How Psychedelic Drugs Can Help Patients Face Death & What it Means to Estate Planning Effected Towards the End

I recently read an article in the New York Times (read article here: http://nyti.ms/Kp9yct) about a study using Psychedelic Drugs to help patients cope with facing death as the result of a life-ending diagnosis, like cancer.  In the article it indicated that these end-of-life researchers only included otherwise healthy patients, those with no indication of mental illness, in the study.

These drugs are also being examined as treatment for alcoholism and other addictions.  While I can see the advantages of such treatment for those facing the end of their lives due to grave illnesses, it also makes me very aware of how this might affect the ability for someone to consider and finalize their estate planning needs at a time when they are not only facing their own demise, but while under the influence of psychedelic drugs.

Could this open up their decisions to scrutiny after their death?  Even though they are otherwise considered of sound mind, does this open the door for others to challenge a person’s Will or other estate planning functions finalized after such diagnosis, and while using psychedelic drugs.

I am an advocate for putting your affairs in order early on, long before you might be facing something like this, but the reality is, even if plans had been made, depending upon the individual situation, such a diagnosis could cause someone to rethink or alter their plans.

It seems like we would need to take some sort of extra steps during this process to make sure we can forego any challenges that could or would be made to change your final wishes.  I’m not exactly sure what that might look like, how we could provide verification of your ‘sound’ mind at such a time.

What do you think?  Leave your comments or questions below and expand the discussion!

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

Gifting Ownership of the Vacation House: A Gift or a Curse?

Ben Franklin once said that fish and houseguests smell after three days. But what if the houseguest co-owns the house? The perils of the vacation home, what to do with it, who should own it and what the rules are can be a source of family satisfaction and family conflict.

Under current law, the 2012 federal gift exemption is $5,120,000. Since many parents and grandparents are uncertain of their economic future, they may not want to gift assets that still earn income. Nor do they want to give away assets that have a low income tax basis that may be sold in the future. For these families, the vacation home is an attractive asset to consider gifting.

Gifting the vacation house to the next generation, or to a dynasty trust for the benefit of subsequent descendants, can remove that home (and any appreciation in its value) from the taxable estate. But before heading down that path, homeowners must carefully consider how that home will be owned post transfer.  We will explore three options: (i) outright ownership, (ii) an irrevocable trust (which could be a dynasty trust), and (iii) a family limited partnership or a limited liability company.

Outright Ownership

Often, the choice of making an outright gift of the vacation home is not appealing, whether the next generation owns the property as tenants in common, or as joint tenants with a right of survivorship. Many states have the right to compel a sale of that asset through a court proceeding, so the ownership of the home may be divisible in a divorce and subject to that family member’s creditors.

Also, family issues and resentments may develop with co-ownership. The child who lives out of state and never uses the home may resent sharing the expenses. Plus, with each generational transfer, the ownership becomes more fractionalized and the ownership of the asset is included in the taxable estate of each subsequent generation. There could also be conflict, such as who uses it the week of July 4th? Who pays for maintenance? Should rent be charged to cover expenses?

Irrevocable Trust (could be a dynasty trust)

A more appealing option for many families is transferring ownership of the home to an irrevocable trust. To complete the gift, the trust must be irrevocable, meaning that the donor cannot retain the ability to change, amend, or revoke its terms. The art of drafting an irrevocable trust is to remember that life is a movie not a snapshot, and that the document, while irrevocable, must also be flexible enough to contemplate the future.

The trust should address what happens to the child’s share at his or her death, whether or not the child’s spouse or stepchildren can continue to use the property in a divorce, or if the child predeceases his or her spouse. It should also address who is responsible for paying expenses, the line of succession of trustees, how the home should be furnished or updated, whether nonpaying guests may use the property, and who sets the rules for using the property.

Reasonable rules include who can use the property and when, the process for how that determination is made, whether use can be exclusive or must be open to all families all the time, payment of operating expenses, noise, cleanliness, pets, number of people, who pays for landscaping, parking, whether the property can be rented to nonfamily members, and other issues affecting the use and enjoyment of the property. The trust document can also address who has the right to determine the operating reserve and when income and/or principal may be distributed to the beneficiaries.

It may be also helpful for the donor to state intent – perhaps the use of the property is not intended to be equal, but based on relative degrees of interest in and ability to enjoy the property, and to take into account relative contributions (financial or otherwise) to its maintenance and improvement.

The document may also include a buyout provision by which one beneficiary (or beneficiary’s family) can sell his or her interest to other family members. Many families do not allow family members to cash out of their share in the home. An advantage to restricting what a family member can do to convert his or her share to liquid funds provides additional creditor protection and also helps keep that interest out of the taxable estate of subsequent descendants.

The trust should also address the mechanism by which a decision can be made to sell the home – should a decision that important be left only in the hands of the trustee? Should it include the trustees and all adults in the next generation? Should the vote be by majority or unanimous? The tension in that choice is that one family member who wants to use it more than others may block the sale for personal gain.

It is important to fund the trust with enough liquid assets to cover ongoing expenses and trustees. Future family discord might be avoided if family members who do not use the property are not expected to help cover its expenses. The funding can occur during the donor’s lifetime or at his or her death, through the donor’s estate plan. Once the property is transferred to the trust, the trustees should ensure that the property has sufficient property and casualty insurance coverage.

The trust document should also address the duration of the trust. It could end at a certain date, when the underlying asset is sold, when the trustees decide to end it, when the trustees and all adult beneficiaries agree to end it, when the Rule Against Perpetuities Period ends it, or if it is governed by a state that does not have any Rule Against Perpetuities, then it may never end.

Family Limited Partnership or Limited Liability Company.

A third choice is transferring the home to a family limited partnership or limited liability company, where the terms of the operating agreement control how the property is used. These entities are more businesslike than a trust, as they are members or partners. They offer the same benefits of the irrevocable trust, but may be more flexible. The operating agreement can provide a mechanism that allows it to be amended. If the entity is underfunded, the manager or general partner can make a capital call on the owners to contribute additional funds to the entity. As with the trust, the agreement will appoint a manager or management committee. The ownership structure can have two classes- voting and nonvoting. The transfer of ownership through sale or gift can be restricted.

Another benefit to gifting in this manner is that the valuation of the gift may have additional leverage and qualify for minority discounts or lack of marketability discounts. If the gift is not made all at once – but rather over several years – then all gifts are made off the record of the respective Registries of Deeds. In other words, the transfer to the entity is recorded initially, but ensuing gifts are transfers of the units or shares in the entity and are done within the entity itself, not in the Registry. This can save annual recording fees.  Additional benefits include income tax consequences in that each owner may have the benefit of the income and deductions flow through to his or her individual income tax returns.

Summary. Gifting the vacation house this year while the federal exemption is so high may be a very wise move. It is important for clients to think through their choice of entity and the considerations mentioned above before making this irrevocable decision.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com

Woman to Wed Slain French Soldier Posthumously

Yes, you read that correctly.  It got my attention, too!  Here’s a link to the entire article:  http://www.guardian.co.uk/world/feedarticle/10161149

In a nutshell, under certain circumstances, the French President is able to approve such a marriage for several reasons, this one being because his widow is pregnant and the marriage will serve to give his unborn child a father.

What came to mind for me is how shocking this is and how something like this here would dramatically affect the way we look at estate planning. When you consider the ramifications of this type of unusual ceremony, it’s impossible to contemplate what else the future may hold!

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

Donor Education – Why Effective Donor Education Programs Are Important

One of the most effective ways to educate donors and help them achieve financial literacy is through sustained and focused donor education programs. The process of understanding the power of philanthropy and how it works best for a donor’s goals and objectives takes time. When donors learn together, share their ideas and understand what other donors have done and are doing, they become more comfortable with the process.

Donor education programs which focus on philanthropy and related topics, such as financial issues for women, can teach both men and women how to achieve the joy of giving while living. Your institution can incorporate into the donor education event faculty and student presentations which integrate messages into the mission of your institution. These programs can help differentiate/distinguish your institution and create deeper relationships with donors, alumnae, and alumni spouse (Women’s Philanthropy Institute 2009, 15). (8)

Effective donor education, combined with financial literacy, can also provide networking opportunities. Associating with women of similar financial standing increases their willingness to use their money to leave a legacy. This is especially relevant for women who are learning to be comfortable with their wealth. Many baby boomer women in this country will inherit twice—once from their parents and once from their spouse.  Nevertheless, donors will not give until they know that they can take care of themselves first. As an estate planning attorney, the most common question I hear from a new widow is, “Do I have enough money to live on?” (Of course that question should be asked many years before that moment in time.) Taking the time to systematically educate your women donors, to help them achieve financial literacy, to teach them that by gifting they can reap both current and future rewards will help empower them to act when they receive their “double inheritance.”

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

Polo club founder adopts his 42-year-old girlfriend

A rather unique attempt at protecting assets in a lawsuit. Thought you might find it interesting. What do you think of Mr. Goodman’s solution?  Leave your comments below.

By Michael Inbar

A wealthy Florida man has set off a firestorm by legally adopting his 42-year-old girlfriend as he prepares for a potentially costly wrongful death suit.

John Goodman, 49, founder of the Tony International Polo Club in Wellington, Fla., was involved in a crash on Feb. 12, 2010 that killed 23-year-old Scott Patrick Wilson. Local police say Goodman ran a stop sign while driving with a blood alcohol level twice the legal limit in Florida.

While Goodman faces criminal charges of DUI manslaughter, vehicular homicide and leaving the scene of an accident that carry a possible 30-year prison term in a trial set for March 6, he also faces a civil suit from William and Lili Wilson over the death of their son. That trial is set to begin March 27.

In recently released court documents, the Wilsons learned that Goodman had legally adopted his girlfriend Heather Hutchins in October. Attorneys for the Wilsons say it was a blatant move to protect his assets.

“It cannot go unrecognized that [Goodman] chose to adopt his 42-year-old girlfriend as opposed to a needy child,” The Palm Beach Post newspaper quoted family attorney Scott Smith as saying.

Palm Beach County Circuit Judge Glenn Kelley had previously ruled a trust fund Goodman had established for his two minor children could not be considered an asset in any court-rewarded damages to the Wilson family. Now, with Hutchins also considered Goodman’s daughter, she is entitled to one-third of the trust fund, and as an adult over 35 she can begin drawing money from the fund immediately.

Judge Kelley was critical of Goodman’s move in his order granting the Wilson family the right to information regarding the adoption. Kelley said the adoption “border(s) on the surreal,” The Palm Beach Post reported.

“The Court cannot ignore reality or the practical impact of what Mr. Goodman has now done,” Judge Kelley wrote. “The Defendant has effectively diverted a significant portion of the assets of the children’s trust to a person with whom he is intimately involved at a time when his personal assets are largely at risk in this case.”

While Goodman’s move has tongues wagging on the society scene in south Florida, a state adoption expert told WPEC-TV in West Palm Beach that Goodman adopting his girlfriend may not be strictly legal.

“Adoption means the act of creating the legal relationship between parent and child where it did not exist,” adoption attorney Charlotte Danciu told the station.

“Unless you intend to create the parent-child relationship, you are violating the letter of the law.”

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

Donor Education and Financial Literacy – The Series

Educated donors who are financially literate understand why they are giving. Education leads to empowerment. Empowerment leads to action. Integrating an effective financial literacy and donor education program into your institution’s goals and objectives is a mandatory component of an overall philanthropic plan.

 

Why Financial Literacy Is Important

Financial literacy adds significant value to donor education because it helps donors make the most of their wealth through giving.  Financial literacy has been defined by The Organization for Economic Co-operation and Development (OECD) as  “the process by which financial consumers/investors improve their understanding of financial products, concepts and risks; and, through information, instruction and/or objective advice, develop the skills and confidence to become more aware of financial risks and opportunities, to make informed choices, to know where to go for help, and to take other effective actions to improve their financial well-being” (http://www.oecd.org/dataoecd/0/41/42271820.pdf).

Research suggests, however, that most Americans have extremely low levels of financial literacy, and that their lack of financial literacy has an impact on philanthropic giving.

Analyses show that, regardless of the actual financial resources held by donors, the size of their donations is negatively affected by feelings of retention (a careful approach to money) and inadequacy (worry about their financial situation).

It can be concluded that an understanding of money perceptions is an additional important factor in the understanding of charitable behavior. Since most people do not know how much they can afford to give based on their income, financial literacy can result in higher giving—once donors know the amount that they can afford to give based on their income, they can increase their giving. Given these findings, fundraising professionals should not only select potential donors based on their absolute financial capacities, but also take the potential donor’s own financial perceptions into account when asking for donations. (Wieping and Breeze, 2011, 1)

Next week: Why Effective Donor Education Programs Are Important!


Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

New Risks to Wealth Management: To Gift or Not to Gift

Traditional risks related to the family’s wealth (including financial, intellectual and social assets) include the illness or death of the key family stakeholder, economic downturn and changes in the regulatory or legal environment. New risks are triggered by the dissipation of wealth due to generational mathematics—with each ensuing generation, the wealth is splintered—and the lack of creation of new wealth; this very turbulent economic time; the increased complexity of legal and tax matters; and the increased complexity of wealth management choices. These risks can be mitigated when the family coordinates its advisors and monitors the integration of all professional services.

The risks are further mitigated when the family embraces and encourages financial education and financial literacy across the generations. Mentoring, shadowing, exposure to the concepts and resources along the generation continuums reduces the chances for unintended consequences.

New Risk: The Bracket Game:  To Gift or Not to Gift…That Is The Question…..

On December 17, 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the Act). The Act significantly changes the federal estate tax, which impacts estate planning for many and presents significant estate planning opportunities. The biggest surprise in the new law is the ability to give $5,000,000 of assets away now and remove those assets and any appreciation in their value from the donor’s taxable estate. In a marriage, this doubles the amount to $10,000,000. This law is in effect until December 31, 2012, and it is unclear what the state of the law will be from 2013 on.

This significant increase in the gift exemption adds to the donor’s ability to gift the annual exclusion of $13,000 each year and the donor’s ability to pay anyone’s tuition and medical expenses as long as payment is made to the provider.

The Act has prompted spirited discussions, “Well, now that I can really give that much, should I? What are the non tax risks to making those gifts?”

     Factors to consider when deciding whether to gift or not to gift:

1.     How much is enough?

This question is always worth discussing. Warren Buffet’s answer is, “Leave your children enough money so they can do anything, but not enough that they don’t have to do anything (although Buffet did not leave his children the bulk of his fortune, he did leave each of them a foundation of $1billion dollars to give to the charities of their choosing).  In my experience, the answer depends upon the individual, often changes over the lifetime of the donor and has to do with his/her children and the economic times.

2.     What strings do I want on the gift?

Whatever the amount, you must decide how much control there    is over the gift. Is it to be given outright? In trust? Who is the trustee? How long should the trust extend? What are the terms of distribution? Who are the permissible beneficiaries?

3.     Should I leverage the gift?

In addition to the strings that you want to impose on the gift, you should also address leverage. If you make a gift that is eligible for a minority or marketability discount, that increases the value of the gift by at least 20%. If you fund an irrevocable trust and anticipates that the trustee will use the funds to make annual life insurance premium payments, then significantly more may be added to the trust through leverage than if the gift were to be invested along more traditional methods.

4.     Am I willing to assume the risk that the gift, once given, is gone?

What if the donee becomes divorced or has creditor issues during the donor’s lifetime, and the gift is jeopardized? Can you live with that consequence? The cascading effects from a gift can have far reaching consequences. For example, if the donor parent gifts 20% of the stock in his closely held business to his children; and one of the children becomes divorced, it is not just that the child’s interest in the business may be vulnerable. Even if it is not vulnerable, the divorce court also has the right to order the valuation of the child’s interest in that business. To do that means valuing the business in its entirety;  and having that asset valued in a hostile environment—where the ex-in-law’s lawyer will try to value that as high as possible—will in all likelihood be in direct opposition to the donor parent’s valuation and appraisals for estate planning and transfer tax purposes. In addition, if the donee child is ordered to pay alimony or child support, then the income from the gifted asset will be taken into account when the court establishes the dollar amount. If the income is phantom income, which the child donee does not actually receive, that can present additional complications and litigation.

5.     Am I willing to give up the “fruit as well as the tree”?

In most cases, the fruit and the tree—meaning the income and the principal—go hand in hand. For example, are you ready to give away 20% of the underlying asset, knowing that the corresponding 20% of the income which is attributable to that asset will also no longer be available to you?

6.     Have I considered gift splitting?

Gift splitting—where one spouse makes the gift, and the other gives consents to that gift—is a very effective estate planning technique for the second marriage couple. Frequently, in that case, one spouse is wealthier than the other. If the less wealthy spouse does not have $5,000,000 of assets in his/her own right, then using the less wealthy spouse’s $5,000,000 exemption in full or gift splitting, with the wealthier spouse giving his/her assets to his/her own children can be a very creative technique. In effect, it doubles the amount that can be gifted. When considering this technique, especially if there is a prenuptial agreement or postnuptial agreement in place, care should be taken to protect the estate of the less wealthy spouse who consented to this gift or allowed the use of his/her $5,000,000 exemption.  The possibility that the exemption could decrease later, resulting in additional estate taxes in his/her estate to his/her beneficiaries, should be thought through and discussed.

7.     Should I gift more than the $5,000,000/$10,000,000 exemption and incur the 35% gift  tax?

For many very wealthy individuals, this is a question to consider seriously. The gift/estate tax rate has not been this low in eight decades. The difference between a tax exclusive gift and a tax inclusive bequest is significant at the higher dollar levels, and exploring this (especially if the underlying assets have significant growth potential or discount opportunities) should be an option.

 Solution: Creation of a Family Risk Management Policy Statement:

A solid family risk management policy contains the purpose, principle and procedure for implementation. The purpose of a family risk management policy may be to reduce the risk for family members, both individually and as a whole. Adherence to the policy would go far to protect the family’s human and financial assets and minimize potential liability. The principle of the policy may be to make clear that the responsibility is to identify the areas of high risk and to do whatever possible to mitigate that risk. The procedure of the policy may make it clear that each family member is expected to:

  • Achieve financial literacy with regard to his or her own wealth as well as the wealth of the family enterprise.
  • Draft and have both parties sign a pre-nuptial agreement.
  • Contact their insurance providers annually to review their insurance coverage to ensure that they are current and adequate.
  • Have in place basic estate planning documents: will, revocable trust, health care proxy, power of attorney for financial assets.
  • Participate in the development of an investment policy that is aligned with the family’s shared values.
  • Protect the family’s reputation by learning how each individual’s behavior, both positive and negative, can impact the family’s reputation.

A family risk management policy statement is dynamic. It should be reviewed and adjusted as the risks that families face evolve and change.

 

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

New Risk to Family Cohesiveness: Impact to individual goals and life plans

New Risk to Family Cohesiveness: Impact to individual goals and life plans by the increasing lifespan of baby-boomer generation. Take the Steps Now to Put the Oxygen Over Your Own Face First and Decide Who Will Make Your Health and Financial Decisions If You Are Unable To Do So.

Another risk to family cohesiveness is the impact of increased lifespan to individual goals and life plans. Traditional risks included the illness, death or incapacity of a key family figure. In the family business and in the co-ownership of investment and commercial assets, the new risk is the increased work lifespan of the older generation, which results in the delayed succession of the middle generation. In essence, with the older generation in good physical and mental health and working far longer, the middle generation may in effect be knocked out of position and never get its day in the sun. By the time the older generation decides to move along, the individual goals and life plans of the middle generation may have been passed by; and the baton may be passed to the next generation. This new risk can be mitigated by intentional strategic planning and clear communication among all generations as to what the expectations are for the working lifespan and when the baton should/will pass.

Strategies to Mitigate the Risk of Increased Lifespan to the Ability to Control Your Own Health and Affairs and the Risk to Next Generation’s Life Plans:

1. Understand that estate planning is much more than what happens when you die; in an increasingly aging population that is living longer disability or incapacity planning is essential. Make sure you have in place the legal mechanisms so that you can be taken care of in the way you desire. It is important we all remember what the flight attendant says every time you board a plane- if the cabin pressure changes and the oxygen mask falls down put that mask over your own face first –it is only when you do put the mask over your own face that you will have the strength to protect others. In other words, protect yourself first.

2. Make sure the documents that will protect you if you are unable to care for yourself (Health Care Proxy and Durable Power of Attorney) are up to date and the way you want them.

A Health Care Proxy is a document in which you give the authority to an agent to make medical care decisions if he/she becomes unable to make them. The document can authorize everything, including minor and routine medical involvement, and can give the agent access to all your medical records. It can authorize someone to supervise your care if you are incapacitated, to consent to have you undergo certain types of treatment or to have them withdraw from treatment; to make hospital or nursing care arrangements; and to employ or discharge caregivers.   It can also empower the agent to make such major decisions as whether or not to terminate your life.

Under federal law, only one person at a time can be named as health care agent, but a Health Care Proxy can name a succession of people as alternatives.  This is done so that someone else can take over if, for instance, both spouses are in the same car crash, and neither one of them is in a condition to make medical decisions.  A copy of the Health Care Proxy should be given to your primary care physician and becomes part of the medical record.

As with a financial Durable Power of Attorney, in the health care area, couples usually designate each other to make medical care decisions and list their children as successor agents.  The health care agent must be someone they trust, who shares your value system, who is willing to perform the task and who has a clear understanding of what your preferences are.

It is prudent to update this document regularly, and, when it is updated, to make sure that the most recent contact information for those who have been designated to make health care decisions (including all telephone numbers and cell phone numbers) are current. If the Health Care Proxy was executed prior to The Health Insurance Portability and Accountability Act of 1996 (known as HIPPA) then the document must be updated. Under HIPPA, if you do not expressly waive your right to privacy in writing, hospitals and physicians do not have the legal right to speak with the health care agent or to release medical information to that person.

Choose a Health Care Agent. This important person may have different titles in different states (such as “health care agent,” “health proxy,” “patient advocate,”  “attorney-in-fact,” “health care representative,” or “health surrogate”), but the responsibilities are the same.  The official requirements for health care agents also vary from state to state, but most states simply specify that the person must be an adult (over 18) and must be someone who does not work for your health care provider or for an adult care facility in which you are residing.

It is good to designate both a health care agent and a successor agent (choice #1 and choice # 2), in case you need help at a time when the agent you have chosen is not available.  You should decide which child to choose, and if you have  no spouse or children, which friend or relative to choose.

In order for you to choose a health care agent wisely, it is helpful to establish a basis for evaluating potential candidates. That evaluation should include the following criteria:

1) Religious beliefs:  Since the concept of withholding artificial life supports runs contrary to the teachings of several religions – most notably the Catholic Church – it is helpful to find a health care agent who shares your  religious beliefs and your position on right-to-die issues.

2) Willingness to take on this task.

3)  Strength to act on your wishes and speak out on your behalf (even if faced with doctors, institutions, or family members who disagree).

4) Communication:  The agent is comfortable talking to you about sensitive issues and capable of listening to and absorbing what it is that you want.

5)  Separation:  This is a person who can differentiate between his/her feelings and yours and be able to do what you want done.

6)  Proximity: This is someone who either lives close or could travel quickly to be there when needed.

7)  Availability:  This person is likely to be accessible and capable of performing tasks well into the future.

8)  Personal Understanding:  He/she knows you well enough to intuit what is important to your.

9)  Negotiation skills:  He/she can mediate conflicts between family members, friends, and medical personnel.

Figuring Out What You Want: The following questions are designed to help you know yourself and to form a basis for discussion with the person you choose to execute your health care power of attorney.

1)  The Pleasures of Health:  How essential are these capabilities to your happiness?  (I.e. are they, Vital, Important, Mildly Important, Not important)

*Walking

*Enjoying the outdoors

*Eating, tasting

*Drinking

*Reading

*Attending religious services

*Listening to Music

*Watching television

*Avoiding pain and discomfort

*Being with loved ones

*Touching

*Being self-sufficient

2)  Fear Factors:  What are your biggest concerns about the end of your life?

3)  Spirituality:  How much of your comfort and support comes from religion?  From personal prayer?  From interaction with clergy?

4)  End of life: If you had the power to decide, what would the last day of your life be like?  Where would you be?  With whom?  What would you be doing?  What would your final words be?

5) Assistance Preferences Worksheet:  It is useful to discuss with your health care agent (and family members as well) the types of assistance you might want, should you need help, and to revisit this issue from time to time, because your preferences could very well change. Looking at each of the different scenarios spelled out below, think through what your preferences would be by asking yourself the following questions:

a) Would I still want to live at home?

b) Would I want caregivers hired to help me out in my home?

c) Would I want to be taken to a rehab or assisted living center?

d) Would I want family members to care for me?

e)  Would I want to live with one of my children?

f)  Would I want one of my children or a relative to live with me?

g) Would I want my health care agent to make these decisions for me?

h)  Would my answers differ if my spouse were still living at home?

-If you were unable to drive a car ___

-If you were unable to climb stairs ___

-If physical problems prevented you from being able to dress yourself ___

-If you had to use a wheelchair because you were no longer able to walk ___

-If you were unable to leave your home ___

-If your vision were seriously impaired ____

-If your hearing were seriously impaired ___

-If you needed kidney dialysis ___

-If you needed chemotherapy ____

-If you were in physical discomfort most of the time ___

-If you could no longer control you bladder ___

-If you could no longer control your bowels ___

-If you could not think clearly ___

The more you take the time now not only to think through who you wish to choose as a Health Care Proxy, but also how who would want various future scenarios to be addressed by that person, the more likely your wishes will be honored in the future.

Make sure (especially if you are in a second marriage) that you have coordinated the person chosen as your Health Care Agent with the person named as your Trustee and/or your Attorney in fact under a Durable Power of Attorney so that the decisions about your medical care and how to pay for it are coordinated.

What challenges are you facing in your estate individual goals and life plan?  Share your stores in the comment section below.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

New Risks to Family Cohesiveness: Damage to the Family Reputation or Family Brand

In the area of family cohesiveness, reputation or the family brand is at risk. Traditionally this risk was triggered by a scandal that leaked out to the press. The new way this risk is triggered is through social media.

To date, Facebook has approximately 500 million users and on any given day 50% of those users are online. Many of our children and grandchildren are spending an increasing amount of time living, working and playing online- sometimes with the wrong people.

One click of the button, one Facebook page or one YouTube vignette can go viral instantly and affect the family’s reputation and brand. It can be used in divorce actions, custody matters and employment decisions. Once viral, it is hard to eradicate. Social media is discoverable in litigation. Social networking sites are an investigative tool that gives the lawyers information that will lead to the evidence they need to present in a trial. Information gathered from social network can be used to attack credibility, discover relevant character evidence, dispute damages, determine or rebut state of mind and identify witnesses.

Facebook has been used to show the teenage driver who killed her best friend in a car accident was a party girl who drank heavily. Posts and pictures of her in many party situations abounded.

In divorce and child custody cases investigators look to confessions-things that people have done, places they have been and people they have had their children around.  People post revealing pictures and video on the Internet they would never share in the day to day world.

As an example there is a Facebook group entitled, “I hate my Ex???”. The group was created for “everyone who hates their ex-boyfriends or girlfriends or ex-husband or ex-wife.” Actual posts on that Facebook page include the following:

“I hate my ex husband wish he wasn’t the father of my kid so he could be out of my life for good!!!”

“My daughter hates my ex, her father, and the courts say she has to visit him. He gets her all this week for vacation.”

“My ex should die a slow painful death for what he put us through.”

“I hope my ex gets herpes.”

In Georgia, the Court of Appeals reviewed posts such as those (High v. High, 389 S.E.2d 690 (2010)) and admitted into evidence posts on the issue of the father’s suitability to have custody of the minor children.  The court commented that it was disturbed by the statements contained in the father’s MySpace page where he wrote “I’m actually a little sorry for [mother] just because losing her job affects my children. Well, maybe not. Now I’m financially more than able to support [the kids] if [mother] gets out of the way or is pushed out.” Relying on these posts the Court observed the father’s hostility, animosity and anger towards the mother and awarded the mother sole custody.

In Ohio, The Court of Appeals affirmed a lower court decision to consider text and picture posts on a mother’s MySpace page (Williams v. Gonzales, 2010 WL 3365741). The maternal grandmother filed a third party motion to modify custody of the mother’s children. The grandmother put forth evidence that the mother maintained a MySpace page under the name “Sexy Nurse Williams”. The mother posted pictures of her children which one expert called an “oral aura” in a slideshow with two sexually explicit graphics. The grandmother’s expert on social media and expert on risks to children regarding sexual matters, testified the pictures were displayed in a “sexualized manner” and created a “pedophile’s dream.” When these facts were taken into consideration the trial court found that a change of circumstances had occurred and modified the custody order.

In Indiana the Court of Appeals affirmed a lower court’s decision to consider the MySpace posts of one mother who mocked her children and their allegations that the mother’s boyfriend has been physically abusive to them. (In the matter of the Paternity of P.R. and A.R. 2010 WL 538476). The father petitioned the court to modify custody and support. The court, after reviewing the mother’s MySpace page and the allegations she made that mocked her own children for statements they made about her boyfriend who had one felony conviction for battery on a minor under the age of fourteen, awarded sole custody to the father.

With sites such as Facebook and MySpace the user can instantly download pictures and videos. People now have the ability to do that with themselves and even scarier, others have the ability to post that information about you and put them on their profiles without your knowledge.

As an example, the Ohio Court of Appeals in In re N.F. (2009 WL 1798146) the mother’s boyfriend (an exotic dancer) posted pornographic pictures on the mother’s MySpace page. These pictures were easily accessible. The court took custody away from the mother, ruling that even though she had demonstrated the ability to care for her children, work two jobs, provide financial support and strive for her GED degree, her home and personal life was chaotic and problematic.

In Michigan, Copeland v. Mitchell (August 5, 2010 Docket No. 290381) the Court of Appeals awarded the father full custody after considering pictures of the children posted to the mother’s MySpace page showing the girls without blouses.  The Court also ordered the mother to immediately remove the pictures.

The younger generation, if not educated, is not mature enough to understand the afterlife omnipresent power of the digital era. A strong family risk management policy should include education about the dangers of social media and a morally binding decision among family members to understand the consequence of social media on the reputation of the entire family.

How are you protecting yourself and your family wealth when considering these new risks?  Share your thoughts and comments below.

 

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently announced the release of an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  Annino’s book is an exhortation, resource and trusted companion for women in all facets of life.  To purchase the book visit:  http://amzn.to/hOHuEV or for more about Annino, visit: www.patriciaannino.com.

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