Estate Planning FAQs

What Is A Patient Authorization — HIPAA?

The patient authorization is prepared in compliance with federal law and supplements the health care power of attorney authorization. The Health Insurance Portability and Accountability Act (HIPAA) requires a stand-alone authorization for the permitted use and disclosure of your protected health information. Your health care provider may request this authorization even though such authorization may already be set out in your power of attorney.

What Is A Durable Power Of Attorney For Health Care?

Your health care power of attorney designates your agent to make health care decisions for you should you be unable to make them for yourself. Your health care power of attorney also instructs your agent to follow your wishes as contained in your living will.

What Is A Living Will Declaration?

A living will is your declaration under Ohio law that you do not want your life to be artificially prolonged or heroic measures taken to sustain your life at the time of a terminal illness or when you are in a permanently unconscious state. Your living will also requires that your attending physician notify your selected agent in the event that the withdrawal or withholding of life sustaining treatment is being considered. It further provides your wishes as to anatomical gifts and/or to verify your enrollment as an organ donor.

What Is A Durable General Power Of Attorney For Finances And Nomination Of Guardian?

Your durable general power of attorney and nomination of guardian is a legal document that allows you to name another individual to take all legal action on your behalf in your name, in the same capacity as you could do for yourself. This durable general power of attorney may allow your family to avoid the necessity of going through the procedure of establishing a guardianship through the probate court should you no longer be able to manage your own affairs. If a guardianship is required, this document provides for your selection of the person to serve as your guardian.

A durable general power of attorney is an estate planning tool to allow your agent to act on your behalf. Therefore, the choice is an important one because the named attorney in fact will have the power to transfer your property, access bank accounts, etc. As you may expressly provide in the document. The authority granted by the durable general power of attorney ceases upon your death.

What Is A Revocable Trust Agreement?

Your revocable trust provides that the assets transferred thereto will be for your benefit during your lifetime and with distribution to your spouse, children and grandchildren under the terms stated. This is a revocable trust that means you may amend or revoke the trust as you see fit.

What Is A Last Will And Testament?

A Last Will and Testament (“Will”) addresses the disposition of your probate assets at the time of your death. Please note that your Will does not govern property that is already designated by way of specific beneficiary designations, joint and survivorship accounts, payable-on-death accounts, transfer on death accounts, beneficiaries under life insurance policies, or pension plans. In your plan, your Will provides for distribution to your trust spouse, children or grandchildren. Your Will also appoints an executor who will oversee the distribution of the probate estate. Your Will also further provides your designation of who shall serve as guardian for your minor children.

Is It A Good Estate Plan To Put One Child On All My Accounts And Just Have Them Divide It When I Die?

No. Even if the child is your sole heir, several issues can arise and create significant turmoil for you and your family in the resolution of your affairs and estate. Even if your child is well intentioned, complications can arise with regard to tax issues, your child’s creditor issues, lack of capacity of your child at the time of death, and legal presumption of ownership upon death of a joint account holder.

The best methods of establishing your estate plan are through the use of a Will and/or trust.

Can My Agent Under My Power Of Attorney Pay For My Expenses For Funeral After My Death From My Personal Accounts Or Use My Credit Card To Pay For It?

No. The agent under a power of attorney can no longer incur credit on your behalf or continue to pay your bills once you die. The authority granted to the agent terminates automatically upon your death.

Does Having A Will Avoid My Estate Going Through Probate?

No. Having a Will is an important document that is recommended to all clients. However, it does not avoid probate but is presented to the court with your selection as to an executor, or guardian for your child, as well as how the executor is to distribute the remaining assets after the payment of expenses. An executor appointed under a Will must obtain approval and authority from the probate court in order to proceed.

Does The Will Control Who Receives All My Assets?

No. A Will only directs who the beneficiary will be for those assets that are considered “probate” assets. If you own a bank account, stock or your home in your name alone this would be considered a probate asset upon your death. Other assets such as life insurance, retirement accounts, transfer on death accounts or real estate in which you have designated a beneficiary, for which the beneficiary survives you, are not considered probate assets and not controlled by the will in distribution.

Can I Avoid Probate Without A Trust?

Yes. In certain circumstances, it may be beneficial and more cost-effective to provide for distribution, by transfer on death designations. Recently, there have been changes in the law that will allow married couples to designate who would receive their residence or other real estate upon both of their deaths, without having a trust or going through probate. However, this only avoids probate if the designated beneficiary is living at the time of your death.

How Can A Trust Help Me?

There are many reasons clients choose to set up a trust. Some of the benefits in setting up a trust that you should consider are: avoidance of probate and privacy with respect to your distribution plans, possible avoidance or minimizing estate taxes, maintaining a fund to provide for the care of a beneficiary without outright distribution indefinitely or until the beneficiary reaches a certain age, while avoiding forced distribution to the beneficiary or their creditors, or interfering with federal assistance where an outright transfer to a beneficiary would render them otherwise ineligible.