planning process. With over 35 years of experience assisting clients in need, Mr. Cohen is prepared to help his clients reach peace of mind and protect the ones they love. Contact our offices today by calling (202) 845-7036 for your free case evaluation.
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