Wintertime Reflections (Phase 2 Planning)

Taking your Planning to the next step. Let’s talk Phase 2 Planning…

In our last blog, we were talking about getting your ducks in a row, local sports (still a sore spot, haha), and winter time in Arkansas, among other things.  If you missed Wintertime Reflections – Part 1, be sure to go back and read it. It’s a precursor to what we’re talking about today; you will find a link to a checklist that you won’t want to miss!

After you gather all of the things we discussed in Part 1 of this short series, it’s important to start putting a plan into action.  As we mentioned in Part 1, the actual planning part is so easy to think about. However, it’s hard to convince yourself that it’s now time to actually do something about it.  Sometimes it takes a health event (“a shot over the bow”) or some other family tragedy to move this up to “let’s do it now status”. As a matter of fact, over 30 years ago, when we first started practicing law, I heard a quote that said 70% of Americans had no estate plan at all.  So if this number includes you, you are in very good company.

But given that you are reading this today tells me that you are ready to move into the lofty realm of the 30% who have done something.  If so, congratulations! Let’s get started.

Phase 2 Planning

As far as I know, there is no “one plan” that is right for everyone.  This is so, at least in part, because all families are different. All families have different needs, wants and desires; all have different resources and asset mix; and all have different family structures.  These factors and more all play a major role into the makeup of your estate plan.

In this article today, we will discuss some of those considerations and  will discuss a few typical estate planning tools that you will see when you start the Phase 2 Planning process.  Nothing mentioned herein is implied as a solution as to what is “right” or what you should do because, as we just mentioned, all families and every situation is different.  The best plan for you can only be determined after doing the homework mentioned here and in Part 1, then meeting with your Estate Planning or Elder Law Attorney to get your best plan in place for you.

With that said, let’s look at a few things that you will want to discuss with your attorney to get you started.

Who make financial decisions for you if incapacitated?

Who do you want managing your assets if you become incapacitated before you die?  When some people think about estate planning, they automatically think about “who gets my assets after I die” and totally skip the “what happens to me and who pays my bills if I’m incapacitated before I die” part.  This is a huge thing to consider, mostly because it directly involves you and your money.  In this situation, you would still be alive and someone else would be using your money for your benefit.  It’s important to appoint the right person(s) that you want to act on your behalf and to state how you want your money to be used.  

To properly think about this, you may want to have conversations with your spouse (if married) or other trusted advisers, your Adult Child(ren) that you are thinking of appointing and (of course) your attorney.  This section may involve powers of attorney, trusts and/or other financial and legal documents. Personally, I find Phase 2 Planning to include some of the most crucial planning decisions

Who makes health care decisons for you if you become incapacitated?

Who do you want making health care decisions for you if you become incapacitated before you die.  For example, my Mom had a stroke two years prior to her eventual death. The only thing fortunate about this unfortunate situation was that she had executed a Health Care Power of Attorney. Without this, my brother and I may have had to go to Court to obtain a guardianship to be allowed to make routine (and not so routine) health care decisions on her behalf. Health care documents which may also include Private Living Wills, HIPAA Authorizations (learn your rights under HIPAA), DNR Orders (from your physician) and other legal documents, are critical to have because they directly involve your health care.

We see so many folks who skip this step or who sign one of the pre-printed one page forms at the hospital just prior to surgery. After having gone down this road with my Mom and with hundreds of clients, I feel that this is one of the most important things to plan for and deserves as much time and discussion with family as other areas of your plan.

Care Planning Documents

Even more people skip this step.  As a matter of fact, few attorneys delve into this area since it incorporates planning just outside the typical preparation of estate planning documents.  This part of Phase 2 Planning looks at the following factors:

  1. If you become physically or cognitively incapacitated before you die, who do you want making day-to-day decisions for you?
  2. Where do you want to be?  Home or a facility?
  3. If at home, do you want, non-medical home care or family?
  4. Which family members do you want helping?  Are they willing and available to help?
  5. Have you communicated your preferences to your family?
  6. How will this care be financed?  Private pay, liquidating assets, long term care insurance, family assistance, government assistance (to mention a few).
  7. Have you and your trusted agents (if you wish) met with your Financial Advisers recently?
  8. Are assets invested appropriately?  Can they be accessed quickly for your benefit?  Will withdrawals be taxable? Subject to withdrawal penalties?
  9. Are your legal documents in place?  When is the last time you and your trusted agents (if you wish) have met with your attorney for a review?

Wait… There’s MORE!

These are a few of the things to consider.  These (and more) are listed in checklist format in the attached Phase 2 Checklist.  See below to download.

After having reviewed Phase 1 and Phase 2, I’m sure you now understand how important it is to do this planning while you can.  Capacity is a slippery slope. When you lose it, it may be too late to do the planning that you have always thought about but never got around to doing.

But what if you do all of the above and the worst happens – your health declines to the point where a Nursing Home decision has to be made.  What do you do and how do you protect your hard earned assets? How do you keep everything from having to be spent down for your care. And if you have a well spouse at home, how do you protect some of your assets and income for their benefit?  

We will discuss that – and more next time in Phase 3 Planning.

Next Step

If it’s time for you to get moving on your estate plan, download the Phase 2 Checklist to discover a few things to consider prior to meeting with your attorney.  Your attorney will have their own checklist with other questions for you to answer and to think about, but getting this (and Phase 1) information together prior to your meeting is a great start.

Best wishes to you as you do your Phase 2 Planning.  If you are in Arkansas and need assistance with this, just give us a call or email us at support@arkelderlaw.com.  If you live in another state, then contact an Elder Law or Estate Planning attorney in your area for assistance.

Thank You for being a Caregiver for Your Loved One – you are making a huge difference in their life!

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