Tag: power of attorney

Important Medical Documents for Your Young Adult Child

Written by kwmlaw on August 15, 2018. Posted in Kelly & West News.

As your child graduates from high school, you are both thinking about the exciting future. But whether your child is off to college or some other venture, there are a few legal decisions you should make in case of an emergency. Imagine if your child ended up in a hospital and could not make decisions for himself. Of course, you’d want to step in to help. But if your child is a legal adult, age 18 or older, you will not be able to do so. In fact, you wouldn’t even be told any specifics about his condition due to HIPAA regulations.

To prevent this problem, you and your child should fill out paperwork that will enable you to help him or her in case of an emergency. There are documents you need:

A durable power of attorney;
A health care power of attorney; and
A HIPAA release.

These papers are often used in elder law, by adults caring for their parents. They signify that the agent has been given the power by the signee to preside over financial and medical decisions and grant access to their medical records.

In each document, your child can decide who they would like to deem responsible as their agent. This may be you. However, if your child is uncomfortable with having you in this position, he or she may choose someone else.

Durable Power of Attorney: This document designates someone as an agent to preside over financial and legal matters on your child’s behalf. These forms can vary from state to state. Durable Power of Attorney grants agent a lot of power. For this reason, some people may be hesitant about signing it. Talk to your attorney about the best approach, but this one is especially useful if your child is traveling abroad.
Health Care Power of Attorney: This document gives an agent authority to make medical decisions on your child’s behalf. It is a good idea for your child to nominate more than one agent, in case the first is unable to serve.
HIPAA Release: This document designates less power to the agent but allows medical staff to share your child’s medical status or condition with agents.

While you want to help your child, he or she is considered an adult at age 18. Without these legal documents, you may have no way to help. Of course, you and your child should discuss these issues and decide what is best. If you have any questions, contact us for help.

12 Estate Planning Terms You May Not Know

Written by kwmlaw on October 26, 2017. Posted in Kelly & West News.

Estate planning is making sure things are in order before your death or in the event that you are incapacitated. When working with an attorney to plan your estate, you may hear some new terms. We want to make sure everything is clear while you are making these important decisions, so here is your personal estate planning glossary.

Beneficiaries – The persons and/or organizations who receive or benefit from the trust assets after the death of the trust grantor.
Disinherit – To prevent someone from inheriting from you. You cannot disinherit a spouse in North Carolina without his or her consent.
Estate – A fictitious legal entity set up for the purpose of collecting assets and paying debts after the death of an individual.
Joint Ownership – A form of ownership in which two or more persons own the same asset together. There are two types of joint ownership. Joint ownership with right of survivorship and joint ownership without right of survivorship. Joint ownership with right of survivorship allows the surviving owner(s) to take the deceased person’s’ interest after death, automatically, usually by operation of law. Joint ownership without right of survivorship means that the deceased person’s interest generally passes pursuant to the deceased person’s Will or pursuant to North Carolina law if the deceased person did not have a Will.
Living Will – This is also called A Desire for Natural Death or an advance directive. This document lets a person state his or her wishes for end-of-life medical care, such as life-support and feeding through tubes, in case they become unable to communicate their decisions for themselves. A living will have no power after death.
Personal Property – Movable property such as furniture, automobiles, equipment, cash, and stocks. This is unlike real property, like land, which is permanent.
Power of Attorney – The authority to act for another person in specified, financial, or all legal matters. A power of attorney has no power after death.
Revocable Living Trust – A written agreement that appoints a trustee to manage and administer the property of the creator. Unlike a will, a trust does not die with you. Assets can stay in your trust until the beneficiaries reach the age you want them to inherit.
Uniform Transfer to Minors Act (UTMA) – A law enacted in many states that allows you to leave assets to minors by appointing a custodian. Most often, the minor will receive the assets at age 18.
Will – A legal document by which a person, decides how to distribute his property at the time of his death. One or more persons will be named the executor to manage the estate until it is distributed.

You have the choice to let the courts handle your business or handle it by your family — but the latter means taking care of some things now. Contact us to have a say in your family’s future by starting your estate plan.

When Should You Begin Estate Planning?

Written by kwmlaw on February 12, 2017. Posted in Kelly & West News.

Estate planning may seem like one of those things you can do “later.” But in truth, it’s never too early to begin thinking about your estate. Life happens, and anything could happen to you or a loved one sooner than expected. The sooner you can sort out your affairs for your surviving family members the better.

What is Estate Planning?

Estate planning is the process of determining what happens when you die or are incapacitated. It can be a tough, sometimes uncomfortable thing to think about, especially when you are in good health, but unfortunately many people overlook this process and when tragedy strikes it is that much harder for their loved ones to manage everything. Generally speaking, the estate planning process involves creating a will and designating a power of attorney and a medical power of attorney. In some cases, estate planning can also include a trust and funeral planning requests.

How to Begin Estate Planning

Assets — The first step in the process is to take stock of all of your assets. These include any investments, your retirement accounts, insurance policies, real estate, business interests and other financially or emotionally valuable items. This would include things such as jewelry, cars, baseball card collections — basically anything that might hold deep personal significance to you.

Will — The next step involves creating a will, which will indicate what you want to happen with those assets after you’ve passed and who should inherit them. This part of the process also involves setting up a fund for any long-term care you might need in an assisted-living facility or nursing home, appointing guardians for your children, or setting up a trust for a child with a disability. You should re-evaluate and update your will often to reflect any changing circumstances in your life such as a new marriage, divorce, or new children and you should consider review your plan at least once every 3-5 years, even without a change in your circumstances to make sure your plan is up to date.

Business & Personal Affairs — During this time, you also want to carefully consider who you would want to handle your business affairs and medical care in the event that you become incapacitated. These individuals would have power of attorney and medical power of attorney if anything were to happen to you. Thus, it is very important that you choose individuals whom you trust and know will respect your wishes.

Next Steps

After making your individual bequests, it is important to sit down and discuss your plans with loved ones. The sooner you clearly outline your intentions to your family and friends, the less likely there will be disagreements that arise after you’ve gone.

Remember that every estate plan is unique. If you would like to begin the process of estate planning, contact us so you can start planning for your future immediately.

Avoid These 5 Common Mistakes When Creating Power of Attorney

Written by kwmlaw on October 25, 2016. Posted in Kelly & West News.

A power of attorney (POA) document authorizes another party (the attorney-in-fact) to make certain financial, legal, and business decisions on your behalf if you are unable to do so. If you decide that you need someone to help you with these affairs, it is important to have an accurate, well-detailed POA so that nothing is left for question. We compiled a list of common mistakes we see in our practice and hopefully we provide you with some insight so that you don’t run into any complications along the way.

1) Not Making a Power of Attorney

Many people think you only need a power of attorney when you are older or hospitalized, but that isn’t true. Military personnel should create one while they are deployed, in case they become unable to handle their affairs. You may need one if you are traveling overseas, and need someone to pay your bills, especially if you are single. Consult with an attorney if you are unsure whether or not a POA is right for you.

2) Not Creating the Correct POA

There are different kinds of POA documents that are needed in certain situations. Make sure you create the right one. Do you need someone to make general financial decisions on your behalf? A General POA is probably right for you. But what if you don’t want the attorney-in-fact to have too much power? Consider a Limited POA. When will it become effective? Research Durable or Springing POA to help you make your decision. Do you need someone to handle your health care affairs? There’s one for that too.

3) No Flexibility in POA Structure

Powers of Attorney need to be drafted with as much flexibility as possible to allow for “crisis planning.” If you have to enter a nursing home unexpectedly and don’t have long-term health care or a sufficient monthly income, you will need a flexible POA so that the attorney-in-fact can handle your financial decisions. This is very important, especially because nursing home care can start at $6,300 per month. The key to a well-drafted POA is to make sure it is broad enough to avoid a guardianship if you have to qualify for government assistance to pay the nursing home bill. Otherwise, you may still need a guardianship anyway, which makes the whole process of qualifying for government benefits much more difficult.

4) Not Updating Your POA

There are a number of instances where you will need to update your POA. You will need to rewrite your POA if you move to a different state so that it complies with state laws, and if you want to change any details or give your attorney-in-fact a different set of powers. You may need to revoke your current POA and create a new one if you wish to establish a new attorney-in-fact, which happens quite often. Make sure you notify all accompanied parties of any of these changes so it will prevent possible hiccups. Companies that delegate your affairs need to be notified.

5) Giving Up Too Much Control

You must review your choice of attorney-in-fact carefully. Whomever you appoint to this position can end up with a lot of power regarding your financial and business affairs. Your Power of Attorney choice will need to be someone you trust, who can handle making tough decisions when you are unable. Make sure you give him or her the right amount of power. Don’t give someone any more information than what he or she needs to make your POA secure.

Get a free information sheet with everything you need to know about Power of Attorney. Just fill out the form on the right tab of this page: /power-attorney/.

The Ultimate Checklist to Plan Your Estate

Written by kwmlaw on February 23, 2016. Posted in Kelly & West News.

Estate planning is not something most of us want to do. Planning what will happen after we are gone reminds us that we will not be around forever. But it’s important to make these decisions now so that your family is prepared. Start your estate planning as soon as possible so you can protect your family from any obstacles that may be encountered along the way.

While many people assume estate planning is complicated, it does not have to be an onerous process. Use this handy checklist to help you and your family know what documents you may want to consider. Not everyone will need all of these items, but this list is a great place to start when discussing your estate with your Kelly & West attorney.

The policies and documents you may need include the following:

Will

Who is going to inherit your property? Who will be named guardian of young children? How will your estate be divided among family members? A Will states your answers for all of these questions and more.

Trust

Trust can help you make decisions that go into effect before your death and avoid administering your estate with the court after you die. It explains in detail, how and when assets pass from the trustee to the beneficiaries. It simplifies the process for your family and provides extra protection for you and your loved ones.

General (Financial) Power of Attorney

This document gives an agent the power to act on your behalf, either now or when you become incompetent. This document can be durable and last through incompetency or it can spring into effect only if you become incompetent.

Health Care Power of Attorney

This document grants your agent the power to make medical decisions on your behalf. Who your doctor will be, what treatments you will receive, and what hospital you will use, are just a few examples of the powers your health care attorney can have.

Living Will

A living will has no power after your death. It does, however, state your wishes regarding life support and feeding through tubes should you have no chance of recovery. Living wills are especially important for cases where you become unable to communicate your wishes.

Limited Power of Attorney

A document providing specific powers that an attorney may have. Selling property, collecting debts, and other financial transactions are some of the common uses of a Limited Power of Attorney.

Make sure you keep all of these documents and policies organized so you will be prepared for anything. Start planning today so your family members have a better tomorrow.

Don’t Wait Until Too Late: Make End-of-Life Decisions Now

Written by kwmlaw on November 6, 2014. Posted in Kelly & West News.

We all live in the “rat race,” rushing around trying to check off our to-do lists. It’s tough to think what would happen if we weren’t competent to manage our affairs and to do the things we do. Who would care for us? Who would take care of our personal and financial business?

The best time to plan your affairs and plan what happens after you die is when you are unlikely to be sick or die in the near future. Pre-planning is easier and allows you to calmly detail the steps you would like taken in the event you are incompetent or die suddenly. Make a plan to get your affairs in order by the end of the year.

Documents You Need
Power of Attorney — This is the most important document you need. A Power of Attorney appoints someone else to make decisions for you in the event you become incompetent or unable to make your own decisions.
There are two types of Powers of Attorney in North Carolina: a General (or Financial) Power of Attorney and a Health Care Power of Attorney. The first appoints someone else to make financial and business decisions for you if you become incompetent or incapacitated (i.e. bedridden). The second names someone to make medical decisions for you if necessary.

If you do not have a Power of Attorney and you become incompetent, you may have to go to court, be declared incompetent and have a guardian appointed for you – a very timely and fairly expensive process. Additionally, your guardian will have to account to the court each year for how your money is spent; it can only be spent in accordance with the law. Given this inflexible process, we recommend you avoid this by setting up your Power of Attorneys documents now.

Living Will — Another very important document is a Living Will (formally called a Desire for Natural Death in North Carolina). This document details your wishes concerning life support and feeding through tubes, should you find yourself in a hopeless circumstance where death is imminent. This can be a great gift to family members who are trying to make decisions because it offers your specific instructions on the use of ventilators, respirators, feeding tubes, saline IVs, and more. Living Wills are inexpensive and save countless hours of anxiety for family members.

Trust — We often are asked, “What can I do today to make it as easy on my loved ones as possible when I die?” The short answer: a Trust. A Trust is a legal document that allows you to avoid probate, maintain your privacy, protects you in the event that you are incompetent or incapacitated, and may even allow you to avoid certain taxes.

While a Will is good, Trusts enable you to avoid “probate” (i.e. opening an estate with the court when you die) because legal title is no longer held by you, but is transferred to you or someone else as Trustee. A Trust can be set up to manage money or property for the lifetime of the beneficiary, to provide for education of a beneficiary, to protect a spouse, or to accomplish countless other goals, thereby making it very flexible alternative to a Will and a great option.

A Trust costs more up front, but it saves time and money in the long run. If you have a properly drafted and funded Trust, your family is often able to settle your estate in only a day or two!

Will — A Will is necessary for anyone who doesn’t want the state to decide who will take their stuff. Most Wills are relatively simple and name a person to administer the estate after death (called the “Executor”). They often provide for a spouse or a loved one, but if you only have a Will without a Trust, chances are your family will still have to go through probate and open an estate with the court when you die. This process can take a year or more to accomplish and the title for many assets will often be held by the Executor during this time. Therefore, we encourage all clients to consider a Trust to avoid the costs and delays attendant to probate and the estate administration process.

If you have questions regarding a Will, Trust, or Power of Attorney, please don’t hesitate to contact us.