California Probate - Law Offices of Janet Brewer Blog

Can I Make My Retirement Plan My Estate Plan?

“People are worried about the possibility of a sudden death due to COVID-19, and they want to get their legal affairs in order. Exacerbating the situation are the stories we read in the media about patients who are unable to communicate with loved ones, and hospitals that, because of the exigent circumstances, are creating their own do-not-resuscitate (DNR) rules—even if they conflict with the patient’s wishes.”

If you’re in a situation where you must quickly create or update your estate plan, here are some suggestions that might help you. Every situation is different, Forbes’ article “Seven Tips For Converting Your Retirement Plan To Your Estate Plan,” says, but these some tips that may start the process.

1. Speak with an experienced estate planning attorney. An experienced estate planning attorney will help make certain that your documents make sense for your situation and are legally drafted. Contact our office today to schedule your consultation.

2. Create your will. You can only have one valid will, and it should be made under the state laws of your domicile with the help of an experienced estate planning attorney.

3. Draft Power(s) of Attorney. A Power of Attorney (POA) is a legal document through which you appoint the person you want (your “agent”) to act on your behalf if you are unable to do so, usually because of physical or mental incapacity. POAs are best created using the rules of the state in which you anticipate their use.

4. Complete your HIPAA releases. If you have designated an agent under your medical Power of Attorney, but she doesn’t have HIPPA authority to be informed of your medical condition, it will be a hassle. HIPAA is designed to protect a person’s health information privacy. Sign a HIPAA Release Form for your POA agent in advance, to avoid headaches for your family.

5. Draft a living will or advanced directive. This document states your preferences for life sustaining treatment. Living wills generally have provisions related to end-of-life care and require the maker's and witnesses' signatures to make them legally binding—but this varies in each state.

6. Understand the POLST process. A Physician Orders for Life-Sustaining Treatment (POLST) order is a medical order. The process improves communication of a person’s decisions to accept or decline medical intervention and to make certain that these decisions are honored. Advanced directives and POAs are important, and generally should be filed with your physician and hospital, but a POLST order is in many medical emergency situations the one form the doctor will see.

7. Create a document storage plan. Estate planning forms should be kept in places where they are easily accessed. Don’t place them in a safety deposit box, because of rules banks have about access after the box holder’s death.

Reference: Forbes (April 9, 2020) “Seven Tips For Converting Your Retirement Plan To Your Estate Plan”

Why Do I Need an Advanced Healthcare Directive?

“An advanced healthcare directive - also known as a living will - is a legal document in which a person lists the specifics of medical care and comfort actions they desire, should the individual no longer be able to make decisions for themselves due to illness or incapacity.”

During the prime of our lives, we typically don't give much attention to thoughts about becoming seriously ill or about the end of life. Conversations about sickness and your own mortality aren’t easy topics to raise. However, it’s important for us to approach these heavy topics with our families, so we rest easy knowing their needs will be met if or when our health fails.

Rome News-Tribune’s recent article entitled “Things to know before drafting a living will” explains that an advanced healthcare directive, also called a living will, is a legal document in which you can detail the specific types of medical care and comfort treatment that you want, if you are unable to make decisions for yourself because of illness or incapacity. A living will can state whether life support should be used and whether pain medication should be administered.

A living will is separate and distinct from a traditional will. A will is a legal document that states how you would like your assets distributed after you pass away.

A living will is not always required, if you don’t have any strong feelings about the decisions made on your behalf while you are incapacitated. However, if you do want to provide instruction about your treatment and care, a living will is the best way to be certain that your choices will be carried out. Here are some other questions you may want to ask yourself about a living will.

• Do I want to eliminate the stress of difficult decisions from my family?  A living will can relieve your grieving family of the responsibility of making very tough decisions of invoking lifesaving (“heroic”) measures.
• Do I have strong feelings about life-saving methods? A living will allows you to state your exact preferences on feeding tubes, life support when brain function is minimal and many other circumstances.
• Do I have a trusted person who is able to carry out wishes? A health care proxy is an individual that you name and give the power to make decisions for you, if you are unable to express your preferences for medical treatment. Along with a living will, the health care proxy or “durable medical power of attorney” can fulfill your wishes accordingly.

Ask your estate planning attorney about this important component of medical and estate planning. You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Rome News-Tribune (March 7, 2020) “Things to know before drafting a living will”

Are Vets Using Remote Mental Health Care During the Pandemic?

“Remote mental health care use among Veterans Affairs patients jumped dramatically last month as normal medical care appointments were disrupted and veterans forced into self-isolation because of the ongoing coronavirus pandemic.”

Vets are really taking advantage of remote mental health care in the COVID-19 pandemic. Most significant were mental health care check-ins and consultations done over the phone. In February, those totaled about 40,000 appointments. In March, they topped 154,000, a nearly 400% increase.

Military Times’ recent article entitled “Veterans’ remote mental health appointments skyrocket amid coronavirus outbreak” reports that Veterans Affairs officials say the number of mental health appointments conducted through online video chats with physicians rose from about 20,000 in February to 34,000 in March, an increase of 70%. Another 2,700 online video group therapy appointments were conducted in March—an almost 200% jump from the previous month.

VA officials have already noted significant increases in use of the Veterans Crisis Line. However, they said that many of the additional callers aren’t facing suicidal thoughts. Instead, numerous veterans and family members have called for information on existing resources or for help getting alternative mental health care programs.

In a statement, VA Secretary Robert Wilkie said that the department’s “early embrace of new technology” is helping veterans.

“VA is open for business and we continue to provide same-day mental health services and mental health screening for veterans at-risk, who require attention at any of our facilities,” he said.

Many VA programs and protocols have been disrupted in the last month by the coronavirus outbreak, with healthcare professionals throughout the country working to address a steadily increasing number of cases.

As of April 10, 200 VA patients had died from the illness, and more than 3,500 others tested positive.  More than 1,100 VA employees have also contracted the virus, and at least seven have died.

The VA’s new safety precautions have cancelled thousands of non-essential medical appointments at VA hospitals across the country, but those with emergencies are still being admitted to the facilities.

Roughly 17 veterans a day die by suicide, according to the latest department data. There was to be a new government-wide effort announced by the White House and VA on veteran suicide prevention last month, but that announcement was delayed by the COVID-19 outbreak. Congress has earmarked $19.6 billion in emergency funding for the VA in their coronavirus stimulus package. Of that, $3.1 billion was to be used for new telemedicine efforts within VA, to increase health care access for veterans quarantined at home.

Veterans experiencing a mental health emergency can contact the Veteran Crisis Line at 1-800-273-8255 and select option 1 for a VA staffer. Veterans, troops, or their family members can also text 838255 or visit VeteransCrisisLine.net for assistance.

Reference: Military Times (April 13, 2020) “Veterans’ remote mental health appointments skyrocket amid coronavirus outbreak”

What Do I Need to Retire?

“One of the biggest threats to your financial security isn’t the markets, interest rates or even your job security. It is a lack of preparation, particularly for unexpected events, that usually leaves investors reeling when markets swoon. If you haven’t protected yourself from the potential downsides in life, after all, then it’s difficult to maneuver when the unforeseen strikes.”

Research from the Employee Benefit Research Institute’s Retirement Confidence Survey shows a lack of preparation in retirement planning. According to the annual survey, 66% of those 55 years and older said they were confident they had sufficient savings to live comfortably throughout retirement. However, just 48% within the same age group haven’t figured out their retirement needs.

Kiplinger’s article entitled “Ready to Retire? Not Until You've Done These 3 Things” says knowing where you are now and knowing what you’ll need and want in retirement are important to protect your portfolio throughout your golden years. If you want to retire at 65, then age 55 is when you’ll want to start making some important decisions.

Let’s look at three steps to take in your last decade of your working years to help create a safety net for a long retirement:

At 10 years or more before retirement, you should diversify your tax exposure. You may have a large portion of your portfolio in an employer sponsored 401(k) or in IRAs. These tax-deferred accounts give you plenty of benefits now, because you’re not taxed on the contributions. At age 50 and older, you can make additional catch-up contributions that let you put away $26,000 in 2020 in your 401(k) each year. Because you’re probably going to pay a lower tax rate in retirement when you begin taking taxable withdrawals, it gives you a nice tax advantage today.

In the years before your retirement, build assets in tax-free accounts for flexibility, so you can keep tax costs down in retirement. Assets in a Roth IRA or a Roth account within your 401(k) can give you a source of tax-free income in retirement. You paid taxes on the money you put into a Roth, so it grows tax-free and withdrawals after age 59½ are income tax free. If you’re over 50, then you can add up to $7,000 into the account this year.

When you are five years from retirement, create a health care plan. A huge expense in retirement is health care. Plan for out-of-pocket health care costs as well as long-term care. Taking advantage of a health savings account, if you’re in a high-deductible health insurance plan is a good way to save for the out-of-pocket health care expenses that won’t be covered by Medicare or your private health insurance. You can fund an HSA up to $7,100 for families ($8,100 if you’re 55 or older). Contributions are made on a pre-tax basis, so your account grows tax free, and withdrawals are tax- and penalty-free, if used for qualified health care expenses. You should also look at long-term care insurance.

When you’re just a year from retirement, start spending as if you’re already retired. Be sure you can live comfortably, when spending at your retirement budget.

No one can see the future, but you may be able to limit the effects of shocks to your retirement savings.  Adding in these layers of protection at least 10 years prior to retirement, can help you secure your retirement goals.

Reference: Kiplinger (Jan. 24, 2020) “Ready to Retire? Not Until You've Done These 3 Things”

Have You Prepared End-Of-Life Decisions?

“Unless you are a spring breaker partying it up, you have probably given your own mortality a once-over or two during these long COVID-19 days.”

Florida Today’s recent article entitled “As COVID-19 spreads, are your end-of-life directives in order?” explains that the Conversation Project surveyed Americans about the need for end-of-life directives. About 92% of respondents thought it important to discuss their wishes for end-of-life care and 95% of them are willing to talk about these wishes. However, just 32% have actually gone ahead and had the discussion.

With the threat of COVID-19, there’s a sudden urgency to engaging in discussions of end-of-life treatment. Although the young and healthy are more apt to fight through the illness, the elderly and the infirm are not likely to survive, despite using a ventilator. It’s hard to put someone on a ventilator and even harder to have it removed, when there’s no chance of recovery.

For example, if you didn’t have a healthcare directive and you ended up on a ventilator—but that wasn’t what you wanted—you could live a long time in a nursing home with a very poor quality of life. Without an advance directive and if you’re not able to speak for yourself and haven’t named an agent, the state will appoint a guardian to make these critical decisions. This will be a person who knows nothing about you but will have the authority to make decisions about your health and well-being. If your family is found, and they disagree with the guardian, it can be a big problem.

Name someone who can speak for you, when you can no longer do so. Tell them your wishes for end-of-life care. Your agent will need to make tough, quick decisions on your behalf. The next step is to complete a health care proxy or power of attorney. This is a legal document in which you appoint the person to be your agent, when health care decisions need to be made and you can’t speak for yourself.

You should have your attorney prepare an advance directive or living will. This is another legal document that states your wishes regarding end-of-life medical care and delineates treatments you do or not want.

Give your agent a copy of your living will. You should also give a copy to your primary care physician and to anyone else you think should have it. Keep a copy available for yourself. Let your family know where the document can be located.

Your advance directives should provide instructions on DNR (“do not resuscitate”) and the use of a ventilator or tube feeding, hospice and palliative care and organ donation. It’s not a pleasant topic, but the time to discuss it is before you’re headed for the hospital.

We can help you create or update your complete plan, simply call or email us today.

Reference: Florida Today (April 14, 2020) “As COVID-19 spreads, are your end-of-life directives in order?”

Experts Identifying New Symptoms of COVID-19

Fever, cough, and shortness of breath were early on identified as symptoms of COVID-19, but additional symptoms are emerging.

When the coronavirus first appeared earlier this year, experts identified fever, cough and shortness of breath as the primary symptoms of COVID-19, the disease caused by the virus. But as they learn more about the disease, especially in milder cases that don’t require hospitalized, experts are now reporting more tell-tale symptoms.

While some of these symptoms, such as loss of smell or taste are fairly unique to COVID-19, others, like headaches, chills or sore throat, are common to lots of illnesses. So how do you know when to seek medical advice or testing?

Doctors and public health officials offer these guidelines:

Fever. Any fever that cannot be attributed to something else is a strong indicator of infection and should be evaluated. Fever is reported in 82 to 87 percent of all confirmed COVID-19 cases.

Dry Cough or Shortness of Breath. Dry cough is another common symptom, reported in almost two thirds of all COVID-19 patients. A recently developed dry cough or shortness of breath should be tested.

Newly Identified Symptoms

If you experience any of these six newly-identified symptoms, definitely consult your health professional: chills, muscle pain, headache, sore throat, loss of taste, or loss of smell. If you experience any of these symptoms, particularly in combination with other red flags, experts advise you should consider self-quarantine and contact your health care professional.

Resource: National Public Radio, From Loss Of Smell To 'COVID Toes': What Experts Are Learning About Symptoms, May 6, 2020.

COVID-19 Bringing Out Scammers Who Target the Elderly

While some of you are home, practicing social distancing and frequent hand washing to avoid the Coronavirus, remember that scammers are still busy trying to take advantage of people.

The Federal Trade Commission (FTC) tells us that the pandemic is bringing out the worst of scammers, peddling COVID-19 cures and treatments, and finding new ways to get your money or personal information.

Here are their top tips to avoid being scammed:

• Remember: right now, there is nothing that has been proven to prevent COVID-19. If anyone tries to sell you a cure or a preventative – especially over the phone – just hang up.
• Anyone who tells you to pay them by gift card, money transfer, cash, or Bitcoin is a scammer. Period. And, if they say they’re from the government, they’re not.
• Never give your Social Security, bank account, or credit card number to anyone who contacts you. Again, not even if they say they’re from the government.
• Don’t be rushed. Whatever the call, email, text, or social media post is about, remember that scammers try to rush you. Legit people don’t.
• Check it out. Before you act on something or share it – stop. Do some research. Do the facts back up the story?

The FTC also reports a rash of scammers pretending to be from the Social Security Administration (SSA), trying to get your Social Security number or your money.

Here's what to know:

• Do not trust caller ID. Scam calls may show up on caller ID as the Social Security Administration and look like the agency’s real number, but it’s not the SSA calling.
• Your Social Security number is not about to be suspended. And your bank accounts are not about to be seized.
• Don’t verify your Social Security number or any other personal information to anyone who calls out of the blue. If you already did, visit IdentityTheft.gov/SSA to find out what steps you can take to protect your credit and your identity.
• SSA will never call to threaten your benefits or tell you to wire money, send cash, or put money on gift cards. Anyone who tells you to do those things is a scammer. Every time.

Here’s a great video on avoiding Social Security scams

Read more about recent scams and how to recognize the warning signs

Resources: Federal Trade Commission, 60 and Over in the Time of Covid? Read This, March 30, 2020 and Avoiding SSA scams during COVID-19, April 7, 2020.

All the Medical Treatment Estate Planning Documents You Need to Sign

When trying to get your affairs in order, you may wonder which medical treatment estate planning documents you need to sign. In no particular order, you can choose to sign an advance directive, a power of attorney, a living will, a POLST form, or a DNR form.

Advance Directive

An advance directive combines a medical power of attorney and a living will into one document. You can designate an agent to make medical decisions for you, explain which life-saving or -sustaining treatments you want to receive, and specify end-of-life wishes. An advance directive could contain instructions about when to remove life support, organ donation, last rites, making anatomical donations, funeral arrangements, and more.

Power of Attorney

A medical power of attorney gives a specified person, called an agent, the legal power to make medical decisions for you if you are incapacitated. You can specify in the power of attorney document which decisions the agent can make, or you can leave it open and allow the agent to make all necessary decisions. You should notify the agent that you choose so he or she knows to act in an emergency. Consider discussing your wishes in depth with your agent as well.

Living Will

A living will explains your end-of-life wishes, including your wishes for life-sustaining treatment or lack thereof. For example, you can detail whether you want doctors to put you on life support, whether you want intubation or feeding tubes, and what you want to have happen to your body after death (organ donation, burial, or other options).

POLST Form

Similar to an advance directive or living will, a California Physician Orders for Life-Sustaining Treatment (POLST) form specifies which life-sustaining treatment you want to receive. You can check boxes to receive defibrillation or CPR, IV medications, or other kinds of treatment. If you have specific preferences about treatments you do not want to receive, a POLST may be a good idea.

DNR Form

Finally, a Do Not Resuscitate (DNR) form tells doctors not to perform life-saving measures if your heart stops beating or you stop breathing. If you choose to fill out this form, you’ll want to carry copies with you or have it on file with your doctors.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Helping Seniors Battle the Unspoken COVID-19 Toll: Loneliness

We should take this opportunity to learn again what it really means to be social and find new forms of social connection.

Social distancing is a new term we have all become familiar with over the past several weeks. An essential step in reducing transmission of the coronavirus, it’s important to note that distancing also can cause social isolation and loneliness. Although this can affect anyone, regardless of age, the elderly are particularly vulnerable at this time.

What exactly is loneliness? We have all experienced loneliness at some time, but a more refined understanding can help us help our loved ones.  While social isolation is simply not being around other people, loneliness is a subjective feeling – a sense of suffering from being disconnected from other people. In other words, social isolation may lead to feelings of loneliness. Studies have linked these persistent feelings to higher risks of conditions like heart disease, high blood pressure, anxiety, depression, and even death.

How to Help

Experts offer guidance on how we can help our elderly loved ones combat feelings of loneliness and avoid their negative mental and physical health consequences.

Some tips:

• Help with the technology for video chats and social media.
• Set up regular phone calls or video chats on a daily or weekly routine.
• Explore online learning opportunities, especially those designed especially for seniors.
• Help your elderly loved ones to change their expectations for the time being, and understand that this situation is temporary.

Resources: ABC News, The unspoken COVID-19 toll on the elderly: Loneliness, April 14, 2020.

Is Your Estate Plan COVID19-Ready? Three Things to Review Now

Unique aspects of the coronavirus pandemic may cause you to re-evaluate some elements of your current estate plan.

Even if you have done comprehensive estate planning with the guidance of a qualified attorney, you may want to re-evaluate certain elements of your plan now, through the lens of the coronavirus pandemic.

Why? There are two uniquely challenging aspects of this pandemic that your current plan may not adequately address.

1. Medical treatment for severe cases of COVID19 frequently involves intubation and ventilator therapy to combat respiratory failure … and
2. Quarantine and isolation orders blocking hospital visitors create some communication barriers between patients, doctors and family members.

How might these unique challenges impact your estate plan?

Living Wills. If your living will contains a blanket prohibition on intubation, you may want to reconsider that decision.

Durable Powers of Attorney (DPOA). Given the communication difficulties that may arise when a patient is hospitalized during this pandemic, you may want to revisit the terms of your DPOA to make it easier for your agent to act on your behalf.

Health Care Proxy. A health care proxy allows you to appoint someone else to act as your agent for medical decisions. Under normal circumstances, this person would likely confer with your attending physicians in person and again, these in-person communications may be difficult right now. You want to add language to expressly authorize electronic communication with your agent.

A qualified estate planning attorney, who focuses exclusively in this area of the law, can advise you on whether your current plans accurately represent your wishes during this uniquely challenging time. We are here for you today. Please call or email today.

Resource: ElderLawAnswers, Three Changes You May Want to Make to Your Estate Plan Now Due to the Pandemic, April 30, 2020