Wills, Trusts, Power of Attorney, Advanced Healthcare Directive, HIPAA
Estate Planning allows you to control your property while alive and able, to protect yourself and family in the event of disability, and to give what you have to whom you want, the way you want, and when you want while minimizing applicable taxes and fees. The foundational plan consists of a will or revocable trust coupled with documents that address times of disability: (Durable Power of Attorney, Advanced Healthcare Directive, and HIPAA Release.) In the short term, these three documents are the most important to have in place. Otherwise, if you become incompetent and these documents are not in place, the family will likely have to file for guardianship.
Key documents defined:
Will: Is effective at death and applies to probate property that is titled in the name of an individual.
Revocable Trust: A trust is a contract between the Grantor (person transferring assets to the trust) and the Trustee (person who has legal title to the trust assets). It defines the relationship between the Grantor, the Trustee, and the beneficiaries (people who have access to the assets). Revocable means that the Grantor can change the terms of the trust and can also remove assets from the trust without any other person’s consent. Its main purpose is to allow the Grantor’s estate to avoid the full formal probate of his/her estate at death.
The probate process is stressful for the executor, takes approximately one year to complete, a 1.75% probate fee applies (1.25% in Sussex County), and the legal costs and fees can be substantial. An effective way to avoid probate is to put in place a revocable trust based plan. You remain in control of your assets at all times as trustee and sole beneficiary of the trust. This arrangement avoids probate because you will own title to your assets as trustee and not as an individual. The administration of the resulting small estate is typically much shorter, attorney fees are much less, there is not a probate fee, and the trustee finds the process much less stressful.
General Durable Power of Attorney: Names a designated person to act as agent to make business and financial decisions during times of disability. Important powers for the agent to have are the ability apply for government benefits and the ability to protect assets for qualification purposes.
Advanced Healthcare Directive: Names a designated person to make healthcare decisions for the disabled person and allows a person to put in writing how they want certain end of life decisions handled.
HIPAA Release (Health Insurance Protection and Accountability Act of 1996): A standard legal document authorizing medical personnel to release medical records to a specific person.
Many people believe that estate planning is nothing more than a way to determine “who gets what” when you pass away. While this is of course part of it, comprehensive estate planning provides for much more than just the distribution of assets. A good estate plan, whether revocable trust based or will based, designed and implemented by an attorney who focuses on this area of law, can address a number of needs, including the drafting of a Power of Attorney, establishment of guardians for children, the creation of a variety of trusts, revocable, irrevocable and special needs trust, or the instructions for end-of-life medical care (advanced healthcare directive, living will, and HIPAA release). In addition, the lack of a comprehensive estate plan could lead to disputes among beneficiaries, inadequate protection of your assets from taxes or penalties, guesswork on medical decisions, or the loss of governmental benefits.
Whether your estate is large or small, we understand that it is the product of hard work, sacrifice, careful planning and good decision making. At the Delaware Elder Law Center, we take an inclusive approach to estate planning and provide a full range of services to meet your needs. We will work closely with you to create a complete, comprehensive plan to protect you during times of disability, preserve your wealth, and ensure that your wishes are carried out. Contact us today for a consultation to discuss your unique situation, needs and goals.