Plan for Incapacity.
It is not just about who gets your parent's property after death. It is also about who can act for them if they become physically or mentally incapacitated. If you don't plan ahead you may have to result to a conservatorship or rely on surrogacy laws to help them.
A Healthcare Power of Attorney (HPOA) acts for you when you cannot communicate an informed decision on your own, either because you cannot physically communicate in any way, or because you cannot formulate an informed decision. It can be narrow or broad. It can have other names: “Health Care Proxy”or “Advance Directive”. Most states have special witnessing requirements. Some states have statutory forms that may be used. A few states require that you follow all or part of the statutory form. Make sure the agent you select knows your parent's preferences, and will be a strong advocate. (Families often fight over who should be appointed). If you use a form document read it carefully. Tailor it so that it clearly expresses your values and wishes. Make sure your doctor understands and will respect your wishes. Many hospitals have these forms available. Surrogacy laws may help if you don't have this document.
Living Will, DNR and POLST Unlike a Health Care Power of Attorney a Living Will does not appoint an agent and, in some states, applies only to terminal illness or a coma-like state. You may have a Living Will and Health Care Power of Attorney or combine them both in one Advance Directive.
DPOA Durable Power of Attorney A document by which one person (the “principal”) gives legal authority to another (called the “agent” or “attorney-in-fact”) to act on behalf of the principal. “Durable” means that the agent can act when the principal becomes too sick or disabled. The DPOA provides a simple way to appoint an agent or agents whom you want to manage any part or all of your affairs: financial, personal, or both. You can customize, include instructions, guidelines, or limitations as you wish. You can make it limited or general. It can be effective immediately or only when you are incapacitated. Without this document you could end up it an expensive conservatorship. This document is too important not to be carefully considered. Proceed with caution if using a downloaded form. This is one document you should have reviewed by an attorney.
Last Will and Testament Operates only after death. You need to know where it is kept. Know the safe deposit box rules. You need more than just the key! If you die without a will you die “intestate” and each state has its rules as to who gets what.
Probate is a court process to administer an estate (if there is one). Not all assets have to go through probate: Payable On Death accounts; joint tenant with right of survivorship; TOD (Pays to Beneficiaries on Death); "tenancy by the entirety" avoids probate; insurance benefits. Many states like Florida and California have "simplified procedures" for transferring property for estates worth under a certain amount depending on the circumstances and the kind of property.
Trusts: You may know what they are but not how useful they can be. A revocable trust remains your property and is subject to claims of all creditors. A properly prepared irrevocable trust removes property from your control and is no longer subject to creditors. A trust is useless if you forget to transfer assets to it.
Conservatorship:A probate conservatorship (In some states a guardianship) is a court proceeding where a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for him/herself or his/her finances (called a conservatee). The person the Court appoints as conservator must be very responsible.There are two kinds of conservators:
Social Security Representative Payee: A representative payee is a person or an organization. You can appoint a payee to receive the Social Security or SSI benefits for anyone who can’t manage or direct the management of his or her benefits. . A payee’s main duties are to use the benefits to pay for the current and future needs of the beneficiary, and properly save any benefits not needed to meet current needs. A payee must also keep records of expenses. When SS requests a report, a payee must provide an accounting of how he or she used or saved the benefits. Being an authorized representative, having power of attorney, or a joint bank account with the beneficiary is not the same as being a payee. These arrangements do not give legal authority to negotiate and manage a beneficiary's Social Security and/or SSI benefits. In order to be a payee, you must apply for and be appointed by Social Security.
Many states certify attorneys in specialty areas like elder law. Check with your state's Bar Association. Once you agree on an attorney make sure you know who he represents. All family members may not have the same interests.
National Academy of Elder Law Attorneys
Elder Law Answers
American Bar Association
Funeral Consumers Alliance
Everplans State by State Guides
Santa Clara Court Conservatorship Self Help
Social Security Representative Payee
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