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Whom Should I Appoint As My Healthcare Proxy or Agent?

Most people avoid thinking about their mortality as much as possible.  COVID-19, however, has pushed the topic into the spotlight and prompted many people to think about their end-of-life wishes.  But, deciding what kind of care you want to receive if you become seriously ill isn’t the end of the discussion.  You should also consider whether you want to appoint another person to help carry out your end-of-life wishes and/or make medical decisions for you if you become unable to do so.

There are two main ways to appoint another person to assist with your medical decision making:  (1) a Health Care Proxy designation in an Advance Directive; or (2) a Health Care Agent designation in a Power of Attorney for Healthcare.

Advance Directive – “Health Care Proxy”

An Advance Directive, also called a “living will,” is a document you can use to describe ahead of time the kind of medical care you would or would not want in certain end-of-life situations.  You can also use an Advance Directive to appoint a health care “proxy” – a person who can make end-of-life decisions and speak for you if you are too sick to speak for yourself. You can state in your directive whether you want your proxy to be able to make decisions about things that are not covered in the form, or if you want to give your proxy the power to make final decisions about your care, even if those decisions are different from what you chose in the advance directive.

Power of Attorney for Healthcare – “Health Care Agent”

A Power of Attorney for Healthcare also allows you to give another person authority over some of your medical care. Unlike an Advance Directive, however, a Power of Attorney for Healthcare is not limited to end-of-life situations. Instead, a medical Power of Attorney can give another person authority to hire and fire your doctors, consent to medical treatment beyond end-of-life care, access your medical records, and perform other tasks related to your healthcare.

An experienced attorney can combine the “living will” aspect of an Advance Directive with a Power of Attorney for Healthcare to give you a complete medical planning document that is tailored to your individual needs and wishes.  This combined document can cover both your end-of-life decision making as well as other aspects of your medical care.

What Kinds of Decisions Will My Proxy or Agent Make for Me?

It’s important to note that you do not lose your decision-making authority after you appoint a healthcare proxy or a healthcare agent. As long as you can communicate your wishes they will be honored.  It is only after you become unable to communicate your wishes that your proxy or agent will step in to speak on your behalf. 

Both an Advance Directive and a Power of Attorney for Healthcare can be written in such a way as to control the amount of authority given to your proxy or agent.

For example, your Advance Directive can direct that your proxy precisely follow your wishes as you outline them in your Advance Directive, essentially making the proxy your mouthpiece to enforce your end-of-life decisions and giving him or her no discretion at all.  On the other hand, a Power of Attorney for Healthcare can give your healthcare agent broader powers to make medical decisions on your behalf, even outside of end-of-life situations.   The Power of Attorney typically provides that your agent is allowed to make medical decisions – or certain kinds of medical decisions –  for you only if you are unable to communicate for yourself. Even then, your agent will be charged with aligning his or her decision with what you would choose for yourself if you were able to communicate.

Who Should I Appoint as My Proxy or Agent?

Regardless of how your Advance Directive or you Power of Attorney for Healthcare is drafted and how much latitude you give your proxy or agent in the document, you should carefully choose an adult who knows you well and whom you trust to serve in that role.  Many people choose a family member as their proxy and/or agent, but a close, trusted friend can also be a good choice.  Whomever you choose should live nearby or be able to travel to where you live if needed. You should not choose one of your doctors or other medical care providers or any of their relatives.

It is important that the person you name as your proxy and/or agent is be willing to accept the responsibility of serving in that role.

They should also be someone you feel comfortable discussing your healthcare priorities, your personal and spiritual values, and your end-of-life decisions with now.  The more information your proxy or agent has about what’s important to you regarding these medical decisions, the better job he or she can do in communicating your wishes to your medical providers. While having these discussions with the person you would like to appoint, you may discover that the potential proxy opposes your choices and therefore would not feel comfortable enforcing them for you.   Such a person would of course not be a good choice to serve your proxy or agent.

Your proxy or agent should also be someone you trust to handle conflicting opinions from other interested family and friends and to be a strong advocate for you if a doctor or medical institution is unresponsive. It is not uncommon for family members and friends to disagree about kind of care should be provided to a loved one.  Your proxy should be someone who is assertive enough to follow your wishes despite conflicts among other people who care about you.

In other words, because your proxy will be dealing with life or death choices, the person you select should be someone you quite literally trust with your life!

 

Alternate Proxy or Agent

You can also appoint a second person to serve as your “alternate” or “successor” proxy in your Advance Directive or agent in your Power of Attorney for Healthcare.  The alternate will step in if your first choice is unwilling or unable to act as your proxy or agent.

Are You Ready to Name a Healthcare Proxy or Agent?

Having an advance plan for your medical care is a valuable part of a complete estate plan, and can give you the peace of mind of knowing that your values and wishes will be honored.  You can also take comfort in knowing that your loved ones will have a written record of your wishes to guide them in the unfortunate event that you become too ill to communicate about your medical care.

Our attorneys are experienced in helping clients record their healthcare wishes via Advance Directives and Powers of Attorney for Healthcare.  Call our Tuscaloosa office at 205-553-5353 today to set up an appointment to discuss your options.  Nervous about leaving the house given the current pandemic?  Lewis, Lewis & Falkner can help you prepare your estate plan remotely in the safety and comfort of your own home.

Already have an estate plan, including an Advance Directive?  Now is a great time to review your documents and confirm that they still meet your needs.

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Estate Planning During the COVID-19 Pandemic

Recent events have prompted many people to consider the “what ifs” of serious illness.  What if you’re too ill to handle your business affairs?  What if you become unconscious and cannot communicate with your doctors?  What if you become so ill that you die?

None of us can predict the future, so we cannot know if or when we will become seriously ill or when we will die.  We can, however, do our best to prepare for those unfortunate events by doing things like crafting our estate plans.

Unfortunately, however, only about one third of Americans have any estate planning documents at all.  In a survey conducted by care.com, 23.9% of respondents had wills, and only 6.2% had advanced health care directives.

So, although most people recognize that there are lots of good reasons to have a will and a health care directive, they put off the task of creating those documents.

If you are one of those people who has been delaying the task of creating your estate plan, let us help eliminate some roadblocks for you:

  • COVID-19 Safety. COVID-19 may have you feeling the urgent need to get your estate plan put together, but you’re likely also nervous to venture out in public.  Fortunately, our attorneys can safely discuss your estate plan with you via telephone and videoconference.  Alabama is also currently allowing remote witnessing and notarization of documents, so right now it is possible to complete your estate plan without even leaving your house.
  • Expense. At Lewis, Lewis & Falkner we pride ourselves on making our rates affordable so that estate planning can be accessible to anyone.  We believe that every family deserves the peace of mind that comes from having a complete estate plan, so we keep our fees as low as possible.
  • Time. While some people have found themselves with lots of extra free time during the pandemic, many others have struggled with a lack of childcare and feel like there simply aren’t enough hours in the day.  Because we can arrange virtual meetings, we eliminate our clients’ drive time to our office. Technology also allows us to be flexible and adjust meeting times as our clients’ schedules change throughout the day, even conducting “meetings” outside of usual office hours. Draft documents can be emailed securely to clients for review. In other words, we work on our clients’ schedules to make the estate planning process as hassle-free as possible.

If you would like to give yourself some peace of mind by creating your estate plan – or by adding to or updating your current plan – please call our office today at 205-553-5353 to see how we can safely and conveniently help.  Basic estate planning documents are more affordable than you might think, and in some cases can be ready for your signature within hours.

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Using Your Last Will and Testament to Nominate a Guardian for Your Minor Child

Young parents often mistakenly believe that they do not need wills if they don’t own assets of significant value.  However, parents shouldn’t overlook the importance of protecting what’s most valuable to them – their children.

There are several ways that a valid last will and testament can provide protection for a minor child, one important example being that Alabama law allows parents to appoint a guardian for their minor child.

What is a Guardian?

A guardian is a person who has legal responsibility for a minor child in lieu of the child’s parents.  A guardian is appointed when a child’s parents are deceased or otherwise unable to care for the child.

When would an appointment of a guardian by will be helpful?

  1. First, if both parents die or become incapacitated;
  2. Or, if one parent dies and the surviving parent has no parental rights.

What Happens if I Don’t Name a Guardian in My Will?

If either of those situations arise and you have not nominated a guardian for your children in your will, then it will be up to the court system to select a guardian without your prior input.  In other words, you will be leaving the decision of who takes care of your children up to strangers.  Without your nomination to go on, there is a greater chance that the court will choose someone other than the person(s) you would have preferred.  While the court will do its best to select a guardian that is best for the child, you can help avoid the possibility that they get it wrong by simply memorializing your preference in your last will and testament.

Generally, the court will try to appoint a close relative of the child if the child’s parents have not nominated a guardian. But what if the person you prefer is not a blood relative of your child?  In that case it’s particularly important to record your wishes in a legal document because otherwise your top choice is unlikely to be chosen by the court.

Additionally, having the parents’ nomination of a guardian for their children recorded in their wills can help avoid conflict among the surviving family members.  Without your nomination to guide them, your child’s relatives will be free to speculate to the court about what you might have wanted.  This can lead to disagreements, hurt feelings, and even lengthy, expensive court battles over who should be appointed. Many parents try to avoid these kinds of conflicts by not only designating a guardian in their wills, but by also including in their wills their wishes concerning grandparent or other relative visitation. Another strategy that some parents use to prevent discord is to have open and honest conversations with their relatives about the nominations they have made in their wills soon after they sign them, or to leave with their wills a letter explaining their decisions.

What if My Child’s Other Parent and I Disagree About Who Should Be Appointed?

Parents often try to reach an agreement about who should take care of their minor children in the event they both die, but that’s not always the case.  What if each parent nominates a different guardian in his or her will?  In that case the will of the second parent to die has priority.

What if My Nominee Doesn’t Want to Be A Guardian?

There is a chance that despite your best efforts to carefully select a guardian, that person won’t be available or willing to serve when the time comes.  Your nominee could become mentally incompetent or too physically disabled to care for another person, could move out of the country, or could even predecease you.  Also, while many people are flattered and honored to be nominated as a child’s guardian, other people may not want that responsibility.  For these reasons it’s a good idea to name an alternate guardian (or several) as backup in case your first choice is unavailable.

What if I Change my Mind?

Circumstances change, families blend and separate, and so your perspective on who should be your children’s guardian may adjust over time. Just like any other aspect of your estate plan, you should review your guardianship nomination at least annually. A good estate planning attorney can help you efficiently revise your will to update your nomination if your preference ever changes.

Am I Guaranteed that the Person I Appoint Will be My Child’s Guardian?

Your nomination is given strong consideration, but the court will have final say. For example, if you nominate your mother as your child’s guardian, but she later develops dementia and is incapable of caring for herself, let alone a child, then a court will find another appropriate guardian for your child despite your nomination.  Or, if you appoint Bill Gates and Melinda Gates as your child’s guardians even though they are complete strangers to you and your child, the odds are that the appointment will not be accepted and a substitute will have to be found. So, it’s important to carefully consider who will be a good guardian for your child, who is likely to accept the appointment, and who your alternate nominees should be.

Why Else Do I Need a Will?

In addition to allowing you to nominate a guardian, your will can also protect your children by planning for their future financial needs.  Your will can be used to nominate a second person (other than his or her guardian) to be in charge of your child’s finances.  While it is common for one person to serve both of those roles, in some cases it makes sense to split the duties and have one person care for the child’s physical care while another one manages the child’s financial needs. Read more about why you need a will by clicking here.

Are You Ready to Work on Your Estate Plan?

The attorneys at Lewis, Lewis & Falkner are ready to help you plan for your future.  Call us at 205-553-5353 or stop by our downtown Tuscaloosa office to get started on your estate plan.

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Where Is My Alabama Advance Dirctive Recognized?

If you’ve signed an Alabama Advance Directive for Health Care you may be wondering where it will be recognized.

Some states have laws that may honor your Alabama advance directive, but your safest bet is to have an advance directive for each state in which you spend a considerable amount of time.

Similarly, if you have an advance directive that was created in another state it may or may not be effective in Alabama. An Alabama attorney can help you review your out-of-state directive to determine whether it will be honored in Alabama, or help you create an Alabama advance directive to supplement it.

Need advice about your advance directive? Call us today at 205-553-5353 or stop by our Tuscaloosa, Alabama office to speak with one of our estate planning attorneys. An advance directive is an easy and affordable way to give yourself peace of mind by making a record of your wishes for your end of life care.

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Are Wills Just for People with a Lot of Money?

Do you think  you aren’t “rich” enough for a will?  Think again!

Many people have the misconception that wills are only for the wealthy.  However, just about anyone can benefit from having an estate plan, including a last will and testament.

Here are some important reasons to have a will, even if you don’t have a lot of assets:

Less Stress For Your Heirs.

Even if your estate is very small your heirs usually will be better served if you leave a will.   If you don’t leave a will and your estate has a value above the minimal limits qualifying it for the special procedures of a “small estate,” then your estate will need to be probated.  This means that your heirs will have to prove your death and their relationship to you in order to take possession of your assets.  In most situations someone will have to file a petition with the probate court to administer your estate, which can cost a fair amount of time, money, and trouble.  Whoever petitions to be appointed as administrator of your estate will most likely have to post a probate bond to protect your heirs in case of the administrator’s fraud or misconduct.  This is an expense that can be waived by a valid Last Will and Testament.

Ability to Nominate Guardians For Your Children.

If you have minor children a will allows you to name your top choice for their guardian after you die.  While a court will have final say as to who gets appointed, your nomination will receive strong consideration.

Control Over Who Inherits From You.

When you die without a will you leave it up to Alabama’s “intestacy statute” to determine how your property is divided.  While the intestacy laws do a pretty good job of following what the average person wants to do with his property upon his death, they may not align with your wishes.  What if you have a committed partner whom you are not married to?  Under Alabama law if you die without a will your partner will not receive any part of your estate.  What if you are a blended family and die leaving a spouse and children from a previous relationship? Absent a will, your spouse and children will share equally in your estate, and that may not be what you want or what’s best for your children.  What if your only living relative is a brother whom  you haven’t spoken to in thirty years?  Alabama’s intestacy statute says that he gets your entire estate even though you are estranged. The only way you can have a say in how  your property is divided by using a Will to state your wishes.

Control Over Your Property.

While you may feel like you don’t have enough cash to care what happens to your estate you shouldn’t forget about your non-cash assets, like your personal possessions with sentimental value.  If you want your family heirlooms to go to specific people then you should record those wishes in a Last Will and Testament.

Your Financial Situation May Change.

Your estate may become more valuable overnight if, for example, you win the lottery, receive a large inheritance, or get a large raise or  bonus at work.   You may not care who inherits your property when it’s worth $5,000, but you probably would care if it suddenly ballooned in value to $500,000.00!  A will can help you plan for these possibilities, however remote they may seem.

An Estate Planning Attorney Can Help

The best way to know whether you need a will is to discuss your situation with a lawyer.   Get peace of mind by talking to our experienced estate planning attorneys today.  Call us at 205-553-5353 or come by our Tuscaloosa office to find out what we can do to protect your property and your family.

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How Often Should I Review My Estate Plan?

When Should I Review My Estate Plan?

If you have a will, chances are you haven’t read it or thought about it much since the day you signed it.

But what if it’s outdated and no longer fits your needs?

The best way to make sure that your estate plan still works for you is to review it regularly.

Most financial planning experts recommend reviewing your will at least annually, and definitely after you have any major life change, such as:

  • marriage or divorce (yours or a loved one/heir);
  • death, illness, or incapacity of a spouse, child, other relative, or close friend (someone you may have given property to in your will or named as a trustee, executor, or guardian);
  • if you become seriously ill and/or need long-term care;
  •  a change in your financial situation or investments;
  • if you acquire new property or assets or sell property or assets;
  • if you start a new business or close a business;
  •  if you move to a different state;
  •  the birth or adoption of a child;
  •  when your child reaches the age of majority;
  •  if there is a change in tax laws.

When you review your will you should also review your other estate planning documents, such as powers of attorney and advance directives for health care.

After you review your will you can speak with an estate planning attorney about how to make any changes that may be necessary.

What if you read through your will and aren’t sure whether it needs to be changed? An attorney can review it and help you figure out whether it still works for you.

If you’re ready to update your estate plan call our Tuscaloosa estate planning attorneys today at 205-553-5353 or visit our office.

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Who Gets Custody of Children If Both Parents Die?

What happens to a minor child when both of his parents die?

As with most estate planning issues, this is something that is unpleasant to think about but very important.

If one parent dies then generally the surviving parent will have custody of the child.

But what if both parents die while the child is still a minor?

In that case the court will need to determine who should become the child’s guardian. Any of your friends or family members can nominate themselves to be appointed as guardian, and then it is up to the court to decide what is best for your child.

But, of course, you and the court may have different ideas about what’s best for your child.

That’s why it’s a good idea to have a will.

In a will you can nominate someone to be your child’s guardian after your death.  The court will still have final say, but in general a lot of weight is given to the parents’ wishes.

You can even nominate an alternate or successor guardian in case your first choice is unwilling or unable to serve.

You should discuss your wishes with your child’s other parent and if possible reach an agreement as to whom you will both nominate as your child’s guardian.  If you and your child’s other parent each nominate different people in your wills and then you both die the court will ultimately determine which of your nominees should be appointed.

An experienced estate planning attorney can help you protect your family by drafting a will that nominates a guardian for your children.  Call us today at 205-553-5353 or come by our Tuscaloosa office to see how we can assist you.

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Lewis, Lewis & Falkner, LLC. | Attorneys at Law | 2224 15th Street Tuscaloosa, AL  35401
Phone: +205 553 5353 | Fax: +205 553 5593

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