In Being Mortal, an incredibly rich and revealing book about what people care about as they age, Dr. Atul Gawande described how impressed he was by the importance people placed on maintaining control of their lives.
Estate planning helps you maintain control during, and after, your life by allowing you to make decisions now to carry out your wishes later. Just as our lives and circumstances change frequently, so does the law. We visit our dentists and doctors regularly for a "check-up." When did you last schedule a "check-up" of your estate planning documents? Are your documents up-to-date (or are they outdated)? Here are just a few updates that may affect you and your ability to control your health and finances:
Power of Attorney. Certain powers in a Power of Attorney can be misused during your lifetime to deplete your assets or alter your estate plan. In Ohio, powers that easily can be misused to your detriment are known as "hot powers." These powers include the following:
a) create, amend, revoke or terminate your trust;
b) make a gift from your funds;
c) create or change rights of survivorship that you designated;
d) create or change a beneficiary designation that you established;
e) delegate authority granted under the Power of Attorney to someone else;
f) waive your right to be the beneficiary of a joint and survivor annuity.
Make certain that your Power of Attorney addresses "hot powers" by specifically including or excluding them. It is not only important to choose a trusted family member or friend to handle your finances when you need assistance, it is also important to be clear about what your agent/attorney-in-fact can and cannot do on your behalf.
Do you have an email account, do online banking, are on Facebook, or have online investment accounts? Do you blog, have a domain name, or store information or photos online? Your Power of Attorney should explicitly address your wishes regarding your digital assets so that your agent/attorney-in-fact can continue, for example, to pay your bills and monitor your investments on your behalf. If your Power of Attorney does not address "hot powers" or digital assets, now is the time to update this important estate planning document.
Health Care Power of Attorney. In 2014, Ohio modified its Health Care Powers of Attorney. You may now authorize a trusted family member or friend to obtain your privileged health care information at any time, not just when you are incapacitated (as was previously required). By selecting someone that you choose to speak with your doctor about your medications, diagnosis, treatments and other matters, you control who has access to your confidential health information.
The new law also gives you the ability to choose a guardian to act on your behalf if a guardianship becomes necessary for you or for your finances. By naming a trusted family member or friend of your choice, you control who will manage your day-to-day activities and look after your finances if a guardianship is required.
These two updates give you much more control, but only if you choose to exercise it. If you haven't already done so, you should complete a new Health Care Power of Attorney.
Appointment of Representative for Disposition of Remains. Ohio law strictly regulates cremation. Even though you may have pre-planned your funeral, if you have not signed a "cremation authorization form," your funeral provider may refuse cremation upon your death. In fact, your funeral or memorial service could be postponed while written consent is sought from all of your family members. To avoid this unexpected outcome, you may, during your lifetime, designate a representative to make funeral and burial arrangements (including cremation) for you. Make certain that your wishes are carried out by completing an Appointment of Representative for Disposition of Remains and appointing a trusted family member or friend to act as your representative after your death.
Maintaining control during your lifetime and after your death can be challenging, but setting up an estate plan and updating it on a regular basis can help you achieve the control you desire. It is important to meet with your trusted legal advisor on an annual basis to discuss changes in your life, your circumstances, and the law.
By Lu Ann Stanley.