Difficult Conversations: Estate Planning

Estate planning and talking about end of life issues is one of the most difficult triage cancer blog difficult conversations estate planningconversations to have with a loved one.  Nobody likes to think about their own mortality, much less make a plan for it.  Nevertheless, end of life conversations are vitally important for everyone to have.  The overwhelming number of people don’t have these conversations until a terminal illness is diagnosed, but sadly, anyone of us could find ourselves on emergency life support tomorrow.  Talk to your loved ones and make sure they are aware of your final wishes.

The term “end of life issues” does not just mean funeral arrangements.  In fact, the greater issues that need to be discussed are what the patient wants in terms of live saving measures.  Does the patient want to receive CPR?  Does the patient want artificial hydration or nutrition?  Not only should you talk about this, but the patient should complete an advance directive and make sure their families and their healthcare team have a copy.  There are other estate planning documents that should also be considered and completed. Check out our Quick Guide to Estate Planning for more information. You can also read previous blogs on estate planning topics.

Another important thing to discuss is where the patient would like to spend his or her last days.  Not just which bucket list activity they want to complete, but do they want to stay at home, in a hospital or maybe a hospice facility?

For a terminal cancer patient, there is another question that needs to be posed.  At what point does the patient want transition from treatment that attempts to cure the cancer, to treatments that attempt to mitigate symptoms and provide quality of life? This can provided through hospice care.  Hospice care can be given in home, in a hospital, or in assisted living – wherever the patient is.  Hospice care is about making the most out of whatever days are left, while remaining comfortable.  Hospice care can even include art or music therapy.

It is easy to say that these are crucial decisions that need to be discussed with loved ones, but it is much harder to start the discussions.  There are many resources for you to find inspiration on how to begin this difficult conversation.  Being around friends and family during the holiday season might provide some opportunities to have some of these conversations. Get these decisions and discussions out of the way, so you can move on to enjoying your time together.

National Healthcare Decisions Day: Saturday, 4/16!

National Healthcare Decisions Day, or NHDD, is a national call to action, to build awareness and spark conversation on the importance of advance care planning. The theme for 2016 is “It Always Seems Too Early, Until It’s Too Late.”

The main goals of NHDD are to make the topic of advanced care planning something more frequently discussed and to open the lines of communication on a topic that can sometimes be difficult to talk about.

There are so many reasons why it is important to think about and take steps to complete advanced care planning, but in particular, it allows you to:

  • Clearly document your wishes
  • Avoid burdening your loved ones with having to guess what you would want
  • Avoid conflict among your loved ones

NHDD focuses on documenting your decisions related to how you would want to receive health care, in case you are unable to make health care decisions for yourself.  The most effective way to document your decisions is through an advance health care directive.

An advance health care directive is a legal document that is specific to your state.  Click here to download your state’s advance health care directive form.

There are typically 3 parts to an advanced health care directive form.

Part 1: A Health Care Proxy

A health care proxy is someone you choose to make health care decisions for you if you are unable to make them for yourself.  For example, you may choose your spouse or your sibling to make those decisions for you.

Part 2: A Living Will

A living will focuses on identifying specific types of health care you do or do not want to receive.

Part 3: Organ Donation or Anatomical Gifts

This section allows you to make general or specific decisions about organ donation or anatomical gifts.  For example, if you would like to donate your body for research.

Once you have an advance health care directive completed, you should share your decisions with your loved ones and your health care team, so that they know your wishes.

The best time to complete an advance directive is now.  We never know what tomorrow will bring and it’s so important to be prepared.

Medical decision making is just one part of the estate planning process.  You may also want to consider completing other documents, such as a will, trust, or power of attorney for financial affairs. For more information about estate planning, visit www.lawhelp.org, and then pick your state.

Get involved in National Healthcare Decisions Day this year!

  • Learn more about the steps you may choose to put in place for your own medical decisions or talk with family members and loved ones.
  • If you are a health professional or advocate, there are valuable resources and ideas provided by NHDD.org here!

On Saturday, April 16, 2016, be a part of the movement to demystify healthcare decision-making!

Triaging Your Last Will and Testament

by Michelle Shagenov, Esq.

WillIn my last post, I discussed the power of attorney as a powerful “estate planning“ tool. I explained that a power of attorney allows YOU, not a Court, to choose who will make financial and legal decisions for you. The power of attorney can be used in an emergency or simply for convenience. I emphasized that you should ONLY name someone who is trustworthy and reliable as your agent because a power of attorney grants your agent nearly unlimited authority and control over your affairs and finances. However, your agent’s authority over your affairs ends at your death. *You can find my previous blog post here.

At death, distribution of your property depends on how your property is titled. Upon the death of the property owner, any property or accounts with a named beneficiary, such as joint, ITF, POD, TOD accounts pass directly to the named beneficiary. Property held solely in the deceased person’s name is distributed according to the terms of their “Last Will and Testament” or in the absence of a “will”, to your immediate relatives.

The Last Will and Testament or “a will” is a formal and legally binding document that communicates your wishes about the future care of your family and disposition of your property in the event of your death. YOU decide who will receive your property and personal possessions, how much of your property they will receive, and when they will receive it. A will allows you to gift any portion of your property and possessions to family, friends, or charities.

You can also plan ahead for the care of vulnerable loved ones, such as minor children, family members with special needs, and pets, by establishing trusts that are tailored to their unique needs and setting aside funds for their care. A family member, friend, or organization can be appointed as a trustee to manage the trusts and/or to care for your pets. In addition, you can recommend that a trusted family member or friend to act as a guardian for minor children or a family member with special needs (Guardianship is a separate legal process that requires court intervention and approval).

Whereas the power of attorney allows you to appoint an agent to handle your affairs while you are alive, the will allows you to appoint someone to carry out your final wishes after you are gone. This agent is called an executor. While you may name any one over the age of 18, you should choose only a trustworthy and capable individual to avoid financial abuse and conflict among your loved ones.

If you die without a will or “intestate”, then your property will be distributed to your immediate relatives. Although each state has a different hierarchy for determining relatives’ right to inherit, your surviving spouse and children are always first in line to inherit.  However, intestacy laws do not make any special provisions for minor children, family members with special needs, or pets. Even if you have a surviving spouse, a court may appoint a guardian to manage your minor children’s inheritance. If you do not have a surviving spouse, a court will appoint a guardian for your minor children. Under intestacy, a family member with special needs will inherit funds directly, thus jeopardizing their government benefits. If you die without a will, your next of kin will inherit your pets.   Only your immediate relatives are entitled to receive your property, regardless of your relationship to them.

A will must be signed in the presence of at least two witnesses. Any person over the age of 18 can be a witness, as long as he or she is not named as an agent or beneficiary in the will. Since the will is the only document that expresses an individual’s final wishes, attorneys typically ask the person signing a will a series of questions before the signing to demonstrate his or her capacity and intentions. In some states, attorneys prepare and attach a “self-proving affidavit” to eliminate the need for the witnesses to testify in court about the will signing ceremony at a later date.  This affidavit must be signed by the witnesses and notarized. *You can find my previous blog post here: Link.

After a person dies, the will does not take effect until it has been reviewed and approved by the Surrogate’s Court in the county where the deceased last resided. This process is called probate. When there is no will, the Surrogate’s court appoints an administrator or a personal representative to handle the affairs of the estate. Under intestacy, immediate relatives receive priority for the administrator role. In my next post, I will discuss the probate and administration processes.

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship.  For more information, please contact Michelle Shagenov at michelle@nyestateattorey.com or (347) 618-1454.

Triage you Estate Plan: Power of Attorney

by Michelle Shagenov, Esq.seniors

In my last post, I discussed the health care proxy as a valuable “estate planning” tool. I emphasized the importance of self-reflection and communicating your wishes about health-care decisions to loved ones. I explained that a health care proxy allows YOU, not a Court, to choose who will make health care decisions for you in a medical emergency. I noted that a health care proxy can help you avoid family conflicts about your care by giving only one person the authority to make those decisions.

Like the health care proxy, the power of attorney document is a powerful tool for “estate planning” because it allows you (the principal) to choose someone (an agent) to make decisions for you if you are unable to make those decisions yourself. Similar to the health care proxy, if you do not have a power of attorney in place and are no longer able to handle your own affairs, a Court will have to appoint a guardian to do so for you. The guardian appointed may very well be a perfect stranger!

Unlike the health care proxy, the authority given by a power of attorney is very broad and covers most financial and legal transactions. For instance, with a power of attorney in place, your agent can buy and sell property, borrow money, represent you in legal matters, and decide where you will live. The power of attorney can go into effect as soon as the document is signed by you and your agent (durable power of attorney) or when you are no longer competent to handle your own affairs (springing power of attorney). Since a durable power of attorney takes effect as soon as your agent signs the document, your agent is able to step in at a moment’s notice, regardless of your health condition or mental capacity. For instance, your agent can sign real estate closing documents for you if you are on vacation at the time of the closing. On the other hand, a springing power of attorney requires two doctors to certify to lack of mental capacity before the power of attorney document takes effect. For this reason, many clients and estate planning practitioners prefer the durable power of attorney.

You can name any one who is over the age of 18 as your agent. However, the power of attorney document grants an agent virtually limitless authority, which can be an invitation to financial abuse in the wrong hands (e.g., the Brooke Astor case). Since more than one person can act as an agent on a power of attorney, if you have any concerns about the person you are naming, one solution is to require that your agents act jointly and sign all documents together.  Another option is to grant the agent limited power of attorney for one bank account where they are listed jointly with you for convenience. If you become dissatisfied with the relationship, you can revoke the power of attorney and remove that person from the bank account at any time. Of course, the best strategy is not to name someone you do not trust as your agent in the first place!

Each state’s laws on the power of attorney differ regarding additional safety measures. In New York State, the power of attorney may be modified to require the appointment of a monitor to supervise your agent. In addition, in New York State, if you would like to allow your agent to give gifts over $500 to himself/herself or anyone else, you must sign a separate document in the presence of two witnesses and a notary.

Even though the power of attorney provides broad ranging power, that power ends at the principal’s death. In my next post, I will discuss the Last Will and Testament, which is the document that advises a Court about who will handle the affairs of an estate and who will receive an inheritance.

Don’t miss Michelle’s past posts on Estate Planning and stay tuned for the next installment!

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship.  For more information, please contact Michelle Shagenov at michelle.shagenov@gmail.com or (347) 618-1454.

Medical Decision Making – Plan Ahead!

by Michelle Shagenov, Esq.

senior couple talking

In November, I discussed basic estate planning tips and estate planning as the key to retaining control of YOUR affairs, for as long as you are able to do so. I also noted that developing an estate plan is an individualized process that depends on your needs, values, and beliefs. I stressed the importance of self-reflection to help you formulate an estate plan best suited to your and your family’s needs.

Self-reflection is an essential component of advance planning for health emergencies. By taking the time to think about your lifestyle and beliefs, you can decide what kind of health care and medical intervention you would like in a health emergency.  Once you are clear about your wishes regarding health care and end-of-life treatment, you can communicate them to your loved ones through a health care directive.  Health care directives also allow you to appoint a family member or a friend who will respect and follow your wishes if you are unable to do so yourself.

Health care directives can help you avoid heated and emotional family conflicts at a hospital bedside like those in the Terri Schiavo case as well as lengthy and costly guardianship proceedings where the court appoints a third-party to make these very personal decisions on your behalf!

Practical tips: Keep your health care directives in a safe and easily accessible place. Keep spare copies. Provide your loved ones with copies. Your family members (or friends) cannot act on your behalf in a medical emergency without your health care directives in their possession! Beware of this common catch-22: You do NOT have easy access to a health care directive if it is in a hospital record because your agent cannot access your medical records without a health care proxy!

The three most commonly used health care directives are:

Do Not Resuscitate Order (DNR):  Advises health care providers that you do not wish to receive cardiopulmonary resuscitation (CPR) if your heart stops beating or you stop breathing. The DNR does not address other health care decisions or end-of-life care. Also, the DNR cannot be used to name a health care agent to act on your behalf.

Living Will:  Communicates your wishes regarding health care decisions, particularly end-of-life treatment. For instance, you may specify whether you wish to receive artificial nutrition and hydration. You may also advise your loved ones regarding organ donation and funeral arrangements.  Your wishes, as indicated in your living will, apply only if you suffer an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, such as a terminal illness, permanently unconscious, or conscious with irreversible brain damage.  As a living will is not legally binding in all states, it is best used in combination with a health care proxy.

Health Care Proxy: Appoints an agent to make decisions about your health care and end-of-life care if you are no longer able to do so.  Only one person may act as an agent at a time. The rationale is that doctors want to communicate with one decision maker, not a committee of conflicting family members.

It is strongly recommended that you discuss your wishes with your agent, especially regarding end-of-life care. Being open and honest about your wishes with your loved ones minimizes conflict during a stressful and difficult time and ensures that your wishes will be respected. In addition, in some states, the agent cannot make decisions about end-of-life care unless those decisions are stated explicitly in the health care proxy form or the health care proxy form states that the agent is aware of the end –of-life care wishes of the patient.

You can name any individual over the age of 18 but should choose only a trustworthy and capable individual to avoid future conflicts among your family members. While health care directives are not easily abused, you should give careful thought and consideration to your choice of agent care for all of your estate planning documents. Other estate planning documents, such as the durable power of attorney, grant an agent much more authority and discretion and can be easily abused without careful thought, consideration, and planning.

Next month, I will discuss how the durable power of attorney, when used appropriately, can provide continuity in financial and estate planning, even in the event of incapacity.

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship.  For more information, please contact Michelle Shagenov by email or by calling (347) 618-1454.

Disclaimer

Getting Started with Estate Planning

Willby Michelle Shagenov, Esq. 

Over the years, I have had numerous clients who avoided estate planning until they faced a health emergency or another crisis. When I asked them why they put off estate planning, I heard varied responses; including the assumption that estate planning is only for the wealthy and the elderly.

However, the reality is that everyone needs a basic estate plan, particularly those people who face a chronic illness like cancer.  A basic estate plan ensures that YOU make the important decisions about your medical care, your financial affairs, and your family’s future.  If you fail to plan or plan inadequately, a third party may be appointed by a judge to make these decisions for you and your family.

Each person’s plan is different and depends on his or her own unique life circumstances. The first step in estate planning is to reflect on your needs, values, and lifestyle.

Here are some questions and tips to get you started:

1. What are your values and beliefs? What is most important to you? Estate planning documents require you to make decisions about your medical and end-of-life care, donation of your organs, your funeral wishes, and inheritance of your assets.  Your decisions will depend on your values and beliefs.

2. Inventory your assets.  What do you own? Your assets include bank accounts, investments, insurance policies, real estate property, vehicles, jewelry, collections, and on-line accounts.

3. Review your financial documents. Do you own any of your property jointly with another person? The distribution of some assets is not covered by the terms of a will. Jointly titled assets or those with designated beneficiaries (“Payable On Death,” “Transfer On Death,” and “In Trust For” accounts) are known as testamentary substitutes.  Upon an individual’s death, these assets are distributed directly to the joint title holder or designated beneficiary

It is important to review your financial documents, at least annually. This is to ensure that your joint title holders and designated beneficiaries are your intended beneficiaries. A common mistake is the failure to remove an ex-spouse as a joint account holder or beneficiary!

4. Whom do you want to inherit your assets? What are their ages, needs, lifestyles, health situations, income?  Without a will, only your immediate family members receive an inheritance. However, a will allows you to give your property to whomever you choose, including family members, friends, and charity.

Your choices regarding the amount of an inheritance, if any, will depend on your beneficiary’s age, need, lifestyle, and health situation. You may wish to consider a trust for the care of minor children, family members with special needs or chronic illnesses, and pets.

5. Whom do you want to make to medical decisions if you are unconscious or uncommunicative? Whom do you want to manage your financial affairs if you are no longer able to do so? Whom do you want to handle the affairs of your estate? Whom do you want to care for your minor children and/or your pets?  There are three basic estate planning documents: the health care proxy, the power of attorney, and the will. These documents allow you to designate an agent of your choice to make medical decisions for you, manage your financial affairs, handle the affairs of your estate, and care for your minor children and pets. If you do not have these documents in place, a judge may appoint a stranger to handle your affairs.

6. Communicate your wishes. It is very difficult for family members and friends to follow your wishes if they do not know what your wishes are! In addition, you can prevent disputes like the Terry Schiavo case if you clearly communicate your wishes, in writing.

Stay tuned for the next installment on estate planning from Michelle, covering health care directives and communicating your wishes regarding end-of-life care.

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship. For more information, please contact Michelle at michelle.shagenov@gmail.com or (347) 618-1454.

Leave a message to someone you love…In the future!

One of the goals of Triage Cancer is to make people aware of valuable and unique resources. Today we have the pleasure of introducing you to Zarpz.com!

ZarpZ.com connects patients with cancer [or others with serious or life threatening illnesses] and tZarpZheir loved ones with messages and videos created today that can be sent electronically on future dates. The site was inspired by Todd Edwards, whose mother had lost her battle with cancer when he was an infant. At age 38, Todd discovered a letter his mother had written during her illness. “The letter was a thank you note written to my Aunt and Uncle,” said Todd. “She wrote briefly about me—it was very meaningful and something I will always treasure. I am fortunate that the note wasn’t lost.”

“Delivering the right message at the right time provides the patient with the ability to create lasting legacy for their loved ones. In many ways, it can be a final gift,” said Deborah Mayer, PhD, RN past president of the Oncology Nursing Society and Associate Professor of Nursing at the University of North Carolina in Chapel Hill. “For example, the patient may want to send a written message expressing well wishes to her daughter prior to her high school graduation day. Or, the patient may want to send a photo slide show depicting a set of life’s instructions to his son when he turns 21. This is information that can be shared while the children are young, but will have much more meaning when they are older.”

In addition to creating and sending messages that express their love, individuals also can send materials that provide specific instructions about something, such as a video that clarifies issues raised in their will or estate plan. “People also may want to offer details about themselves that no one knew,” Todd explained. “Or, they may want to create a virtual scrapbook that could provide great enjoyment in the future.”

After a person creates a message, they can choose to notify their recipients that a message has been created and will be sent to them on a future date or they can leave it as a surprise. This initial communication with the recipient encourages them to register on ZarpZ.com and to keep their contact information current so that all future messages will be received.

On the date that the person selected to have their messages delivered, the recipients will receive an email alerting them that they have unread messages on the ZarpZ website. Once they click on the link in the email, they will be directed to the ZarpZ.com, and from there, they will be able to view their messages, photos or videos.

“ZarpZ provides a wealth of emotion for senders and recipients alike. For many patients, this is a way to communicate their thoughts and feelings,” Todd said. “And the emotional impact that these messages can have on the recipients is something that lasts forever.”

You can visit www.ZarpZ.com for more information.