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While we always hope for the best, the reality is that most of us will experience a period of incapacity at some point in our lives. We may be unable to direct our own medical care, and we may not be able to pay our bills, sell our house, or otherwise deal with our assets and finances. At these most critical junctures, being prepared can save you and your loved ones a great deal of financial and emotional cost.
Each state has its own form of a medical directive. Oregon, for example, has an Advance Directive that allows you to name health care representatives who can make medical decisions for you if you are unable to direct your own medical care, and also allows you to tell the doctors directly whether you do or do not want life support or tube feeding in four very serious situations. The Advance Directive may be your most important estate planning document, given that nothing will impact you more personally than someone else directing your medical care.
A well-drafted general financial power of attorney is also crucial if you become financially incapacitated. A general power of attorney would allow a person you designate (your attorney-in-fact) to do anything with your finances and assets that you could do. A thoughtfully drafted power of attorney might also authorize gifting in appropriate circumstances. Oregon has recently passed a law specifically allowing “springing” powers of attorney that do not take effect until a specified event takes place (such as becoming incapacitated). Springing powers of attorney can add a level of protection to you and your finances, but may also raise a further issue.
Language in powers of attorney or trusts that allow someone else to handle your finances often require some evidence that you are incapacitated – often in the form of a letter from a doctor. However, the HIPAA privacy laws can make it next to impossible for your attorney-in-fact (or successor trustee under a Trust) to obtain a letter from a doctor as proof of incapacity. Different doctors and hospitals will have their own versions of HIPAA Authorizations (or “Releases”) that will allow you to grant to specified individuals access to your medical records for designated purposes. It is wise to also have a backup HIPAA Authorization that can be used if needed.
While Wills and Trusts are the estate planning documents that receive the most attention, Advance Directives and well-drafted powers of attorney are also critical. An appropriate HIPAA Authorization may be the key needed to help unlock the power of your estate planning documents that you have so carefully prepared.
Last week I wrote about divorce and how that impacts your Will and your overall estate plan, so it is only fitting that I write this week about how marriage affects your Will and your estate plan.
Under Oregon statutes, if you have an existing Will, and then get married, and you are then survived by your (new) spouse, then your Will is automatically revoked by statute (with two exceptions). This is a shock for most people. It can be years later when they come into my office and find out that the Will they thought they had in place all of these years may ultimately not be honored. The usual solution is to create a new Will or Revocable Living Trust for them.
The exceptions to the automatic revocation are if: 1) the Will evidences an intent that it not be revoked by the subsequent marriage, or was done in contemplation of marriage; and 2) the person making the Will and his or her (new) spouse make a contract before their marriage (such as a prenuptial agreement) that either provides for the spouse or indicates that they will not receive any part of the estate.
So if a person is contemplating marriage, and wants to complete a Will prior to marriage, we can add in language to the Will that will keep it in effect despite the upcoming marriage. In other words, we can overwrite the normal statutory revocation of the Will.
In contrast to a Will, a Revocable Living Trust is not automatically revoked by the subsequent marriage of the settlor/trustor (the person who set up the Trust), unless otherwise stated in the Trust document itself.
Also, keep in mind that with marriage there may be name changes and other changes that need to be integrated into your estate plan.
The rules surrounding Wills and Trusts can be complicated and counter-intuitive, and you are well advised to seek help from a competent attorney. Also, the above rules are just another indication that when you have any major changes to your estate plan, such as a marriage, death or divorce, you need to check with your attorney to see if any changes need to be made. Taking care of your loved ones, even after you are gone, will be one of the greatest legacies you leave behind.
Divorce is a tough situation to go through. This is a time in your life when you need to reconsider what might happen if you were ever incapacitated or passed away, and establish a comprehensive estate plan that will carry out your wishes and will name those you trust to make decisions for you.
A few things to consider about how a divorce might affect your existing estate plan:
If you already have a Will, your ex-spouse will be treated as having predeceased you. In other words, your ex-spouse would no longer be the personal representative (executor) under your Will even if he or she is named as such, and would not be a beneficiary of your estate, even if the Will said otherwise. You should carefully consider whether you should name different or additional personal representatives and beneficiaries.
Your divorce decree may require that you include certain provisions in your Will, or that you have insurance policies with specific beneficiary provisions. Also, keep in mind that a subsequent marriage revokes your existing Will unless your contrary intent is clearly indicated.
In addition, there are a number of documents you may have in place that give your ex-spouse certain authority or rights with regard to your finances or health care that you may now wish to change. These may include a Power of Attorney, HIPAA Release, or Oregon Advance Directive.
If you have children, attending to their needs is a top priority. If your children are young or have special needs or should not be given a substantial sum of money for some reason, you will probably want to include carefully worded trust language for them in your Will or Trust, and will want to carefully choose the trustee and the successor trustee who would administer those trust funds. Your ex-spouse may or may not be the best choice to handle such trustee duties. You should also indicate in your documents who you would want to be the guardian for your children if you were not able to care for them. The guardian is the person who would be appointed by a court to make decisions about your children’s health care and where they live, and to make sure that their non-financial needs are being met.
The estate planning considerations mentioned above are not meant to be a complete list. If these considerations, together with all of the other considerations mentioned in this guide, are a bit overwhelming, the good news is that you do not have to handle all of these changes alone. There are professionals who are trained to help you and guide you through these important tasks. A competent estate planning attorney, for example, can sit down with you and help you decide whether you should have a Will or Trust, who should be in charge of the children if something happened to you, and which of your estate planning documents should be updated given your wishes and given the existing law at the time. While attorneys are not cheap, their advice can be invaluable, and they can help you create an appropriate estate plan that will give you peace of mind and will help meet your wishes no matter what the future holds.