Paul O. Dillon, Attorney at Law

Estate Planning Documents Every Family Needs

Estate planning is not something only very old or very wealthy people need to do. Anyone who doesn’t want to leave a mess for their loved ones after they’ve died or if they are too sick to be able to make decisions, needs an estate plan. A recent article from Military.com, “Wills and More: These Are the Legal Documents Every Military Household Needs,” isn’t just for military families. Estate planning is for everyone, and one last important point: estate planning documents require upkeep to be effective.

The foundations of an estate plan include a will, beneficiary designation, and powers of attorney.

A will details who you want to receive your property when you’ve died and names an executor in charge of your estate. If there is no will, the laws of your state come into play. You may not like who is chosen to manage and distribute your estate, but it will be too late for you or your family.

Beneficiary designations apply to bank, investment, and retirement accounts, life insurance policies, and any asset permitting a beneficiary to be named. If your will has one instruction but the beneficiary designation says another, the beneficiary designation wins. This is just one example of why updating your estate planning documents is important. You may have opened an account decades ago and named a person who is no longer in your life or living.

Power of Attorney (POA) is a legal document that gives you the authority to make legal and financial decisions if you are incapacitated. A related document, Power of Healthcare Attorney, permits someone else to make healthcare decisions. Think of the two POAs as a mini-succession plan, giving authority over essential parts of your life to someone else if you become incapacitated.

If these documents aren’t in place, family members will need to go to court to obtain guardianship or conservatorship to take over routine matters like paying bills and being able to talk with doctors and make medical decisions. This is an expensive, time-consuming, and stressful process, easily avoided by having these documents prepared by an estate planning attorney.

Here’s an example of why updating documents is so important. Let’s say your mother receives a diagnosis of Alzheimer’s Disease. She’s still functioning, but the disease is progressing. Once someone is incapacitated, they are not allowed to sign legal documents. If you fail to update her POAs and other estate planning documents on a timely basis, the documents can be challenged and may be deemed invalid.

Events requiring estate planning document updates include happy things like marriage, welcoming a child or grandchild into the family, or coming into a large inheritance. Unpleasant events require updates as well: divorce, death, a serious disease, or financial losses.

Remember, estate planning is about protecting your family and your property. You've protected yourself and your loved ones by making a will, keeping beneficiary designations updated, and having POAs and related documents for incapacity. Your family will be spared the stress and cost of cleaning up a mess, which is probably not the legacy you want to leave. Meet with an experienced estate planning attorney and get started on this most critical task.

Reference: Military.com (April 21, 2025) “Wills and More: These Are the Legal Documents Every Military Household Needs”

Is Power of Attorney for Health Care Needed If You’re Healthy?

Like most people, a 61-year-old man never thought he would have a health crisis. Neither did his family. However, he was struck with a sudden heart attack, followed by complications leading to a brain injury and he became incapacitated. The family was faced with a terrible situation in addition to their father’s health crisis.

The couple had never done any estate planning, nor did they have a Power of Attorney for Health Care. The spouse assumed she would have the legal right to make medical choices for her husband.   However, without a POAHC, she had no standing. A recent article from the Wisconsin Newspaper Association, “Wisconsin Spouses can’t make medical decisions without this document,” should serve as a wake-up call for families across the country, since this is not a one-state issue.

There is no automatic right to make healthcare decisions for an incapacitated partner. Unless both spouses are joint owners, one can’t access bank accounts. Without having the right estate planning documents in place, a spouse won’t be able to make decisions, pay bills, or transfer money between accounts to ensure the household runs smoothly.

Medical decisions for the man fell into legal limbo and got tangled up in red tape. Instead of focusing on his recovery, they embarked on a legal process that could have easily been avoided with one document.

First, the family had to petition the court for legal authority over his medical care, known as guardianship. This was an expensive, time-consuming and emotionally exhausting process, all going on while they were adjusting to this dramatic change in his health.

Making matters worse, he was not a compliant patient in his altered state. He wandered frequently, and one night, he got out of the hospital on a bitterly cold night. To make matters worse, the hospital couldn’t discharge him to a rehabilitation facility until the court awarded the family guardianship. The family was bombarded with questions about the status of his case, which was scheduled weeks away.

At the same time, there were further problems with the hospital without a designated health care agent. First, the hospital administrators insisted that the patient be discharged to a long-term care facility. They then said the insurance company had stopped paying, so he had to go home. When the family sought help from the county, the hospital threatened to tell the courthouse that the family was neglecting him and threatened the guardianship process.

The hospital reneged on its promise to help provide at-home nursing care when the guardianship process was finally completed. The family was left on their own to find appropriate care.

This nightmare could have been avoided if the couple had an estate plan, including naming a healthcare agent with a Power of Attorney for Healthcare. When he became incapacitated, his wife or adult child could have had the legal authority to make health care decisions on his behalf without the delays, added expense and frustration of court proceedings.

Everyone should have a Power of Attorney for Healthcare, sometimes known as a Healthcare Proxy, to name another person to step in and make decisions for them in case of incapacity. We never know what will happen, even to our healthiest family members. Anyone over age 18 needs to have a POAHC. Talk with your estate planning attorney and take care of this before it’s needed.

Reference: Wisconsin Newspaper Association (April 7, 2025) “Wisconsin Spouses can’t make medical decisions without this document”

Three Top Excuses Heard by Estate Planning Attorneys

Recognition of your mortality and taking the time to plan for tying up the business of your life are two very different things. Estate planning attorneys hear reasons for delay all the time. However, the explanations aren’t going to help your family when they have to administer an unprepared estate while grieving. A recent article from MarketWatch, “The top 3 excuses people make to put off estate planning--and why they’re all wrong,” offers food for thought.

I don’t own enough to need an estate plan. Even if you die in debt, you need an estate plan to prevent loved ones from having costly problems like probate, taxes and other issues. If you’re in a nursing home and all you own is a bank account with a named beneficiary, you may not need a will. However, you definitely need medical directives, including:

• Healthcare Power of Attorney (or Healthcare Proxy), someone you name who can make medical decisions.
• HIPAA Release so a person of your choosing can access health insurance information and medical records.
• Designated representative for Medicare, Medicaid and Social Security
• Living Will to express wishes for end-of-life care. Do you want to be kept on life support if you aren’t expected to regain consciousness? What about artificial feeding? These are tough issues to address. However, without expressing your wishes, your family won’t know what you want.

Procrastination has worked before, so why change now? Many people are waiting to see if changes will come to federal estate tax exemptions, which are set to happen at the end of 2025 unless Congress acts. No one knows what will happen. However, if your estate is hovering near the $7 million mark and you wait until the last minute to make changes, your estate could become taxable. Creating and executing an estate plan takes time, so that procrastinating could cost your heirs 40% of your estate.

I don’t know where to start. This is what experienced estate planning attorneys are for. Just as you wouldn’t be advised to perform surgery on yourself, you need the services of a skilled and trained estate planning attorney to create an estate plan to achieve your goals.

Start by gathering any documents you might already have, including investment and pension accounts, life insurance policies, titles and deeds and anything you think might be relevant. Next, make an appointment with an estate planning attorney who can explain the process, offer strategic tools to minimize taxes, transfer wealth and prepare an estate plan to protect you and those you love.

If you need more of an incentive consider this: putting a loved one through the process of a scavenger hunt to identify documents, spend their own money to retain counsel to go to court to obtain a guardianship if you are incapacitated and need their help, or be powerless as a lifetime of work evaporates in estate taxes, will teach a valuable lesson of what not to do. If you’d prefer to be remembered with love and affection and not resentment, it’s time to stop procrastinating.

Reference: MarketWatch (April 17, 2025) “The top 3 excuses people make to put off estate planning--and why they’re all wrong”

Should You Have a Revocable Trust?

There are many good reasons to include a revocable trust as part of your estate plan, according to a recent article from Columbus Monthly, “Planning Ahead: When to Consider a Revocable Trust.” You might think trusts are only for the wealthy. However, that’s not true. An experienced estate planning attorney can easily establish a trust to protect assets and direct their distribution. Distribution can occur while you’re living or after you’ve passed away.

Trusts also distribute assets to beneficiaries outside of probate, which avoids the delays and costs associated with probate and, even better, keeps your private business confidential between you and your beneficiaries. When a will is probated, many courts require an inventory of assets. The will becomes part of the public record, and anyone—including ex-spouses, local realtors, thieves and angry relatives—can read your will and learn about your bequests.

A tip from the professionals: ensure an estate planning professional establishes your trust. Every state’s laws are different and what your brother-in-law in Idaho did might not work in Virginia.  You should also ensure that the trust is properly funded. If you don’t fund the trust, it won’t work as you intended.

Revocable trusts are used to pass assets after you’ve died. The language of the trust is tailored to your specific wishes. For instance, you may want your children to inherit a certain amount of money every year or only when they have reached goals, such as completing college.

Trusts can be created to fund education, serve as a deposit for a home, or initiate distributions upon reaching a specific age. This is especially beneficial for parents of young adults, who understand that giving a twenty-five-year-old their entire inheritance all at once may not be as beneficial as making partial distributions over a twenty-year period.

One example of a well-structured trust is a woman who owns land that has been in her family since 1947. There are two houses on the property. The land has been placed in a trust to manage the property, and the trust language stipulates that multiple generations can continue to reside there until there are no family members who wish to live on the property. At that point, the trust allows the trustee to sell the property and distribute the proceeds to the living beneficiaries.

Trusts are also useful when a person becomes incapacitated and needs someone else to access the assets owned by the trust to manage the person’s financial affairs. A home, bank account, or all a person’s assets can be placed in a trust, and then the trustee can manage the person's affairs without needing to go to court and file for guardianship.

Whether or not you need a trust should be discussed with an experienced estate planning attorney. It has applications for protecting heirs in the event of a second marriage, incapacity and controlling assets. Your attorney will determine the type of trust that best suits your unique situation.

Reference: Columbus Monthly (March 10, 2025) “Planning Ahead: When to Consider a Revocable Trust”

How Estate Planning Protect Assets

Elderly people are often targeted by scammers for two simple reasons: they have a lifetime of assets and are often isolated. When no protection is in place, convincing a lonely person to be generous is relatively easy. One family’s situation is described in a recent article from Market Watch: “’She’s still waiting by the phone’: My grandmother gave her life savings to a man she met online. What now?” It provides a cautionary tale for what can go wrong when no estate planning guardrails are in place.

Their elderly mother emptied her healthy bank and investment accounts and sent the money to someone from a foreign country. Despite the family’s efforts to help, she didn’t believe there was a problem. She told police and elder abuse officials to leave her alone, as she was getting married soon and didn’t need their help.

All she now has left is a pension from her late husband, which will cover the cost of the assisted living facility she’s moving to and $1,000 left over every month. Assets in her bank and investment accounts, which included proceeds from Coca-Cola stocks purchased decades ago, will never be recovered. The bank’s position in these situations is that the account owner authorized the transfers, and they have no responsibility whatsoever.

Having an estate plan in place could have prevented some of this. During the process of creating an estate plan, discussions about planning for the future take place to prepare for scenarios just like this one. Here’s how.

Estate plans often contain several documents in addition to a last will and testament used to distribute assets after death. A Durable Power of Attorney would have been created, naming another person, usually an adult child, to control the elderly person’s finances.

Changing some or all her accounts to joint ownership with an adult child might have added another set of eyes to monitor transactions. Alerting the financial institutions to the adult children being added to the accounts could have also been helpful.

If an elderly parent is unwilling to yield control, the family could go to court to obtain a conservatorship (or guardianship, depending upon the jurisdiction) to control the person’s finances.

A court investigator is appointed to interview the person to determine whether they are truly incapacitated and whether there needs to be a conservator appointed. The person has the right to attend the hearing, have their own attorney present and oppose the request for conservatorship. There is a court hearing where the person must appear, and the judge decides based on the investigator’s report and other evidence.

Having a Durable Power of Attorney is far simpler than going through conservatorship proceedings.

The family should also have her estate planning attorney create a Healthcare Proxy and HIPAA waiver, so they can contact her physician and make an appointment for a physical and mental assessment.

The steps taken in creating an estate plan with an experienced estate planning attorney anticipate the need to protect assets, especially for an elderly person. The estate planning attorney may also be able to refer the family to a social worker who can assist with their mother’s peace of mind. When she realizes she has been taken advantage of, she may experience an extreme emotional response, and the family should also prepare for this.

Reference: Market Watch (March 1, 2025) “’She’s still waiting by the phone’: My grandmother gave her life savings to a man she met online. What now?”

Seniors can Protect Health and Financial Security

Even though the calendar says March, winter hasn’t left yet. According to a recent article, “Winter safety for seniors: How to protect yourself from liability,” from News Tribune, an unfortunate event can occur at any time. What can you do to protect yourself?

Start by executing essential estate planning documents. People think “estate planning” is an elaborate way of saying “last will and testament.” However, this isn’t so. They also believe that if there is no will, their children or spouses will inherit everything. That’s not true either.

Accidents and illnesses can strike anytime, so everyone needs to have these estate planning documents in place. At the same time, they can address problems, like incapacity and disability.

Everyone should have a Power of Attorney for Healthcare, a Power of Attorney for Finances, a HIPAA authorization, a Last Will and Testament and a Living Will. Once your estate planning attorney creates Power of Attorney forms, an authorized agent can handle your financial and health matters.

When you grant someone the power to act on your behalf, you don’t lose the ability to act yourself. This differs from guardianship or conservatorship, where the court removes your authority and independence, giving another person power over your life and/or financial matters.

A HIPAA Authorization gives healthcare providers and insurance companies the legal authority to speak with another person about your care. Without this written authorization, properly executed by an estate planning attorney, your family may be shut out of critical decisions.

If you suffer from a terminal condition and cannot explain your preferences for medical treatment, your Living Will provides end-of-life instructions for your healthcare representative (granted through a Power of Attorney for Healthcare or Medical Proxy) and your medical providers.

If you have adult children, ensure that they also have these documents and an estate plan. Having a plan before you need it prevents you from adding further stress and costs to a personal crisis.

Protecting yourself from risk and the unexpected takes a little time and effort. However, when the need for these documents arises, you and your loved ones will be glad they are in place. Talk with an experienced estate planning attorney today to plan.

Reference: News Tribune (March 3, 2025) “Winter safety for seniors: How to protect yourself from liability”

Estate Planning Is More than a Last Will and Testament

Most retirees know they should have a last will and testament. However, surprisingly few have updated wills. A recent article from msn.com, “6 Legal Documents That Most Retirees Need—but Don’t Have,” says only about 52% of retirees have a last will, and most lack other crucial documents needed to protect themselves and spare their loved ones additional grief. The documents discussed below should be part of your estate plan. If you don’t have them, consult with an estate planning attorney in your community, as they are state-specific.

Medical power of attorney or healthcare proxy. This document lets a person of your choosing make medical decisions on your behalf if you cannot. When would you need a medical POA? If you are terminally ill, seriously injured, in a coma, receive a diagnosis of dementia, or at the end of life, you need a POA. Not only does this document let you decide who will make these decisions, but it also alleviates tremendous stress, including a lifetime of second-guessing, by your loved ones.

Advanced directive or living will. You will have the opportunity to express your preferences for end-of-life care if you can’t communicate because of an illness, accident, or another condition preventing you from responding. The advanced directive doesn’t go into effect until you are unable to communicate. Use this document to express what kind of care and treatment you want and don’t want during an emergency and the exact circumstances in which you want your choices to be honored.

Financial power of attorney. People with a financial POA have chosen the person they trust most to act on their behalf when it comes to paying bills, running a household, overseeing investments, or even selling a family home. Here’s what most people don’t know about a POA: you can, and should, make it as personal as possible. If you want your sister to pay your bills but cannot make charitable donations, your POA can include this. If you don’t have a financial POA, loved ones will need to go to court and petition for guardianship, which is costly and time-consuming.

Funeral and burial arrangements. No one likes to think or talk about dying, funerals, or memorial services. However, if you don’t tell your loved ones what you want or make arrangements for yourself, loved ones or funeral homes will make those decisions for you. Whether you care about what service you have or don’t want a service at all, creating a plan will be a kindness to your family.

HIPAA waiver. Few people seem to be aware of the importance of a HIPAA waiver, which creates a lot of headaches for loved ones. If you haven’t signed a HIPAA waiver, doctors and insurance companies cannot speak with your designated person about your healthcare and insurance coverage. If you become incapacitated without a HIPAA waiver, your family won’t be able to receive updates on your care. The laws enforcing HIPAA are extremely restrictive, so this is a good document to have in place long before it’s needed.

Trusts. When you create a trust, you create a legal entity to own property, taking it out of your taxable estate. Trusts allow assets to pass directly to beneficiaries, and depending upon the type of trust you use, there are many different types, and you may gain substantial tax advantages. Your estate planning attorney will know which type of trust is best for the circumstances.

Everyone should have a last will and the aforementioned documents to protect themselves and their loved ones. Life happens, and this kind of planning is invaluable. Make an appointment to meet with an estate planning attorney to create your own estate plan. If it’s been more than three to five years since you’ve had your estate plan reviewed, it’s time to take care of it.

Reference: msn.com (Jan. 13, 2025) “6 Legal Documents That Most Retirees Need—but Don’t Have”

How Does a Guardianship Work?

Planning for incapacity is part of an estate plan and like many things in life, planning in advance is better for both the individual and their family. A recent article, “Guardianship—What is sufficient incapacity?” from Pauls Valley Democrat, explains the basics concerning guardianship.

When an estate plan has been properly prepared, it includes a Power of Attorney created to give another person, known as the agent (representing the incapacitated person), the ability to make financial and legal decisions for an incapacitated person. A POA may be general, allowing for everything from managing investment accounts and paying bills to selling the incapacitated person’s home. However, an estate planning attorney can create a customized POA to give specific permissions for what the agent can and cannot do.

A guardianship requires going to court and having a formal proceeding to determine whether or not a person is incapacitated. While there are some minor differences from state to state, generally speaking, a person is deemed incapacitated if they are age 18 or older and impaired because of mental illness, physical illness, or disability, intellectual or developmental disability, or drug or alcohol dependency.

The court reviews the person’s ability to maintain their own health, safety and financial resources.

If a POA has been created and executed, another person will be able to manage the incapacitated person’s financial matters. However, a POA does not address health care and safety issues.

The interested party requesting to be appointed guardian does not have to be a spouse or blood relative. This is one of many reasons why an estate planning attorney should be consulted long before a guardianship becomes absolutely necessary. A family member is almost always preferable to being named a guardian.

Evidence for the court proceeding includes professional opinions of doctors, psychologists, or administrative bodies to demonstrate the person’s lack of capacity. In some instances, the court may conduct an investigation of its own, relying on medical experts.

The person selected to provide an expert opinion should be matched to the reasons for the person’s incapacity. A geriatric specialist should evaluate an elderly person; financial capability should be assessed by someone who focuses on financial cognition, etc. The court reviews evidence to make its determination. In some cases, the experts making the evaluations are also called upon to provide a plan for the person.

A guardianship is very restrictive. If estate planning is done in advance, the family will be in a better position to help their loved one, determine their needs and act in their best interest without court intervention. Speak with an experienced estate planning attorney to plan for the future when more options may be available.

Reference: Pauls Valley Democrat (Nov. 8, 2024) “Guardianship—What is sufficient incapacity?”

What are the Top Estate Planning Mistakes?

A cornerstone of creating family success is proactive planning for the future. This includes working with experienced advisors, including estate planning attorneys, who can guide the family to making informed decisions. A recent article, “Top Estate Planning Mistakes Families Make—And How To Avoid Them,” from Forbes, advises readers to include thoughtful planning, organized financial records and estate planning to create a legacy to span generations.

The biggest mistake families make is not having an estate plan. The second biggest mistake is trying to create an estate plan without the help of an experienced estate planning attorney. Families often turn to an attorney who has helped with transactions, like buying a house or settling a homeowner’s insurance claim. However, this is a costly mistake. It’s like asking a podiatrist to perform brain surgery—they may be well-meaning. However, they don’t have the necessary experience and knowledge.

Disorganized financial and legal record-keeping leads to unnecessary estate planning and administration complications. Good record-keeping helps families make good decisions regarding spending and saving and makes estate planning more effective. For example, creating a budget for retirement without accurate information could lead a couple to overspend and run out of money or live so frugally that they don’t enjoy their retirement.

Financial records must be organized, so real estate, investment accounts, savings accounts, pensions, credit card debt, mortgages and personal property can be accurately valued. Creating a successful estate plan needs to include information on cash flow and spending to guide decisions on how assets will be distributed and what liquidity is needed.

Family wealth is not created by passing large assets to the next generation without restrictions. Long-term estate planning is needed to retain wealth. When large inheritances are passed on without planning or education, most of the money disappears by the second generation, and whatever’s left is usually gone by the third generation. The family’s wealth shouldn’t be viewed as a bank account to be depleted.

Trusts are often used in estate planning. However, a common mistake is to create a trust and then neglect to fund it. Funding a trust involves moving assets into the trust’s ownership. Deeds, titles and financial accounts must be changed to identify the trust as the owner rather than the person who used to own the asset. Some estate planning attorneys will have their office manage this process, while others require clients to do this themselves. Either way, funding the trust must be completed to perform as desired.

Maintaining an estate plan is just as important as creating one. Financial records and documents in the estate plan need to be kept up to date. If the estate executor dies, the will needs to be updated. If a guardian is named to raise minor children, which is done through a will, and the person moves away, a new guardian needs to be named in a revised will.

Estate plans also involve documents to protect the living. A Power of Attorney assigns another person the ability to manage financial and legal matters if a person is incapacitated by injury or illness. A Healthcare Power of Attorney is needed to have another person manage medical decisions. The name of this document varies by jurisdiction. However, without it, a family will need to go to court to be involved with a loved one’s medical care.

Estate planning can be viewed as organizing one’s life and planning for the future. It is a gift to loved ones and establishes a legacy of caring.

Reference: Forbes (Nov. 7, 2024) “Top Estate Planning Mistakes Families Make—And How To Avoid Them”

Estate Planning and Protecting Your Privacy

It’s never too early to start considering your estate plan and preparing for what you want to leave behind. This includes some things, like personal journals, you might not want to leave behind. These are just a few good points made in a recent article from yahoo! finance, “Planning your estate? Decide who gets your passwords—and who will burn your journals.”

If your journals are online, you’ll want to leave the platform information, login name and password of whoever you’ve decided is going to manage the journals after you’ve passed. You might consider following the example of one person, who has a pact with her estate planning attorney and close friend: whoever dies first will burn and delete all of their journals. They don’t have deep, dark secrets; they don’t want hurt feelings or misunderstandings with their family members.

Most estate planning focuses on dividing financial assets and personal possessions and deciding who will be the executor, the person in charge of administering the estate. However, there’s more than real estate and investment accounts to consider. Digital assets need to be addressed, and because they exist online and with no paper trail, they can become problematic.

Estate planning attorneys advise everyone to have an estate plan. Don’t think you have all the time in the world to do it, since we never know when an accident or diagnosis may occur. Think through all of your belongings, digital and otherwise, and make a plan so your loved ones aren’t faced with secrets or surprises.

Think of your estate plan as a kindness to loved ones. They are overwhelmed by grief and not in the best state of mind to make hard decisions, like figuring out what kind of end-of-life care you want. By having estate planning documents with specific directions, you’ve helped them through a tough time.

Some people are really good with details. One woman with no living relatives created a notebook with all her accounts and passwords and specific directions for what she wanted to happen with everything she owned, from real estate to a favorite vase. She also planned her own funeral, knowing there wouldn’t be anyone to do it, and having specific thoughts about what she wanted to occur. She listed the guests to be invited and a menu for the funeral luncheon, including who was to cater it.

Most people don’t go to this level of detail. However, it would be helpful if they did.

Regardless of your age, you’ll need to do some estate planning. Start by taking a look at your accounts. If there’s an option to name a beneficiary to inherit the account upon your death, write in a name. If you’re young, it may be a parent or a sibling. If you’re older, it’s more likely to be a spouse or an adult child. Create a notebook of your own with a list of your accounts, including digital assets.

Consult an estate planning attorney to create a will, and don’t neglect a Power of Attorney and a Healthcare Power of Attorney. These last two documents will permit a person of your choosing to take over financial and legal matters in case of incapacity. A healthcare power of attorney, sometimes called a healthcare proxy, lets a person of your choice make decisions regarding healthcare on your behalf. If you don’t have these documents, your loved ones will need to go to court and obtain guardianship and/or conservatorship if you’re too sick or are injured and can’t communicate your wishes.

For some families, the arrival of the holiday season offers many opportunities to discuss their hopes and plans. Even if you only touch on a few points, it might be a good time to start the conversation, providing clarity and promoting the understanding that these topics must be discussed in advance.

Reference: yahoo! finance (Oct. 24, 2024) “Planning your estate? Decide who gets your passwords—and who will burn your journals”