Articles Posted in Power of Attorney

Most estate planning clients are either retired, elderly folks who are thinking about how to best leave their assets to their adult children and grandchildren, or are middle aged married couples making sure they have the right plan in place in case they pass away unexpectedly and leave minor children behind. Naming a guardian for the children and a trustee to administer a trust allows them to make those decisions, instead of a judge.

The age group least likely to have a will or estate plan in place? Millennials. And that makes sense. After all, young people have on average longer to live, may not yet have children, and fewer assets to worry about distributing. In fact, though, millennials need a regularly reviewed estate plan just as much if not more than those in other age groups. That’s because millennials are more likely than older generations to have unconventional family situations. They are more likely, for example, to be in committed relationships, including parenting relationships, without the legal protections afforded to married couples.

Under Tennessee law, if you pass away without a will, your individually held assets do not pass to your significant other unless you are married.

The family of former U.S. Senator and film/television star Fred Thompson, who passed away in November, 2015, are embroiled in a very public dispute over his estate plan.

His two adult sons from a previous marriage have filed a lawsuit claiming his widow, Jeri Thompson, improperly made changes to the plan during the last weeks of his life (you can read the complaint here). She has asked the court to dismiss the suit, countering that the only changes made were slight and did not impact the sons’ inheritance.

This case highlights a pair of estate planning trouble spots that can easily lead to family conflict, regardless of how well you plan or how good and thorough your attorney is: first, the challenge of blended families; and second, the difficulties surrounding when a loved one begins to lose the ability to care for him or herself.

June 15 was World Elder Abuse and Awareness Day, a yearly recognition begun in 2006 to call attention to the growing problem of fraud, abuse, neglect, and exploitation directed at elders. An estimated 5 million older Americans every year are victims, according to the Department of Health and Human Service’s National Center on Elder Abuse.

Seniors are especially susceptible to scam artists. But sometimes unscrupulous family members or associates can also be guilty of exploitation, fraud, or abuse.

There are several steps you can take now to protect your loved ones and yourself from falling prey to scams and other exploitation in senior years. A Tennessee estate planning attorney can help you with many of these defensive steps.

Consider this Estate Planning 101, an introduction to some of the most important steps to take in planning for the future. Most people are aware that they need a Last Will and Testament. But that is not the only essential document in an estate plan.

Below is a list of the 4 essential documents every estate plan needs. As you will see, estate planning is concerned with more than just what happens after you pass away. In fact, the first three documents are designed to assist you and your loved ones during your lifetime:

  • General Durable Power of Attorney – Who should handle your affairs if you are unable to do so? A General Durable Power of Attorney authorizes a person of your choosing to act on your behalf (as “attorney-in-fact”) in matters other than health care decisions while you are still living. This includes everything from paying your bills to filing your tax return. Because it offers a broad authorization to handle financial matters on your behalf, a Power of Attorney should name someone that is responsible, and that you trust completely.

Do you store pictures online? Have a Facebook account? Keep documents in the Cloud? Or use online accounts to maintain certain aspects of your life? If so, you should be aware that earlier this month Tennessee Governor Bill Haslam signed into law a bill that could impact what happens to those digital assets after your death.

The Uniform Fiduciary Access to Digital Assets Act (UFADAA) is designed to make sure you control what happens to your digital property after you pass away. The law addresses concerns that online accounts containing assets of personal significance or even monetary value may be simply deleted upon a person’s death, or that loved ones will be refused access to digital property.

Oregon’s Karen Williams faced this dilemma while grieving the loss of her 22-year-old son, Loren in 2007. She revisted memories of his life by accessing his Facebook account, where he kept pictures and stories. When Facebook learned of his death, however, the company changed the password, denying her access, and sparking a lawsuit over control of his property. Ultimately, she won a court order, but as Associated Press reported, “she never received the full access she sought.” The account was subsequently deleted.

Country music legend Glen Campbell is engaged in a very public struggle with Alzheimer’s disease, a common form of dementia. Campbell announced his diagnosis in 2011 before embarking on a farewell tour with his family, which was documented in the feature film, “Glen Campbell: I’ll Be Me.” The film depicts in sometimes painful detail the impact of Alzheimer’s, not only on the person afflicted with the disease, but also on the loved ones faced with finding the right care and making decisions for someone no longer able to make decisions for himself.

The “Rhinestone Cowboy” is now in a long-term care facility with round-the-clock care.  After facing numerous health care issues and a legal challenge from two of his children from a previous marriage, his wife Kim is speaking out to help families dealing with the cruel disease, which affects about 6% of the over-65 population. “Estate planning is very important,” she said, according to a Lexington Herald-Leader report. “Advance health care directives are also very important.”

Kim Campbell is right. Planning ahead for health care crises can alleviate much of the anxiety for both the patient and his or her loved ones, and should be a standard step in every person’s estate planning process.

Having entered the New Year you may have created a list of resolutions that you hope to accomplish sometime during 2015. Some may be looking to exercise more, eat healthier, or even save some more money. Although it may not be one of the first things that you think of in setting your resolutions, estate planning is a goal that can be easily accomplished without spending too much money or time. If you have questions about your estate plan, contact the Nashville estate planning attorneys at The Higgins Firm.

So you may be wondering what exactly an estate plan is. In its most basic form, an estate plan is a set of legal documents that explicitly set forth your decision on a number of issues. One of the fundamental estate planning documents is a last will and testament. Most people think of a last will and testament, more commonly known as a will, as designating where you want your assets to go upon your death. However, a will can also do so much more. A will can also nominate someone to handle the administrative affairs of an individual after he or she has died. This individual is known as the executor of the estate. A will can similarly nominate someone to serve as the guardian of any minor children in the event of a death. Courts often look to a will to determine if the deceased parent had a preference for choosing a guardian.

Another important estate planning document is a power of attorney. This document allocates authority to another individual to act on your behalf. You as the grantor of the power are able to specify in what circumstances the agent is able to act on your behalf. Some may choose to grant a wide range of powers to the agent while others may choose to grant only very specific powers to their agent. Similarly, some may choose to have the document only become effective upon the incapacity of the grantor while other choose to have the document and its powers become effective upon the signing of the document. There are two different types of power of attorney documents. One is a power of attorney for finances which can include the ability to conduct business, write checks, contract, etc. The other is a power of attorney for health care which enables the agent to make health care decisions for a person who may not be able to make decisions regarding his or her own health. A power of attorney can be a useful tool in the event that you are no longer able to make decisions for yourself.

The landscape of the American population is ever changing. In 1970, approximately one-third of Americans age 15 and older were single. In 2013, that number had risen to nearly one-half. With a growing population of single individuals, it is important to recognize the implications on estate planning. While much of the attention on estate planning may focus on those who are married and have families of their own, the reality is that estate planning can be even more important for those who are single. Those included within the singles population may include divorced individuals, those who have never married, and widowed individuals. If you have questions about how estate planning may affect you, contact the Nashville estate planning lawyers at The Higgins Firm.

Each state has enacted laws that determine where a person’s assets should pass without a will or trust in place. These laws, known as the laws of intestacy, are the default rules for asset transfer following a death. Under the laws of intestacy, assets end up passing to the closest relatives in equal shares without exception. Depending on your particular situation, this transfer may not be what you would desire. For example the laws of intestacy in Tennessee do not provide for the transfer of assets to close friends, more distant relatives, domestic partners, or charitable organization no matter how close you may have actually been to the person or organization. For this very reason, it is important to set forth your specific wishes in an estate planning document like a will.

In addition, it is equally as important for single people to explicitly appoint someone to handle financial and medical affairs in the event that he or she was unable to make decisions for him or herself. Often a power of attorney for finances or health care can be utilized to allocate decision making authority to another individual. With married people, that responsibility will naturally lie with the spouse. However, with a single person, that decision may lie potentially with a relative who may not know your desires or even a stranger appointed by the state. Without having a spouse or child to rely upon, choosing the right person to serve in that role can be crucial to ensuring that your needs are met for your finances and health care.

Life is full of change. Many of those life changes can reach much farther than people realize. While a large portion of the population has been affected by a divorce, often those individuals do not understand the impact that it may have on their estate planning documents. Exactly what happens to a last will and testament or power of attorney after there has been a divorce? It is important to understand what can happen if your documents are not updated. If you have questions how a major life change may affect your estate plan, contact the Nashville estate planning lawyers at The Higgins Firm.

One of the most basic estate planning documents is the last will and testament. What impact does a divorce have on a will in Tennessee? If a will is executed by an individual who later becomes divorced, Tennessee law eliminates the ability of the former spouse to recover under the will. Similarly, the divorce also revokes any power of appointment or nomination of the former spouse as executor, conservator, or guardian within the will. Should the individual desire to keep the former spouse as a beneficiary of the will or have the former spouse appointed, the will would expressly need to provide that the specific Tennessee statute does not apply. Only a divorce or annulment will result in the automatic revocation. A divorce will have the same effect preventing a former spouse from recovering from an individual who died intestate, or without a will. A formal separation of the spouses will not revoke the ability to recover under the will or under the laws of intestacy. If you have gone through a divorce or separation, it is important to update your will shortly thereafter to ensure that your assets pass to the individuals that you so desire.

However, a divorce will not automatically revoke a former spouse from recovering as a designated beneficiary. A beneficiary designation on any life insurance policy or other death benefits is considered to be a contract between the participant and the company or organization issuing the policy. Because these beneficiary designations are considered to be contractual, the designation can only be changed by complying with the terms of the contract, generally a written beneficiary designation form. In other words, a divorce or drafting a new will cannot automatically revoke a former spouse’s beneficiary designation. It is very important to change these designations shortly following a divorce.

This time of year brings families together to enjoy food, fellowship, and maybe even a little football. Whether your Thanksgiving involves a small gathering of close friends or a large get-together with distant relatives, this is a time to be thankful for all of those loved ones in our lives. As you meet with your loved ones, it is a great opportunity to think about your estate plan. Being around your family may help you evaluate who would best serve in certain roles or who may need some extra protection in the future.

While your estate plan may not be your first concern, having an estate plan in place should be a priority. After all, having an estate plan in place can provide you with the peace of mind that your loved ones are cared for. You may be wondering what exactly makes up an estate plan? In its most basic form an estate plan is comprised of legal documents that explain where you want your assets to go or who you want to make decisions on your behalf if you are unable to do so.

A last will and testament is one of the most important parts of an estate plan. In its most basic form, a will documents where a person’s assets should pass upon death. However, a will does much more including the ability to set up a trust, nominate a trustee to manage the trust, nominate a guardian for any minor children, and nominate a potential executor of the estate.  Communicating these decisions to any family members can allow for a helpful discussion and can eliminate any surprises down the road.