If You Become Incapacitated, Who Will Manage Your Money?

Apr 26, 2012  /  By: Roger Levine, Estate Planning Attorney  /  Category: Incapacity Planning

You may not want to focus on the possibility of your own incapacity, but you should take the time to do so. In the event that you do become incapacitated, either as a result of the natural process of aging or because of a sudden illness or accident, someone will need to manage your money. Will it be someone who you want managing your money? That depends on whether or not you take the time now to create an incapacity plan.

If you are married, you may want your spouse to manage your money in the event of your incapacity. You may even be under the impression that your spouse will automatically be allowed to manage your money simply by virtue of being your spouse. This is not necessarily the case. For anyone other than your spouse, they will almost certainly not be allowed access to your assets absent pre-planning on your part or a court order.

Without proper pre-planning on your part, anyone wishing to take control of your money or assets will need to petition a court for the authority to do so. This can cost both valuable time and money. Worse, it could result in a dispute if more than one person petitions the court for authority.

By taking time now to consider the possibility of your incapacity and creating a plan with the help of your estate planning attorney, you can decide now who will manage your money and what parameters should apply  if you ever become incapacitated. Although each plan may use different incapacity planning tools, creating joint accounts, a durable power of attorney and/or a revocable trust are all popular tools that you may incorporate into your plan.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Revocable Living Trust and Incapacity Planning

Mar 28, 2012  /  By: Roger Levine, Estate Planning Attorney  /  Category: Incapacity Planning, Wills & Trusts

A revocable living trust, is an inter-vivos trust, meaningit is created and takes effect while you are still alive. It has benefits and drawbacks. Although a revocable living trust does not offer the same estate tax avoidance and assets protection benefits that an irrevocable trust offers, it can be an excellent way to plan for your incapacity.

Creating a revocable trust requires you to appoint a trustee, name at least one beneficiary and allocate assets to fund the trust. A revocable trust allows you to appoint yourself as the trustee and beneficiary. In addition, you will need to nominate at least one successor trustee. This should be a spouse, child, parent or other loved one whom you wish to take over in the event of your incapacity.

After establishing the basic framework for the trust, you must decide on the trust terms. This is where you get to define what your own “incapacity” means. You could, for example, require a specific number of doctors to declare you incapacitated. You could also call for a panel of experts to make the decision or simply designate a family member or loved one to decide — it is your decision how you define the term.

Once you have been declared incapacitated, your successor trustee will take over control of the trust. The benefit to this arrangement is that there is no need to seek court approval. Your successor trustee has immediate access to the trust funds to be used for your care or the care of your family.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Incapacity Planning

Jan 03, 2011  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

You will hear mention of the senior population explosion often when you are seeking information about elder law and estate planning. The baby boomers are today’s seniors, and this is the fastest growing group of American citizens. Furthermore, people 85 years of age and older are the fastest growing subset of the senior demographic. This has some very profound implications when you are trying to prepare for all of the eventualities of aging.

Nobody is anxious to think about scenarios that aren’t especially pleasant, but a challenging situation is only compounded by a lack of preparation. The above mentioned statistics would indicate that it is very possible that you will live beyond the age of 85. More than half of people over this age suffer from some form of dementia, and physical incapacity is not uncommon at this age either. This is something that is very important to consider and it takes some mental discipline to do so.

To prepare for the possibility of future incapacitation you can reduce the matter to a simple question: who would you like to empower to make medical and financial decisions in your behalf? You can have a different representative for each type of decision, and this is often recommended in many cases. The person that you know who is the best financial mind may not necessarily be the individual that you would want communicating with your doctors about medical matters.

To appoint someone to act as your medical representative you would execute both a durable medical power of attorney (Living Will), and a durable financial power of attorney to name your financial representative. When you have these documents in place you can rest easy with the knowledge that your own trusted representative will be acting in your best interests should you be unable to make sound decisions for yourself at some point in time.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Health Care Proxies & Unmarried Couples

Nov 29, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

When you are making plans for your twilight years it is important to make sure that your assets get to your heirs efficiently and effectively via a well executed estate plan. But it is also important to prepare for the possible eventualities that we all face toward the end of our lives. The segment of society that is 85-years-old and older is the fastest growing demographic in the United States, and when you recognize this fact it is prudent to prepare for the possibility of incapacitation at some point in time. This is not to say one should expect it; it is just a matter of being prepared “just in case,” and that is part of any type of planning.

When you take the possibility of incapacity into account with full recognition of the capabilities of medical science today, there is a looming possibility that is important for unmarried couples to address. Should you become incapacitated and fall into a terminal condition, decisions on whether or not you will be kept alive through artificial means may have to be made. If you are in a committed relationship but not legally married or registered domestic partners or civil union couples, and you are unable to make your own medical decisions, you would probably want your partner to make those decisions in your behalf.

If you were legally married, your spouse, registered domestic partner, or civil union partner, would automatically have the right to make the decisions in the event of your incapacitation. In other cases, your partner would not have the legal authority to do so; it is your next of kin who would assume that responsibility. So if you take the time to include a legal document called a health care proxy in your estate plan, the person of your choosing will be making your decisions for you should you be unable to do so for yourself, presumably with full knowledge of your wishes.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Long Term Care Costs Skyrocketing

Nov 24, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

As people continue to live longer lives and the capabilities of the medical industry expand, the need for careful long term planning becomes all the more important. Demographic statistics tell us that the segment of the population that is at least 85 years of age is growing faster than any other. If you retire at the typical age you now have perhaps three decades to plan for after your working days have come to a close. This is a long time and it is going to take a significant store of financial resources to make it through comfortably and preserve a legacy to pass on to your loved ones.

Considering this level of longevity many people will spend time in nursing homes or assisted living facilities, and the fact is that there is a significant cost involved. When you are planning for your retirement years it is important to take this into consideration.

MetLife conducts an annual study of the costs of long term care, and the numbers that they have published for 2010 will probably get your attention. The average annual charge for a private room in a nursing home was $83,585, which is a 4.6% increase over the 2009 national average of $79,935. The increase in the cost of residing in an assisted living community was even greater. In 2009 the average charge for a year was $37,572; in 2010 that figure had risen to $39,516.

These are the national averages, but as you might imagine, the costs of long term care in the state of New Jersey are much higher. The average cost of a private room in a nursing home in the Garden State was a whopping $112,000 in 2010, and being able to pay an expense of this magnitude late in life is not going to be easy for many people. Devising a strategy early on is key, and this is often best achieved with the assistance of an experienced professional.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Young Adults & Estate Planning

Nov 08, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Guardianship, Incapacity Planning, Parents with Young Children

The specialty of estate planning is in fact one aspect of elder law, so it is not surprising that it would be categorized out of hand as being something that younger people need not be concerned with. However, this is not entirely true. The minute someone else is depending on you in any way is the minute that estate planning becomes relevant to you.

Child Guardianship

When you have children the issue of guardianship is something that should be addressed. If you and your partner were to pass away in a fatal traffic accident, who would raise your children? This is a possibility that everyone should consider and it is a rudimentary staple of your estate plan if you have dependent children.

Life Insurance

During these times most young families depend on the combined income of both partners to make ends meet and maintain a particular standard of living. Should either party pass away in an accident or due to an unexpected illness, a significant financial void is likely to exist. Life insurance is the ideal income replacement vehicle, and it is important to make sure that your coverage is sufficient. Ask yourself how long your family will be able to get by given the coverage that you have. Do the math, review your coverage as the family grows, and make adjustments when necessary.

A Living Will

Looking out for your family in the event of your incapacitation or death is what estate planning is all about, and this extends beyond financial matters. You wouldn’t want your family to be faced with the prospect of having to make a life or death medical decision in your behalf without having full knowledge of your wishes. Through the execution of a living will, you can record your preferences concerning things like being kept alive on life support and take this agonizing decision out of the hands of your loved ones.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Should You Create Separate Medical and Financial POAs?

Oct 18, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Incapacity Planning

A Power of Attorney (POA) is a document that allows you to name someone to make a decision for you. Your Power of Attorney will dictate what decisions can be made and what your wishes are so they can be followed. For disability planning, there are two common types of POAs: medical and financial.

Medical POA

A Medical Power of Attorney allows your chosen medical agent to speak with your doctors about your care and to make medical decisions for you. This person is legally required to follow the medical dictates you have expressed to the agent as well as those listed in your POA.

Financial POA

A financial power of attorney can cover a one-time event while you are on a trip, or it can cover all financial decisions if you become mentally disabled. A financial power of attorney for disability is called a Durable Power of Attorney for Finances. Although it is intended to apply when you are disabled, it becomes effectice immediately so care should be taken as to who is in possession of this document. If you are planning to use your POA as part of a disability plan, make sure it is durable. If your POA is not durable, it will no longer work once you become disabled. You can use your POA to state what powers your agent.

Keeping Them SeparateIf you are using POAs for a disability plan it is best to keep them separate. In some states, the Medical POA is part of your Living Will (Advanced Directive). By creating separate documents, you can keep your medical choices private from your financial agent and your financial affairs private from your medical agent.
Naming Your Agents

Choosing an agent for your medical or financial needs is a process that should be taken seriously. Make sure you choose a medical agent who is good under pressure and who will honor your medical wishes. Your financial agent should be someone who is organized and good with finances. You may choose the same agent for both documents if you wish.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

What Are Your Duties as Attorney-in-Fact?

Sep 10, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Incapacity Planning

Have you been named as an Attorney-in-fact on a family member’s Power of Attorney (POA)? Your responsibilities may vary depending on the size of the assets in question and on what powers your loved one had granted to you.

Manage Business Affairs

If your family member owns part or all of a business, you may be in charge of helping to run that business or hiring someone to manage daily activities. As the attorney-in-fact, you will be able to make business decisions that benefit your loved one and sign documents on his or her behalf.

Receive Income

Your duties will likely include the ability to receive your loved one’s income. You may use this income only for the living expenses and medical care of the disabled individual and his or her family.

Manage Property

You may have to manage property, both personal and real. If you are managing real estate, your duties may include collecting rents, ensuring repairs are done and paying mortgages. In extreme cases, where money is needed for bills or medical care, you may assist with the sale of personal or real property at fair market value.


As attorney-in-fact you may be in charge of all estate financial accounts including: checking, personal savings, investments and retirement savings. All funds in these accounts should only be used to pay for expenses of the disabled individual and his or her immediate family. You may even manage current investments or invest funds in new ventures in order to provide your loved one’s estate with additional income. In such case, it is wise to get the advise of a professional in the investment field.

Durable versus Springing

The power of attorney that your loved one signs will be either Durable or Springing. If the Power of Attorney is Durable, you will have the ability to act as the attorney-in-fact as soon as the document is signed and notarized. A Durable Financial Power of Attorney is often used by married couples to allow the other to handle business arrangements or marital assets if one spouse is briefly unavailable.

If your family member signs a Springing Financial Power of Attorney, you will not become attorney-in-fact until he or she is diagnosed as mentally incapacitated by a doctor or doctors. This type of power can create financial hardship until the bank is convinced of the incapacity. Whether the document is durable or only springing, as attorney-in-fact, you must always act in the interest of the POA signer.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

What Does Your Advance Medical Directive Do?

Sep 01, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

Medical emergencies happen every day. You never know when a medical crisis could leave you mentally disabled or in a constant vegetative state and unable to make your own medical decisions. This is why you should have a disability plan. One of the most common disability planning devices is an Advance Medical Directive.

Choose a Health Care Agent

If you become incapacitated, this legal document allows you to name a friend or family member to speak with your doctors on your behalf and to make medical choices for you. Your health care agent will have full access to your medical care and can make real-time decisions on your behalf. When choosing your agent, select a trustworthy person who is good under pressure and will honor your wishes.

Avoid Conservatorship

A conservator or a guardian is a court-appointed and court-supervised individual who makes medical decisions for you. A conservatorship or guardianship puts all of your medical needs in the hands of the court. Your conservator or guardian may be slowed down by the legal process and therefore may not always be able to make quick decisions. He or she may also not be the person you would think best suited to care for your medical needs. By using an Advance Medical Directive and naming your Health Care Agent, you may avoid this problem.

Share Your Preferences

Having an Advance Medical Directive means your medical wishes will be considered. You should share your medical preferences with your chosen health care agent while you are healthy and mentally stable. You can also create a Living Will to go with your Directive. Using a Living Will with your Medical Directive allows you to state your preferences on life support and terminal illness treatment. If you don’t want to be on life support or if you want to avoid intense treatments that may do harm to your body, you can notify your health care agent and state your wishes in your Living Will.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

When is the Best Time for a Disability Plan?

Aug 23, 2010  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning

Have you ever considered the possibility that you could someday become mentally disabled or physically in a vegetative state? Not many people consider this, but this could happen at any time. For this reason, a disability plan is a vital part of estate planning, and you should begin your preparation today. Your disability plan will take care of your medical and financial needs in the event that you can no longer make decisions for yourself.

If a doctor should diagnose you as mentally disabled or in a long term vegetative state and you do not have a disability plan, a court of law will have to create a guardianship. The chosen person will be a court-supervised guardian who will make decisions for you. When you create a disability plan, you can keep the legal system out of your personal affairs and name who you wish to care for your needs.

Medical Needs

There are a variety of ways to prepare for your medical needs in the event of a disability. A Living Will (Advance Directive) is a common device used to state your desires regarding life support and terminal illness care. This document, however, is limited to only communicating on the issues you mention. If you wish to have an actual person speak for you, then you should consider a Medical Power of Attorney along with your Advance Directive. These documents will help assure that your wishes will be followed regarding your medical choices while you are incapacitated.

Financial Needs

It is also essential to consider your financial needs. You can use a Durable Power of Attorney to name a financial agent. This person will be able to make financial decisions for you while you are disabled including: paying bills, handling income, and controlling your investments. All financial acts performed must be with your interest and the interest of your family in mind. This agent will be able to pay for your long term medical bills and care as well.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.