Estate Planning Tools That Each of Us Should Have

What is your “Estate”?

• Definition
• Any interest you own in:
• Real property (land and attached buildings)
• Personal property (everything else)

Plan Ahead

• Protect and provide for your spouse and children
• Avoid family conflicts
• Provide for Special Needs individuals
• Leave a lasting legacy

WHAT DOCUMENTS SHOULD WE ALL HAVE AT MINIMUM?

1. Last Will and Testament (preferably with contingent Special Needs Trust)
2. Durable Power of Attorney
3. Advance Health Care Directive
4. HIPAA Authorization

Last Will and Testament

• A Will is a written document signed in the manner prescribed by law and which disposes of property upon death.
• Georgia requires two witnesses who watched the “testator” or “testatrix” sign the Will while in his or her presence.
• Self-proving affidavit

A Will also:

• Nominates who you would like to be responsible to administer your estate when you die
• Can nominate guardians for minor children
• Can determine when and how your devisees will receive the property you leave to them
• Can determine how taxes, if any are owed, will be paid, and can employ tax-saving strategies

A Will:

–    Must be probated before it becomes effective

• After your death
• Upon sufficient proof that it is your Last Will
• Court determination = probate
• Court oversight of administration
• Public process.

–    Does not provide and help for you while incapacitated during your life.

Trusts

• A private agreement between a “settlor” and a “trustee” to manage trust assets in certain ways for the benefit of a “beneficiary”
• A Trust may:

✓ Be revocable or irrevocable

✓ Have more than one beneficiary

✓ Be written or oral

✓ Include a “trust protector” provision

Special Needs Trust (also called Supplemental Needs Trust)

• Protects disabled beneficiary’s eligibility for government benefits
• Provides for higher quality of life
• Provides framework for care and management of assets
• Allows parents to express their desires
• Protects assets from creditors and predators
• Extends life of assets
  

Durable Power of Attorney (DPOA)

• Empowers your “agent” to act on your behalf in financial transactions
• Can be either “springing” or “immediate”
• “Springing” requires proof that condition has been met – usually that you are incapacitated
• “Immediate” allows your agent to act on your behalf whenever needed
• “Durable” means that the POA stays in effect after the principal becomes mentally incapacitated
• Georgia requires a DPOA to be acknowledged(“notarized”) by a Notary Public 
  

Advance Health Care Directive (AHCD)

Key Parts:

• Health Care POA - Empowers your agent to act on your behalf to make medical decisions
• End of Life Decisions (formerly “living will”)
• Organ Donor – Should agree with your driver’s license
• Georgia requires one witness
• Can be either “springing” or “immediate”
• “Springing” requires proof that you are incapacitated
• “Immediate” allows your agent to act on your behalf whenever needed.
  

HIPAA Authorization

• Names “authorized recipients” of your private health information
• Allows “covered entities” (health care providers) to release your private health information to “authorized recipients” without violating the HIPAA Privacy Rule
• HIPAA Privacy Rule criminalized unauthorized release of an individual’s private medical information
• A generic form is prudent because not limited to a particular health care provider or facility
  

Comprehensive Estate Planning

• Last Will and Testament with contingent SNT
• Durable Power of Attorney
• Advance Health Care Directive
• HIPAA Authorization

-- Plus --

• Stand-alone Trusts, if appropriate
• SNT, revocable or irrevocable trusts, etc.
• Medicaid and VA Pension Planning
  

But, what should we each have at minimum?

1. Last Will and Testament (preferably with contingent Special Needs Trust)
2. Durable Power of Attorney
3. Advance Health Care Directive
4. HIPAA Authorization