As 2020 comes to a close, we may be impatient to move beyond this year. It has been an especially difficult and uncertain year, and we may be eager to let go of it and look ahead. These sentiments are understandable. 

However, the year-end holidays are often a good time to complete or review your estate plan.  We may have some time away from work to focus or find ourselves more reflective during the holidays. Take advantage of this unique time to move ahead with your planning goals. Without question, this year has been turbulent, but it has undoubtedly taught us the importance of a plan.  
Here are 5 helpful tips for your planning as we approach 2021:

1. Take stock of what you own. If an item is important to you and you want to ensure it is passed down correctly, include it in your inventory and indicate which recipients should get which assets. This includes property, financial accounts, annuities, retirement benefits and insurance plans, as well as personal effects of value, such as jewelry, collectibles, etc. 
2. Complete or review your estate plan: Have you been putting off completing your estate plan?  The holidays are a perfect time to have discussions with family regarding your plan, finalize the details of who will serve in key roles, decide upon beneficiaries and set your plan in motion. When circumstances change in your life, you should review your plan to ensure it reflects these changes. As a rule of thumb, aim to review your plan whenever you experience a major life event such as marriage, welcoming a child or grandchild, etc. or at least every 5 years, whichever comes first. As you are reflecting on 2020, consider making or reviewing these important life decisions.
3. Review your account ownership transfers: While your estate planning documents may not determine how accounts are transferred, they are an important piece of the puzzle. This includes joint owner or pay on death beneficiaries, the primary and contingent beneficiary on your life insurance and retirement plans, and online accounts. All accounts should be reviewed and accounted for in your estate planning documents.
4. Discuss your incapacity documents with your family: You should have incapacity documents that designate an agent to make health care and financial decisions if you are unable to make decisions for yourself.  Make sure to discuss your wishes with your loved ones and keep these documents in a safe place. Do not forget to let your loved ones know where to find these documents and provide copies to your agent(s), bank and healthcare team.
5. Make charitable gifts and reduce or eliminate your taxes: Do you think you have waited too long to make your charitable gifts? There is a good chance that you have not. There is still time to make gifts this year to many worthwhile charities helping those in need.  And you may minimize or eliminate your estate taxes in doing so. 

As the holiday season nears, we continue to live with our “new normal.” This year’s holiday celebrations will involve virtual conversations and social distancing.  Even still, they are a good time to reflect on your planning goals and/or begin conversations with loved ones about their planning needs.   
 
We recognize that estate planning isn’t an easy or natural topic.  Talking about finances, relationships, health and death within a family can bring up conflicting emotions and awkwardness.  Even the timing of when to discuss estate planning can be a source of stress. Here are some suggestions on how to navigate these discussions with grace, supportiveness and tact:   

   1.    Parents speaking with adult children.
​
If you’re a parent initiating this conversation with adult children, you may want to pick a quiet moment to have a virtual or socially distant 1:1 chat.  Explain that you feel ready to create a plan that memorializes your wishes and avoids confusion and stress for your family down the road. This will be an ongoing conversation, so start slowly and be patient with yourself and others. 
 
It may be easier to have an initial conversation as you reflect on a holiday meal rather than in the lead-up to festivities.  People may be more focused and calmer at that time. Distractions will likely be minimized. This will help your loved ones to better understand the benefits of planning ahead and the peace-of-mind it brings with it.
 
    2.   Adult children speaking with aging parents.  

If you’re the adult child of aging parents, you should be honest about why you’re initiating this discussion. Explain that this isn’t about being nosy with other people’s lives. Instead, it’s about ensuring that your parents’ wishes are properly memorialized.  Avoid getting into the details of decisions your parents must make and focus instead on helping them understand the importance of planning while they are healthy.  
 
One possible approach is to discuss how current circumstances have led you to plan more robustly.  You may point out that your family is starting to gather telephone numbers and passwords in the event of an emergency, that you’ve begin thinking about who will make healthcare decisions for you if you cannot, etc. Another approach is to seek their guidance on your estate planning objectives. From there, you can guide the conversation towards ensuring that your parents also have such plans in place.

    3.  Talk about specific estate planning documents.  

Sometimes you can diffuse the awkwardness of such conversations by focusing on a checklist of documents.  This checklist should include:

• A durable power of attorney for your financial decisions in the event of incapacity;
• A durable power of attorney for your medical decisions in the event of incapacity; and
• A will or trust.

 
Focus on the purpose of these documents rather than what they contain.  That will help your family better appreciate your intentions and prevent emotions from running high. If documents are not yet drawn up, address what steps you can take to do so. Here at Rao Legal, LLC, we provide our clients with sample documents whenever possible so that they can become more familiar and comfortable with planning.  
 
Perhaps you or your parents need time to think about who will serve in key roles.  Who will be the executor of a will? Who will make decisions if you/they cannot? Recognize that these are important decisions and give each other the space to make them.
 
    4.    Lead with Empathy.  

Remind your family that estate planning is about ensuring that everyone is on the same page in honoring another’s wishes. Handling this now prevents conflicts and minimizes stress. Nonetheless, you should proceed gently.  Listen and watch carefully to see how others are responding.  Put yourself in their shoes and recognize how difficult this may be. The goal is to establish open and mutually supportive communication.
 
If you need help, please feel free to call or email.  We’re here for you. We take pride in providing counseling-oriented advice and are experienced in helping families handle such conversations. In the meantime, we wish you a wonderful and safe holiday season.  

We are pleased to share a guest post from Dr. Madhu Guliani, MD. 

Dr. Guliani is a board-certified internist and a certified yoga teacher.  She received her 200-hour certification in yoga from the Himalayan Institution of Yoga and Meditation.  For the past year, she has been practicing medicine via telehealth and offering free online yoga classes during the pandemic.  Fun fact: During her final year of medical school, Dr. Guliani received a gold medal, which is awarded to the best graduate of the year. 

​We will offer more estate planning tips soon and recommend you check out our past posts by scrolling down.  Topics include estate planning tips, retirement benefits and advance care directives.  And, of course, check out our "Upcoming Events" page for webinars. 

For now, we are thrilled to share Dr. Guliani's wisdom! 

                                                                                           ***

Dear all,

As we already know, stress has a huge impact on our physical and mental health.  We are all aware that everybody’s stress has increased in midst of the COVID-19 pandemic due to job loss for some, kids being at home, the loss of domestic and caregiver help, increased work at home, wearing masks, and social isolation from our family and friends. This can make us eat poorly, keep us away from exercising regularly, spike blood pressure, affect our sleep, and decrease our immunity.

Yoga can give us tools to cope with our depleting energy and provide us with physical and mental well-being and peace of mind. It is a tradition practiced for over 5,000 years.

Following are some very basic poses, which can be practiced at any time of the day and even before retiring to bed.

   1.  Shoulder shrugs (especially helpful if you have neck and shoulder issues).
       
Sit on a chair with your feet on the floor or sit on a floor (on a mat or blanket) cross legged.  Sit up with your back straight. Inhale and bring your shoulders to the ears.  Exhale and release the shoulders.  This can be repeated 5 to 10 times.
 
   2.  Knee hugs (especially helpful if you have back pain).
   
Lie down on the floor on a mat or blanket.  Inhale slowly.  Bring one or both knees to chest while exhaling. Clasp one or both of your knees with both hands and hold it for 5 breaths. Then keep on breathing.  You can rock from side to side.  Release your knees gently. This can be repeated 2-5 times.

   3.  Shavasna (very refreshing and rejuvenating when you are tired).

Lie down supine on a mat or blanket. Keep your feet 2 feet apart.  Keep your arms by your side with your palms facing up. Allow your body to relax and gently close your eyes. Breath slowly and focus on your breath. Don’t dwell on our thoughts. This can be done for 5-10 minutes.
     
I hope these poses help you cope and wish you all a good journey.
 
Be safe,

Dr. Guliani 

In Part I of our blog series for young families, we focused on outlining planning considerations that can help determine which type of estate plan is optimal. In Part II of this series, we outline some tailored options that may help families customize their plan more thoroughly. 

     1. Uniform Transfer to Minors Act. 

A minor cannot own assets until he or she achieves the age of majority.  Because of this, parents of minor children in Illinois must select a guardian of the estate to manage a minor’s assets until he or she achieves the age of majority. The guardian is subject to strict oversight by a court. Thus, families may opt to create minor’s trusts and transfer assets after their children achieve the age of majority to avoid some of the court costs and fees associated with a guardianship. 

However, setting up a trust may require an investment of cost and effort that exceeds what is practicable for some young families. If this is true for your family, then an intermediate option that may prove worthwhile is to proactively set up a custodial account under the Illinois Uniform Transfer to Minors Act (“UTMA”). A UTMA account provides a simple, inexpensive option to transfer assets and property to a minor.  The account is under the management of a custodian until the minor becomes 21.  The custodian is chosen by the individual(s) who set(s) up the UTMA account.  

There are key advantages to such an account.  For starters, a custodial account set up under the UTMA increases the age of majority from 18 (under a guardianship) to 21. Thus, your child has additional years to mature before he or she inherits assets. Additionally, a custodian generally does not require court oversight, which may result in less court time and expenses. 


But there are also key risks that should be discussed with a financial advisor or estate planning attorney. Notably, any assets transferred to a UTMA are irrevocable. In light of this inflexibility, parents should consider whether they want to set up a UTMA account today or empower their executor of their will to do so upon administration of their wills.  Additionally, assets placed in a custodial account are subject to a federal gift tax.  Thus, it is advisable to engage in some reflection with an experienced counselor before you make the leap so that you do not incur unnecessary taxes and headache. 

     2. Digital Assets.

Estate planning encompasses not just tangible property like real estate but also digital assets like credit card rewards points and frequent flier miles. It is therefore vital that you put the proper estate planning provisions in place to ensure that your digital assets are effectively protected and passed on in the event of your incapacity or death. Here are some best practices:

      a. Create an inventory of your digital accounts.      

You can either compile a list of all your log-in and password credentials or take advantage of password managers that store this information in a centralized repository. Popular choices are Dashlane, LastPass and 1Password. 


    b. Determine the level of access you want your fiduciary to have. 

As you compile this information, consider the level of access you want your fiduciary to have. If you want your fiduciary to have limited access, then you may not want to share your log-in and password credentials with them. Rather, you should work with your e
​state planning attorney and the particular service provider to limit the fiduciary’s access.
 
    c. Investigate whether your service provider has options. 

​Some service providers like Google, Facebook, and Instagram have tools in place that allow you to easily designate access to others in the event of your death. If such a tool is offered, you should use it to document who you want to have access to these accounts. Carefully read through any terms to determine what access your fiduciary will have. 

This month, we published Part II of our estate planning blog series for young families.  We are also thrilled to share a guest post from Anne Haag.  Anne Haag is a Practice Management Advisor at the Chicago Bar Association. Anne worked as a patent paralegal at a Chicago IP firm before arriving at the CBA in 2017 as the Law Practice Management and Technology department’s trainer/coordinator. She is also a certified crisis counselor and volunteers as a patient advocate in the ER.

Check out Anne's insights below on how to maintain calm during this time: 

2020 has been a stressful year, to say the least. In times like these, it becomes more important than ever to have a set of habits you can return to in order to find clarity and calm. Taking inspiration from Seinfeld, we all need our ‘serenity now’! Here are some habits you can develop that might help you cultivate a calmer mental state and better process stress triggers:

1. Limit the amount of time you spend on social media or reading/watching the news.

In between the pandemic and the Black Lives Matter protests that have been taking place in cities around the country, it feels more important than ever to keep abreast of the news. I’m not suggesting that you tune out entirely, but it’s important to set boundaries if you find the news to be triggering or anxiety-inducing. Remember, social media and the 24-hour news cycles are designed to be addictive. Find your own balance between staying informed and obsessing over things you can’t control. You can use screen time tracking tools on your phone to examine how much time you’re spending on different activities on your phone and go from there. “Screen Time” is a function built-in on Apple devices. It’s a little more complicated on Android devices, but you can follow steps to access your screen usage statistics here: https://www.guidingtech.com/check-screen-time-different-devices/.

     2. Make your notifications work for you.  

In keeping with the previous point, you might want to restrict the notifications you receive on your phone. You can set restrictions based on time of day, type of notification, etc. You can use the ‘Do Not Disturb’ setting to turn off notifications altogether or after a certain time of day. Personally, I found banner notifications (the kind that roll down from the top of your screen while you’re using another app or looking at your phone) to be an odd source of stress. I removed them altogether and feel like I have greater control over my attention when using my phone.  

     3. Get some fresh air. 

If you’re working remotely, be sure to set aside some time each day to spend outside. Outdoor exercise is particularly beneficial to your state of mind. It’s been so hot in Chicago this summer that you may feel more inclined to stay indoors. Finding time in the mornings or evenings to breathe fresh air might take additional planning (and the resolve to get out of bed a little earlier), but you’ll reap the benefits without having to contend with the heat. Even just a 15-minute walk (with a mask, of course) around your neighborhood is a great way to remind yourself that your world isn’t totally bound by the confines of your abode. 
​
   4. Practice mindfulness meditation and gratitude.

The pandemic has brought home the fact that we have limited control over our lives. This is an uncomfortable feeling to sit with, and we might spend hours wishing we were literally anywhere else. The practice of mindfulness draws you in to the present moment and grounds you in it. This may seem like the opposite of what you want to do, but it might also open you up to experiencing joy in ways you might otherwise miss. When you’re fully rooted in the present, you’re better able to notice small moments of beauty and warmth – something we all need right now. Taking stock of the things you’re grateful for also unlocks this same sentiment.

  5. Make safe socializing a priority.

The pandemic is probably not going to be resolved anytime terribly soon, and Chicago’s summer weather won’t last. Take advantage of being able to be outside while you can! There are plenty of ways to socialize while practicing social distancing. A weekly picnic in the park with friends might go a long way towards making you feel cared for and content. 

During our current times, young families are prioritizing estate planning. We hope to empower these families with the know-how to select an optimal estate plan.  In Part I of our blog series, we outline estate planning considerations. We also encourage you to execute advance directives (which we previously wrote about here). Your advance directives and your estate plan work in conjunction to help you achieve peace-of-mind.
 
Step 1: Determine your goals.
 
Start the estate planning process by reflecting on your goals.  What are your objectives? What are your concerns? 
 
For many young families, the most important concern is the selection of guardians for their minor children. In Illinois, there are two types of guardians: guardians of the estate and guardians of the person. The former manages the money or assets held by a minor child, while the latter becomes a substitute parent. The same person can fulfill both roles, but you have the option to select different people. When making such decisions, it is helpful to consider who will honor your parenting philosophy and values and who has the stability in their own lives to take on such a role.
 
Young families should also assess whether they have added goals -- i.e., planning for a child with special needs, managing business interests or avoiding probate, etc.  Your current goals will guide the estate planning process.
 
Step 2: What do you think about probate?
 
Probate court is the court that oversees the administration of the decedent’s estate. In Illinois, if you own real estate or have assets that exceed $100,000, then your will will be administered through probate.  Probate takes time.  Currently, the process must allow for six months for creditors to be notified before assets can be distributed to your beneficiaries. And, of course, you will have to pay court costs and legal fees. Because of this, some families opt for probate avoidance plans which require more planning than simple wills.
 
Other families, however, decide to take such steps down the line. Regardless of which route you take, you will need to consider what will happen if you opt for a plan that does not avoid probate. Many partners jointly own assets, which generally means that the assets transfer to the surviving partner upon the death of the first to pass.  You may feel comfortable putting off a more costly probate avoidance plan for now because of this. But make sure that you consider the scenario where both of you pass simultaneously or within a short period of time.  If there is no probate avoidance plan in place, then your assets must pass through a formal probate process. 
 
Step 3:  Are you using devices that bypass probate?
 
After considering probate, many couples assume that they must set up a trust to avoid probate.  Not necessarily.  There are devices in Illinois that can help you avoid probate without incurring the expense of a trust.  
 
First, beneficiary designations.  On most financial accounts and life insurance policies, you can designate who you want assets to pass to.  Once selected, the individual typically inherits the asset without court intervention. Note that some financial institutions will not allow you to name a minor outright as a beneficiary.  It is advisable to speak with the institution and your estate planning attorney to consider naming your child as a beneficiary by taking advantage of your state’s Minors Act or by naming a trusted adult beneficiary. The former allows the assets to transfer to a Uniform Transfer to Minors Act (“UTMA”) account that is overseen by a custodian of your choice until the child turns 21.  For some young families, this is a great step that avoids the necessity and expense of a trust.
 
Second, a transfer on death instrument (“TODI”).  In Illinois, you can pass your home through a transfer on death instrument -- a document filed with your county recorder of deeds in which you name who will take the property upon your death. The TODI is a great option for families who would otherwise bypass probate but for their home. If, however, you are quite certain that you may move, or that you will engage in trust planning down the line, then a TODI will merely be a stop gap.  If that’s the case, it may or may not make sense to invest in a TODI, depending on your circumstances. 
 
Step 4: Do I have multiple properties, want greater control over how my assets are distributed or have complex non-beneficiary designation assets?
 
For some young families, the devices that bypass probate are insufficient.  Once a family has multiple properties, wants greater control over who gets what and when, or has non-beneficiary designation assets that exceed $100,000, then a trust makes more sense. 
 
If you are concerned about life insurance proceeds transferring to your child via a UTMA account at the age of 21, then you may be able to set up a trust to achieve greater control. Make sure that your life insurance policy allows for this. If it does, then this trust can be set up as a living trust to avoid probate or it may be contained in your will as a testamentary trust. 

And, of course, some families prefer a trust because it does not become a part of the public record.  If you would prefer to keep the details of who will inherit your assets and real property private, then a trust is optimal. 
 
Additional considerations
Finally, it is important to think of additional wrinkles.  Is it likely that you will move? Are you a non-citizen? Are there significant liabilities or inheritances you expect? If so, you should bring this to the attention of your estate planning attorney.  This may impact which plan makes sense for you. 
 
We understand that there is a lot to consider.  But investing in such decision-making upfront will help you select a plan that more comprehensively addresses your needs and goals. 
 
Stay tuned for Part II! 

As we navigate our serious and surreal reality, we are spending more time at home.  This provides a good opportunity to have discussions with your family about planning for your future.  Indeed, I often hear families say that estate planning involves more thought than they had anticipated. That’s because a good estate plan depends on comprehensively addressing your needs and wishes starting today through the end of your life. 

Estate planning involves discussions on relationships, finances and mortality. These are not easy topics to consider at any point of your life, but such times remind us that they are necessary.  One silver lining to our current situation is that we now have more time together to partake in them. You can help your aging parents start thinking about who will step into their shoes if they lose their ability to make decisions for themselves or talk to your adult children about ensuring that their minor children are taken care of should something happen to them. 

To help you get started, here are quick tips that will save you and your loves ones time, thought and legal expenses down the road:

1. Make sure you have a healthcare directive in place. A healthcare directive allows you to select who will step into your shoes to make medical decisions for you when you cannot speak for yourself. Who will be responsible for your medical care if you lack the ability to make decisions for    yourself? The person(s) you select is known as your agent(s). Start thinking about who your agent will be and speak with him or her to obtain your agent’s address and best contact number.  
 
 2. Make sure you have a financial directive in place. A financial directive allows you to select who will step into your shoes to make financial decisions for you if you cannot speak for yourself. Who will pay your medical bills? Who will make mortgage payments on your behalf? Again, start thinking about who your agent will be and to speak with him or her to obtain your agent’s personal information. 

You can have different agents for different directives. If you do so, it is a good idea to make sure the people you select can work well with each other. For more detail on #1 and #2 and top tips on how best to make these work for you, read here. 

3. Start important conversations with yourself and others.  Now is the time to speak with loved ones about being a trustee of your trust or an executor of your will. These are the individuals who will administer your trust or will and carry out your wishes upon your passing.
And if you aren’t ready to have these conversations, then at least consider who will carry out these roles on your behalf and what your objectives will be. Who should get which assets? Do you have minors who need care if something were to happen to you right now? And so forth.

4. Compile a list of important people, accounts and documents/valuables.  Do you use a financial advisor? An accountant? Do you have online banking accounts? Credit card rewards programs? Start creating a master file of information for your agent, the trustee of your trust, and the executor of your will. Be sure to at least include:

a. The name, address, email address and contact number for accountants, advisors and investment professionals you work with.   
 
b. Log-in credentials (i.e., usernames and passwords) for online accounts you maintain. Without  it, your loved ones may not be able to access your accounts.  As an additional safeguard, make  sure you discuss these digital assets with an attorney who can help you plan for this in your estate planning documents. 

c. A location of where important documents/valuables are kept. Write down where original documents are kept for your agent, trustee and executor.  If you have any valuable personal property you are keeping for specific people, you should write down the item, who you will be  gifting it to, record their value and document the location where they are kept. 

5. Update beneficiary designations.  For most financial, retirement and life insurance accounts, you can designate a beneficiary who will inherit your account upon your death.  If done correctly, these designations avoid probate. Such designations should be reviewed periodically to ensure that they still fit your wishes. You should also select and review contingent beneficiary  designations for these accounts -- i.e., who will inherit your account if your beneficiary predeceases you.

To be sure, we are living in unprecedented times, but there are some silver linings. One of these is that we now have more time to be proactive about our future. Estate planning is one way in which you can take care of your loved ones while remaining in control and maintaining peace of mind.  We encourage you and your loved ones to get started. 

We are here to help. Please email or call us. 

  The Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) was signed into law on December 20, 2019 by President Donald Trump. This new federal law significantly changes the landscape for retirement account planning. Here are some major changes that could impact your estate plan:

1. Most non-spouse beneficiaries cannot stretch distributions over their life expectancy.

Old rules: Prior to January 1, 2020, beneficiaries of inherited IRAs could take distributions over their life expectancy – which often provided a longer period of time to stretch out the tax-deferred advantage of the account.

New rules: Under the new rules, only an eligible class of beneficiaries can stretch distributions over their lifetime.  This class includes:

• Your spouse
• Minor children of the account owner
• Disabled beneficiaries
• A chronically ill beneficiary; and
• A beneficiary who is not more than 10 years younger than the account owner.

All other beneficiaries are now required to fully take distributions from the inherited IRA account within 10 years of the accountholder’s death. This shorter time period can result in some significant tax bills.

In light of this, consider reviewing your estate plan to reevaluate your retirement and estate planning strategies. If you made beneficiary designations under the prior laws, it may be wise to consult with an estate planning attorney to see if modifications need to be made.

     2. The maximum age for traditional IRA contributions is repealed.

Old rules: Prior to January 1, 2020, the maximum age to make contributions to traditional IRAs was 70 ½.  Indeed, you could not make contributions during the year in which you turned 70 ½ or any year thereafter. 

New rules: The new legislation repeals the age restriction on worker contributions to traditional IRAs. This will provide a valuable tax deduction and enable you to save more for retirement. As Americans work and live longer, this additional amount of time to save for retirement will be extremely beneficial.

   3.  The age when retirees must take Required Minimum Distributions is now increased.

Old rules: Prior to January 1, 2020, you were required to start taking withdrawals from a traditional IRA by April 1 of the year after you turned age 70 ½. These withdrawals are known as required minimum distributions.

New rules: The SECURE Act increases that age limit to age 72. This change gives you more time to let the investments in a retirement account grow tax deferred.

  4. New parents can take penalty free withdrawals.

​Old rules: Prior to the new law, if you took a withdrawal from your IRA or 401(k) before age 59 ½, the amount would usually be subject to income tax and a 10% penalty. The IRS did make some exceptions to this for penalty-free early distributions from some types of retirement accounts for specific circumstances involving hardship, such as an expensive medical emergency or to purchase health insurance after a job loss.

New rules: The SECURE Act adds an additional exception to this list. You are now allowed a $5,000 withdrawal from an IRA or 401(k) after the birth or adoption of a child. It’s a good idea to consult with an estate planning attorney to ensure you meet the conditions necessary to take advantage of this new option.

Want to ensure your needs and goals are being met after the passage of the SECURE Act? Call us at (312) 584-8852 or email us. 
 

“I’m sorry, but you need capacity to execute advance directives.” As I heard a sigh on the other end, I relived a painful scenario all too familiar to estate planning and elder law attorneys.  The dreaded conversation in which you have to inform an already overwhelmed individual that her family must go to court to have the court decide who will step into her shoes to make decisions for her because she can no longer speak for herself. 

Conversations like these gave me the impetus to offer free community presentations and consultations across the Chicago-land area.  Just as I advise my parents, I also advise people that advance directives are an equally important part of their estate plan. It’s become a personal mission to make this information accessible.  

Estate planning and elder law are areas where misinformation spreads quickly.  The unfortunate consequence is that people do not take advantage of options they have until it is too late.  One common example is advance directives -- that is, documents that an individual executes to choose who will speak for her in the event she cannot speak for herself. Advance directives typically consist of a power of attorney for property to cover financial, asset and real estate decisions; a power of attorney for healthcare to cover medical, end-of-life and burial decisions; and a living will.  With advance directives, you remain in control and determine what is best for you.

Advance directives are for everyone. That’s right, everyone.  They are just as vital for the college student who goes away from home and wants to be sure mom and dad can access his medical records and make medical decisions for him should something happen to him as they are for the young couple who wants to make sure they are clear on who will step into their shoes to make decisions for them that could impact their children.  And of course, they are a major source of comfort and relief to young-at-heart who want peace-of-mind on Medicare, end-of-life planning and burial plans. 

People frequently think that these documents take effect upon death, i.e., “my power of attorney is there to make decisions when I die.” Not exactly.  Your agent under your power of attorney is there for you in your lifetime in the event that you cannot make decisions for yourself -- that is, when you lose capacity. Here’s a quick illustration of when you enter into advance directives and when they take effect: ​

Capacity is required to execute advance directives. Once you lose capacity, you also lose the ability to execute advance directives. If you have lost capacity and do not have advance directives in place, then your family will be forced to go to court and seek a determination from the court as to who is the best decision-maker for you.
​
Frequently, people associate a loss of capacity with aging-related medical issues such as dementia or Alzheimer's. But there are unexpected scenarios that can also impact us cognitively, such as an accident, unexpected illness, etc.  This makes it critical to start on advance directives sooner rather than later. We may not be able to predict the future, but we do have the ability to prepare for it through advance directives.

In my presentations and 1:1 sessions, here are some tips I provide:
​
1.         Don’t delay, start today.  You must have capacity to execute advance directives.  Thus, the best time to make an advance directive is before you need one. Otherwise, you cannot guarantee that decisions will be made according to your values, priorities and preferences. 

2.         Consider your needs comprehensively. Advance directives are best entered into when you have the time and energy to consider your needs comprehensively. They allow you to plan for various stages of life: going away to college, when you become a parent, when you start using Medicare or Medicaid and when you want to document your burial wishes. Planning ahead when you have the time to think will ensure that your directives are more robust. 

3.      Select an agent you trust. Advance directives are about ensuring that your values and wishes are honored. Pick someone you trust to carry out your wishes. You can pick different agents for different directives, but make sure the agents work well together.  For example, your agent under your power of attorney for healthcare will handle medical care decisions, but your agent under your power of attorney for property will handle your medical bills.

4.         Be clear about the powers you are delegating to your agent. The range of decision-making you can delegate is broad -- from making medical decisions to gifting your assets to assist with tax planning.  It is up to you to determine the scope of decisions your agent can make on your behalf. Be clear by recording any limits or additions in your advance directives. 

5.    Choose the right attorney for you.  Advance directives involve discussions of family relationships, finances, and death.  So, choose someone with whom you feel comfortable disclosing these details. It’s equally important to pick someone who has experience.  The directives are flexible and adaptable, so select someone who knows how to make them work best for you. As someone who has reviewed DIY powers of attorney gone wrong, I can tell you that the cost of an experienced attorney is much less than the cost of finding out these are invalid after someone has lost capacity. 

Fundamentally, advance directives are about your autonomy and self-determination.  If you forgo this step in your estate plan, or handle it improperly and lose capacity, then your loved ones will be forced to go to court to seek the court’s determination on who is best to make decisions for you. Most people aren’t comfortable with that. 
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So, what are you waiting for? Get started now! If you need help with this, please feel free to get in touch by calling us at (312) 584-8852 or drop us an email.