Estate Planning Documents and Medicaid Planning

The conversation that you have with an estate planning attorney, when you are in your thirties with a new house, young children, and many years ahead of you is different than the one you’ll have when you are much older, maybe just before you retire. The estate planning attorney will know that you are about to enter a time in your life, when the legal documents you prepare are more likely to be used, says the article “Learn about legal documents and Medicaid” from the Houston Chronicle.

It should be noted that everyone needs an estate plan at any time of life, so they may state their wishes for how assets are distributed and name a person who will speak in their behalf, in the event of incapacity because of an illness or injury. Long term care concerns require a discussion of Medicaid.

An estate plan also includes a power of attorney, so someone you chose can serve as your agent to transact business and handle your financial matters. There should also be a declaration of guardian, in the event of later incapacity and a HIPAA medical authorization document. In some instances, a designation of remains is prepared in order to name an individual who will be the appointed agent to care for the body at the time of death.

However, there’s another reason why you’ll need to meet with an attorney at this time. As we get older, the need to address long term care becomes more important. Making the right decisions now, could have a big impact on the quality of your retirement and your later in life medical care.

If you have not updated your will or your powers of attorney, specifically a durable power of attorney for property, it would be wise to do so now. You will need a document to clearly authorize your agent to deal with assets for Medicaid Planning. Any documents that are out of date, or in which named agents have predeceased you, won’t be effective, leading to problems for you and your heirs.

The document may also need to include a broad gifting power for your named agent, so assets can be transferred out of the estate. If this detail is overlooked, the agent may not be able to protect your assets.

This is the time when you may want to take steps to protect your children upon your death or upon the death of the second parent. If your goal is to eliminate assets to be eligible for Medicaid coverage, this planning needs to be done well in advance. In numerous states, there are state administered programs that pursue recovery of assets when a person has received Medicaid benefits.

Your attorney will be able to work with you and your family to address your specific situation. It may be that your estate plan will include trusts, or that certain assets need to be retitled. Meet with an estate planning attorney who is familiar with your state’s laws. And don’t procrastinate.

Reference: The Houston Chronicle (April 19, 2019) “Learn about legal documents and Medicaid”

 

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Property Transfers and Gift Taxes: Estate Planning Basics

As we age, our needs change. That includes our needs for the property that we own. For one person, the family home was rented to the daughter and her spouse as a “rent-to-own” property. This is generous, since it gives the daughter an opportunity to build equity in a home. The parent had questions about what kind of a deed would be needed for this transaction, and if any gift taxes need to be paid on the gift of the house and a separate parcel of land. The answers are presented in the article “Dealing with property transfers and gift taxes” from Chicago Tribune.

For starters, there are tax advantages while the person is living, since the home is an investment for the owner, as described above. On the day that the home is deeded over to the daughter, she will own the home at the cost basis of the parent. Here is why. The IRS defines the “cost basis” of a real estate property as the price that the owner paid for it, plus the cost of purchase and any fees associated with the sale plus the cost of any new materials or structural improvements.

When you give someone a home, they receive it at the price that was paid for it plus these costs.

Let’s say this person paid $50,000 for the family home, and it’s now worth $100,000. If you give the home to a family member, it’s as if she paid $50,000 for it, not $100,000. There may be tax consequences when she goes to sell it, but that’s in the distant future.

It’s different if the home is inherited. In that case, if the house was valued at $100,000 on the date that the owner died, the heir’s cost basis would be $100,000. However, if the heir sold the property on the exact same day (this is an unlikely scenario), there would be no tax owed on the sale for the heir.

This is a very simplified explanation of how a home can be passed from one generation to the next. It would be best to speak with a good estate attorney, who can evaluate all the factors, since every situation is different. One suggestion might be to put the property into a living trust, in which case the daughter will still pay rent to the parent, but then would inherit the property when the parent died.

The estate planning attorney could use the same living trust for the separate parcel of land. Once the home and the land are deeded into the living trust, the owner can state her wishes for how the properties are to be used.

As for the question of gift taxes, anyone can give anyone else $15,000 per year, with no need to file any forms with the IRS or pay any taxes. If you give someone more than $15,000 in one year, the IRS requires a gift tax form with the federal income tax return.

A meeting with an estate planning attorney is the best way to ensure that the transfer of a family home to a family member is handled correctly and that there are no surprises.

Reference: Chicago Tribune (April 23, 2019) “Dealing with property transfers and gif

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Senior Living – How to Start the Process of Moving

When you have a close relative or friend who might benefit from moving into a development for aging adults, you might not know how to go about getting from where he is now to settling him into the community of his dreams. Everyone’s situation is different, and you should do what is appropriate, but it can help to have a few pointers on how to start the process of moving into senior living.

Getting the Family Involved

https://www.parkertrustlaw.com/family-relationships-mess-up-estate-planning-ask-an-estate-planning-lawyer/You should not try to handle everything on your own, if there are other family members who can shoulder some of the responsibility. Taking on the project of getting your aging relative moved into assisted living can be exhausting. Doing all this by yourself can also create resentment and suspicion among your siblings and other close relatives. Your family members should all have input into the many decisions this move can generate. It is easier on everyone, if the family can work together amicably.

At the family meeting, you and your family need to agree on who will be the point of contact for the senior living center. Your family might need to designate one person to be the decision-maker, particularly if your aging relative has cognitive decline or a condition like Alzheimer’s disease.

Some families split up the duties, with one person handling medical decisions, another person taking care of insurance issues and another managing the loved one’s finances. Whenever possible, you should have at least two people looking over the bank statements, investments, payment of bills and other financial matters.

Doing Your Homework

Your older loved one will likely have many questions about senior living centers. You should educate yourself on the details of several facilities, so you can answer her questions. After you find at least three developments, pore through their websites and then take a tour of each center.

Having the Conversation

Some people start with this step, but you really should have a grasp of the options available for your loved one before sitting down to talk. You need to collect the information to answer her questions.

Jot down some questions you anticipate your loved one will ask – an informal FAQs list. Ask the questions when you tour each senior development. When you feel you have enough information to respond to the questions you anticipate, then sit down with your aging loved one and “have the talk.”

Develop a Plan

The conversation does not have to end with your loved one going into assisted living immediately. If he is angry or upset about moving into a senior community, give him a little time, as long as he is not in danger while continuing to live in his own home.

You should have a plan, but that plan could be that you will tour three facilities and then sit down and talk again in six months. If things change in the meantime, you could revisit the topic before the six months are over.

If your aging relative wants to go forward, you could set up a plan that covers these topics:

  • Touring at least three developments initially.
  • Talking about what your loved one liked and did not like about each location.
  • Finding several more facilities to tour, tailored to your relative’s preferences.
  • Asking the centers you visit for a list or brochure about the steps a senior needs to complete, like selling the house, packing, and moving, to make the transition from the family home to a senior development center.
  • Go over the list with your loved one and family members to distribute the work equitably among everyone.

Talk with an elder law attorney in your area about any insights or experiences he or she may offer. Before signing a contract with a facility, have the attorney review it for your loved one.

References:

A Place for Mom. “Having the Conversation” (accessed April 14, 2019) https://www.aplaceformom.com/planning-and-advice/articles/having-the-conversation

 

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Kids Going to the Mom and Dad ATM One Time Too Many?
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Kids Going to the Mom and Dad ATM One Time Too Many?

Parenting is supposed to be a process of teaching children how to be self-sufficient. However, it’s not always easy to go from being dependent on parents to being independent. If you think you’re still doing too much, says Newsday, you need to ask “Good to Know: Are your grown-up children taking advantage of you?”

Plenty of parents don’t know what to do when they are asked too many times for too many financial favors. They may feel pressured to agree, worried that they may see their grandchildren or their children less, if they say no. That’s a bad reason for generosity. If the parent is asked to co-sign for a large purchase, like a home or a car, they need to put the brakes on and discuss this thoroughly with their child. It may also be a good idea to speak with an estate planning attorney, for an objective viewpoint.

There needs to be recognition of the child’s creditworthiness. Have they borrowed money from their parents or other family members and failed to pay it back completely, or made only partial payments, and only after being reminded repeatedly? Don’t expect behavior to change. Parents facing this example also need to discuss this between themselves. They should only “lend” money that they can afford to lose.

If the child has been turned down for credit through regular financial channels and the bank of Mom and Dad is the only option, find out why. Ask them for a credit report and be transparent about your concerns. Can you afford to pick up the mortgage payments, if the child fails to make them? What about car loan payments?

Taking advantage of parents can extend past money. Some families welcome their grandchildren with open arms for unlimited times. However, if you find yourself babysitting on weekends and several week nights during the week, it’s time for a discussion. For one family, whose son was interested in spending time with a new fiancé more than with his two toddlers, the situation went on for nearly a year, until the parents gathered the courage to speak up.

They added up all the time they were spending each week taking care of the children. It turned out that they were watching the children for fifteen hours or more each week. This was discussed calmly. They then made it clear that they were happy to continue caring for the children, but for a far more reasonable period of time.

If you feel that your children are taking advantage of you, you’ll need to have a discussion in a calm and reasonable manner. If there are financial matters that are spinning out of control, speak with your estate planning attorney about how to create a plan to stop the flow of money. Elder financial abuse sometimes begins as a “favor.” However, it can escalate, if it is allowed to grow unchecked.

Reference: Newsday (April 14, 2019) “Good to Know: Are your grown-up children taking advantage of you?”

 

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Why Do I Need an Executor?
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Why Do I Need an Executor?

What would happen if someone you were close to, asked you to be their Executor? Would you be honored, or would you be uncomfortable with the responsibility? What do you need to do, when do you need to handle these tasks and how much time will it take?

These are the questions often asked about the role of an Executor, as reported in The Huntsville Item in the article “Role of an executor.”

A person having a will prepared is called the “Testator” if male and a “Testatrix” if female. The person they appoint to take care of distributing their assets and carrying out the instructions in their will is called the “Executor” if male and the “Executrix” if female. That person also pays the estate’s debts and taxes. Note that the debts and taxes are not paid from the Executor’s personal accounts, but from the proceeds of the estate.

The Executor has several responsibilities and power. Therefore, it’s important to choose an individual who is organized, good with finances and knows how to get things done. An Executor could be a person or an institution, like a bank. Here are some things to consider when selecting an Executor:

  • Are they good with handling their own personal business?
  • Do they have some familiarity with your business, finances and property?
  • Are they willing and able to act as your Executor?
  • Do they have the time to devote to serving as Executor?
  • Can they work with your estate planning attorney and your accountant?
  • If you own a business, will they be able to keep it going during a transition period?

There should always be a Plan “B” and perhaps even a Plan “C,” if the first person you wish either cannot or will not serve as Executor. If you do not have a Plan “B” or “C,” the court may name an Executor. That may be a person you don’t know, who does not know you, your family or your business.

The Executor’s tasks vary, depending upon the laws of the state. However, in general, these are the Executor’s tasks. Note that an estate planning attorney usually assists with this process.

  • The will is probated, which requires filing an application with the probate court in the decedent’s jurisdiction.
  • The court issues Letters Testamentary to the individual designated in the will as the Executor.
  • A general notice is given to unsecured creditors within 30 days of being appointed Executor.
  • Notice is given to each secured creditor, by certified or registered mail.
  • Documents need to be gathered, including insurance policies, bank statements, income tax returns, car titles, leases, home deeds, home titles, mortgage paperwork, property tax bills, birth, death and marriage certificates and unpaid bills.
  • The post office, relatives, friends, employers, insurance agents, religious, fraternal, veterans’ organizations, unions, etc., all need to be notified.
  • The personal property of the estate needs to be collected, preserved and appraised.
  • The residence needs to be secured and maintained, including a review of insurance coverage.
  • An inventory of the estate’s assets needs to be prepared.
  • The Executor needs to apply for Social Security benefits and an employee identification number (EIN) for the estate’s bank account.
  • Once the EIN number has been created, open a bank account on behalf of the estate and pay all valid debts from the estate account.
  • Determine any tax liability and prepare for a final tax return to be filed.
  • Distribute the assets and property of the estate, according to the directions in the will.

Usually the estate planning attorney handles many of these tasks and works closely with the Executor. Some Executors are compensated by the estate for their time and effort, but that is not always the case. Talk with your estate planning attorney in advance, about any compensation for your Executor.

Reference: The Huntsville Item (April 13, 2019) “Role of an executor”

 

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Advance Care Directive Protects You and Your Family
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Advance Care Directive Protects You and Your Family

Advance Care Directive – Imagine yourself in the intensive care unit of a hospital after a major stroke or heart attack. Doctors aren’t sure if you are going to live or die, and if you do live, they’re not sure if you will be able to recognize or interact with family and friends.

Do your loved ones know what your wishes are in this situation?

There is simply no way to know when a sudden health event or an accident could render a person unable to communicate, advises The Advocate in the article “If you were on death’s door, what happens next? Advance care directives can make sure that your wishes are carried out.”

When you are not able to speak, you can’t tell loved ones that you’ve had a good life and you are okay with letting go, or if you want to fight to stay alive, no matter how invasive the process may be.

That’s why you need an advance care directive. Anyone over age 18 needs to give this some thought and then take the next step and have the necessary document prepared. It’s a good idea for anyone over age 18 to have a will prepared as well, especially if they own a home, car or have personal property they would like to pass along to any specific people.

The second part of advance care is to name a person as your health care power of attorney. That person will be in charge of making medical decisions when you cannot. People typically name their spouse, but that’s not always the best option. An honest assessment of how your spouse responds during an extremely emotional crisis needs to be made. It’s possible that you may be better off naming a trusted friend.

Here are the steps to follow for Advance Care Planning with an advanced care directive:

  • Identify someone who will take on the role of health care power of attorney.
  • Reflect on your values and beliefs and what living well means to you personally.
  • Consider religious, spiritual, or personal beliefs and how they align with your end of life wishes.
  • Share your decisions with the person you wish to take on the role of health care power of attorney.
  • Make sure that person is able and willing to carry out the duties, even if the family or other people feel opposite of your wishes.
  • Meet with an estate planning attorney to document your health care power of attorney.

While you are attending to creating an advanced care directive, speak with the estate planning attorney about having a will and a power of attorney created. Once these documents are taken care of, you and your family will be better protected, in the event of an unexpected tragedy.

As time goes by, the people you have chosen for these roles may age or your relationship with them may change. Every now and then, check in with them to ensure that they are still willing and able to handle the responsibility of an advanced care directive and power of attorney.

Reference: The Advocate (April 14, 2019) “If you were on death’s door, what happens next? Advance care directives can make sure your wishes are carried out”

 

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The Big Problem with Do It Yourself Wills
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The Big Problem with Do It Yourself Wills

An estate planning attorney would much rather not see a family undergoing unnecessary stress and expenses. Do it yourself wills and on-line wills very often create problems for families, as reported in Next Avenue’s aptly-named article “The Problems With Do-It-Yourself Online Wills.”

The article reports that one DIY estate planning service had three different “packages” that consisted of the same document, just with different names. Those packages were also missing a key estate planning document that the average person would not know to ask about. Even attorneys who do not practice estate planning law, know to work with an estate planning attorney for their wills.

For those with complex financial and personal lives, a DIY service may not be able to address the estate planning issues. If you have over a certain level of assets, do you want to risk making a costly blunder that would easily be prevented by working with a skilled professional?

Think of it this way: there are some people who can have their taxes done online, because they receive simple tax forms from their employer. If there’s a mistake, the IRS sends a letter and they may have to pay a penalty or pay the taxes that were not paid properly. Simple, right?

If your estate plan doesn’t work, you’ll never know. However, your loved ones will, and they’ll be the ones to have to make things right.

Good estate planning is all about expressing our wishes. The documents that are prepared and the process of decisions about our wishes accomplish a number of tasks:

  • Avoids court intervention in your family’s life,
  • Reduces administrative confusion, and
  • Reduces or eliminates unnecessary fees and delays.

The four basic planning documents are: a will, power of attorney for financial matters, an advance health care directive and if needed, a trust. If you expect to use any of these through a DIY website, expect to use a “fill in the blank” approach. Remember that every state has its own laws governing probate. Are you sure that the forms you are filling out are acceptable in your state?

Other DIY sites have some documents, but only if you purchase a high-end package. Others offer attorney consultations, but some consider an attorney consultation to be a series of questions and answers through an online app with pre-written responses, and not a real attorney.

The problem with DIY wills, is that we don’t know what we don’t know. We may know who we would like to receive our assets, but not what our state law requires to make that happen. Case law about estate distribution and probate is not something an average person knows. That’s why it makes more sense to speak with an experienced estate planning attorney. They will be able to create an estate plan based on knowledge and skills, that come about only after practicing in this area of law.

Reference: Next Avenue (March 29, 2019) “The Problems With Do-It-Yourself Online Wills.”

 

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Here’s Why You Need a Health Care Directive
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Here’s Why You Need a Health Care Directive

Advance health care planning comes into play, if a person becomes incapacitated, whether that status is permanent or temporary. This is part of a comprehensive estate plan, and why you’ll want to take care of this before something occurs. That’s the recommendation from the McPherson Sentinel article “Advance health care directives important to all adults.”

Documenting your wishes about future health care lets a cognitively healthy person express their wishes with a clear perspective. Unfortunately, only one in four American adults has their advance health care directive in place. Many wait to begin the planning process, until they are in their 50s or 60s. The problem is, life doesn’t have a plan. At any time in life, tragedy can strike. A serious illness or an accident can occur, and leave the family wondering what the person would have wanted.

The most common advance directives including a durable power of attorney for health care, living will, and pre-hospital do not resuscitate directive, known also as a “DNR.”

The durable power of attorney for health care allows you to name a person to make medical decisions for you, in the event you cannot. They are also referred to as a “medical power of attorney” or “health care agent.”

This is different than a durable power of attorney, which gives a person the right to act as another person’s agent and conduct all business and financial matters on their behalf.

It’s very important that the people you name to fulfill these roles are told that they have been named. They need to fully understand what your wishes are, what kinds of treatments are and are not acceptable for you, your preferences for doctors and where you would like the treatment to take place.

If you live in a small rural town that does not have specialists, and there is a hospital nearby that offers excellent care, your durable power of attorney for health care can include your wish to be taken to the hospital to receive more specialized care.

The person selected will need to be trustworthy and have the ability and willingness to communicate your wishes, even if family members don’t agree with your choices. They will need to follow your wishes, even if they are not the same as their own.

Keep family dynamics in mind. If a younger sibling is selected to be your health care agent and they have been dominated throughout their life by an older sibling, will your wishes be honored, or will they become the subject of an extended argument?

A living will is a document that details the type of care you want to receive at the end of life. It explains your wishes about accepting life-sustaining procedures, like being placed on a ventilator, receiving artificial nutrition and hydration, if at least two physicians deem that your condition would otherwise be terminal.

These documents should be prepared for you as part of your overall estate plan, with the guidance of an estate planning attorney. Be aware that the laws vary from state to state, so you’ll want to work with an attorney who knows your state’s laws. If you relocate to another state, you will need to have your estate plan updated to ensure that it is still valid.

Finally, make sure to tell several people about these documents, and have the health care documents located in a place, where they can be easily found in an emergency. If you keep them in a bank safe deposit box, it is unlikely that they will be found in a time of crisis.

Reference: McPherson Sentinel (April 17, 2019) “Advance health care directives important to all adults”

 

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How ABLE Accounts Work for People with Disabilities

People with disabilities and their families face large financial hurdles. For many years, they were not permitted to accumulate any assets, or even work part-time, without losing Supplemental Security Income (SSI) or any means-tested government benefits. However, with the introduction of the “Achieving a Better Life Experience” or ABLE account in 2016, children or adults with disabilities may save as much as $100,000, without putting their benefits at risk. And, according to Consumer Reports, in the article “ABLE Accounts Can Help People with Disabilities Save Tax-Free,” the accounts are now available nationwide.

Anyone, including the beneficiary, can contribute to these accounts, up to the $100,000 limit. However, there are some people who may be able to put even more money into ABLE plans, as a result of the 2017 tax law change. Eligible individuals who are employed may earn up to $12,140 without endangering their benefits, as long as the funds are put into their ABLE account. And those who also have a 529 college savings plan, can roll that money into an ABLE account.

These are improvements, says experts in the disability world. However, making more eligible people aware of these accounts is a challenge. Without access to an ABLE account, a person with disabilities who has more than $2,000 in a savings account might lose out on essential services, including SSI and Medicaid.

Special needs trusts have long been available to help disabled individuals or their families put aside money, but the cost to set them up is higher than simply opening an ABLE account.

Research shows that there are about 8 million disabled individuals who are eligible for ABLE accounts, but at the end of 2018, there were only 35,000 ABLE accounts, with more than $170 million in assets.

There are some limitations to ABLE accounts. The disability must have occurred before the person turned 26. Since 2016, bills have been introduced into Congress, including some new legislation that is before both the House and the Senate, that would raise the qualifying age to 46. However, it’s not yet clear whether this amendment is going to get enough support to pass.

There is good news for those who have had a diagnosis prior to turning 26 and are already receiving SSDI (Social Security Disability Insurance) or SSI. They automatically qualify. If you aren’t receiving those benefits but your disability fits with Social Security’s criteria, most plans actually let you certify yourself. You just need a doctor’s note and a date of diagnosis. Be prepared to have to prove that in the future.

Like college 529s, you don’t have to live in the state where you open an account. Any plan that is nationally available can be used. There are now more than 40 state plans, and only a few are limited to state residents. The account can be opened by a parent, guardian, or person who has power of attorney for a disabled person or a minor.

Unlike 529 plans, there can only be one account for one person.

The most you can save every year is $15,000.

The total able account balance can grow to $100,000, without triggering an SSI benefit loss. However, if that limit is exceeded, the SSI payments will be suspended until the account falls below the limits.

If you are not receiving SSI benefits, you can save up to the 529 limit for the state, which is usually $350,000 or more.

The money is intended to be spent on qualifying expenses, which are things that enhance a person’s health, well-being and independence. Typical qualifying expenses include basic living expenses, education, career training and assistive technology

An estate planning attorney, who works with Special Needs families to create estate plans that incorporate Special Needs Trusts (SNT), will be able to provide guidance, so that the ABLE account aligns with the overall estate plan for the family.

Reference: Consumer Reports (April 11, 2019) “ABLE Accounts Can Help People with Disabilities Save Tax-Free”

 

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Healthcare Proxy – How to Decide Who Should Pick?
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Healthcare Proxy – How to Decide Who Should Pick?

It’s especially important to name a healthcare proxy, because the chances of having a crisis escalates dramatically as we age. That’s why so many people put off naming a healthcare proxy, says Forbes in the article “How to Select A Healthcare Proxy,” often only addressing this, when they are completing other documents for their overall estate plan.

What usually happens is that people get so stressed out about naming a healthcare proxy that they put it off or make a bad selection. Making it even worse, is neglecting to tell the person they have chosen for this important responsibility.

It’s not guaranteed that the person you chose as your healthcare proxy will ever be called on to serve. However, if they are, you’ll want to make sure they meet certain guidelines. For one thing, they’ll need to be at least 18 years old. They cannot be your direct health care provider or any of the direct health care provider’s employees, unless that person is also your spouse. They have to be willing to speak up and adhere to your own wishes, even if those wishes are not the same as their own. You’ll want to have a very candid conversation with the person you think you want to name as your healthcare proxy.

You might want to go through this exercise to make sure they are really willing to carry out your wishes. Create a worksheet that describes in detail some of the situations they may face. There are a few sources for this kind of worksheet, including one from a group called Compassion and Choices, a nonprofit centered on helping people get what they want at the end of their lives.

If you are close with your family, it may seem obvious to select your spouse, first-born child, or a sibling for your healthcare proxy. However, be realistic: when push comes to shove, will they be able to stand up for your wishes? Will they be able to deal with the fallout from family members, who may not agree with what you want at the end of your life? They’ll need to be up to the challenge.

Age is a real factor here. You want your proxy to be available in both the immediate and distant future. If you have a sibling who is only two years younger than you, she’ll be 84 when you are 86. That may not be the time for her to make hard decisions, or she may not be available—or alive. Select a few backups for your healthcare proxy, and make sure the primary, secondary and even tertiary are listed on your advance directive.

Geography also matters. The person may be called upon in a crisis—if you are on the West Coast and they are in the Midwest, will they be able to get to your bedside in time? Many hospitals and skilled nursing facilities require a live human being to be physically present, if critical care decisions need to be made. Someone who lives within a 50-mile radius of you, might be a better choice for your healthcare proxy.

Once you’ve made the decision, you’re almost done. Have a conversation with the person, whether they are the primary or a backup. You should also have a conversation with your estate planning attorney, to make sure that your healthcare directive and any related documents are all set for your future.

Reference: Forbes (April 10, 2019) “How to Select A Healthcare Proxy”

 

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