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Estate Planning

ESTATE PLANNING & TAX ISSUES

LIVING WILLS

 

What is a living will?

A living will is a written document signed by a competent adult stating what their wishes or instructions are concerning medical treatment that they would wish to accept or refuse.

What are the limitations of a living will?

There is no law authorizing competent adults to execute living wills in michigan. This does not mean that living wills are invalid.

Note: If you wish to rely upon a living will, the language within the living will must contain "clear and convincing evidence" of your wishes under the circumstances which you could be in before life sustaining medical treatment may be withheld or withdrawn.

If a living will speaks only in general terms such as a person does not want heroic measures taken, then it is doubtful that the person would have life sustaining medical treatment withheld or withdrawn from them.

It is better to have a medical durable power of attorney than a living will.

It is better still to have your wishes concerning your care expressed in your medical durable power of attorney such as what treatments you would want or not want if you were in a situation where you were unable to make medical decisions.

Another limitation on a stand alone living will is that it does not appoint an agent to make medical decisions for you if you are unable to do so.

What Is Wrong With A Joint Bank Account With Your Child?

 

Many seniors set up a joint bank account with a child for the sake of convenience. "So someone can pay bills if something happens to me." This is a reasonable and practical goal but it can be accomplished in a much better way and avoid the harmful potential consequences.

With a joint bank account when someone dies (typically the parent) the other joint owner (typically the child) becomes the sole owner of the account. That is the deceased owner's Will or Trust does not control ownership of a joint bank account. This means that if there is a dollar in the account or one million dollars in the account the other joint owner becomes the sole owner and has no legal obligation to share the account with anyone else. This can cause unintended problems when a parent has more than one child and the child who becomes the account owner decides not to share the account assets with their siblings.

With a joint bank account if your child has credit problems, judgments, or is going through a divorce then the funds in the joint account may be in jeopardy. Another problem with a joint bank account is that the other joint owner can remove all the funds and there is nothing you can do about it.
 

FINANCIAL DURABLE POWERS OF ATTORNEY

 

What types of financial durable powers of attorney are there?

 There are two kinds of durable financial powers of attorney. One is effective immediately. The other is effective only upon the occurrence of an event named within the durable power of attorney such as someone’s disability. The financial durable power of attorney that is effective at a future time, such as disability, is also called a “springing” power of attorney.

What happens if someone does not have a financial durable power of attorney and they become unable to manage their affairs?

 A conservatorship proceeding is needed in probate court which is a fairly costly process. There is no guarantee a court will select someone to manage your affairs that you would have selected. A court also may not allow your conservator to do something you would have wanted, such as asset protection, or may permit your conservator to do something you would not want.

What other advantages does a durable power of attorney provide?

Asset protection if someone needs to pay for long term care at home or in a nursing home.

What does “durable” mean?

Durable means that if you become disabled then the power of attorney remains in full force and effect.

What are the requirements for creating a durable power of attorney?

Please see the faq about Michigan’s new durable power of attorney law.

What powers should a financial durable power of attorney contain?

This depends upon the wishes and particular situation and circumstances that the person making the power of attorney faces.

How specific should the durable financial power of attorney be?

As specific as possible. Your agent may not do something unless the durable power of attorney specifically states that the agent may do the act in question.

How is disability defined in a durable power of attorney effective at a future time?

The definition of disability is set forth in the power of attorney and is determined by the person making the power of attorney after consulting with their attorney.

WHAT IS A DO NOT RESUSCITATE ORDER (DNR)?

 

What is a do not resuscitate order (DNR)?

In 1996 michigan created the do not resuscitate procedure act. The act permits a competent adult or their patient advocate to sign a dnr and wear a DNR id bracelet. If you have a DNR and it is made known to emergency personnel, then CPR will not be performed on you in an emergency. A DNR is useful if you have reached a point in life where you desire not to be revived if your heart or breathing stops.

What does a DNR say?

A DNR states that "if my heart and breathing stop, no person shall attempt to resuscitate me."

What happens when you have a DNR?

If you have a dnr, then a health care professional shall not attempt to resuscitate you (CPR) if they discover that you have no vital signs.

What are the signing and witnessing requirements of a DNR?

A DNR allows a competent adult or their patient advocate to sign a DNR on their behalf. The DNR must be signed by at least two witnesses at least one of whom is not the person's spouse, parent, child, grandchild, sibling or presumptive heir. Unless someone is refusing resuscitation for religious reasons, that person's attending physician is also required to sign the dnr and include a copy of a dnr order in the person's permanent medical record.

What is the purpose of a DNR?

The purpose of a DNR is that it can control emergency situations and solves the limitations that a medical durable power of attorney has.

Can a DNR be revoked?

Yes if the person is competent.