Margaret A.M. Heine

is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.

Her practice includes estate planning, wills, trusts, and probate as well as business, real estate, and civil litigation. Email: nbylegas@gmail.com or visit company website www.margaretamheine.com.

5 RESOLUTIONS FOR 2024

Every New Year starts with fresh resolutions or a renewal of the things on our lists from prior years!  This year make five resolutions to get your legal affairs in order.

It is highly recommended that you have the following documents in your personal estate plan: a will, a power of attorney for financial matters, a power of attorney and/or health care directive, and a living trust.

Here is a quick update on each of these important legal documents:

1)  Create, Review, Update your Health Care Directive.  This is a must for everyone.  Who makes important health care decisions for you is critical.  Do they understand your wants and desires?  Are you in care facility or residential home that will not honor DNR’s (do not rescitate orders)?  What do they need to be able to implement your wants and desires if you become critically or terminally ill?  Is your health care agent really ready to carry out your wishes?

Doctor’s offices, hospitals, outpatient facilities will all ask if you have an advanced health care directive.  There are good reasons for this.  Who can they rely on to make critical decisions for you if you are unable to make them yourself?  It is not just illnesses, strokes, dementia or Alzheimer’s which create a need for these documents, but also accidents, ketosis, sepsis, COVID and many other illnesses.

Make sure you discuss what your wishes are with your health care agent.  Have a good reliable second for your health care as well.  Your first choice might be traveling, out of the country, or incapacitated themselves.  Make sure you have current contact information for them as well.  Give your agents a copy of this document, so, it will be handy if needed.  Keep the originally executed document with you.  You will bring it with you to outpatient centers, hospitals, care facilities.  They will scan it and give you back the orginal.

Health care directives should be notarized and signed.  This directive can also provide information to your agent which would otherwise be prohibited to them because of HIPAA regulations for health care privacy.  Make sure your diagnosis, treatment, and insurance may all be discussed with your agent.

Recently, a client was in a residential care home with a terminal illness.  They wished to die at a home and not in a facility, and did not wish to receive nutrition if they were at the end of their lives.  When the family discussed this wish with the caretaker, they were informed that the caretaker had a duty to call the ambulance and paramedics, and that they would not allow hospice at the residential home.  This was obviously the wrong residential home for this client.  Their family moved them to a facility that would honor their parent’s wishes.  The Health Care Directive assisted them in determining what was acceptable to the loved one, and proving that it was their wish and desire.

2)  Create, Review, Update your Financial Powers of Attorney.  Is there someone empowered to pay your bills, file your taxes, manage the sale of your home, sell stocks or bonds if needed?  Do you have someone listed as a second signatory on your checking account?  Savings account?  Are beneficiaries listed on your investment accounts, life insurance, bank accounts? Does your personal financial planner or stock broker know who will make financial decisions in the event you are too ill to do so yourself?

If you are seriously ill, the likelihood is that you do not have your computer or checkbook handy to pay bills or take care of things like filing taxes.  It is the everyday things that will get undone in the shuffle.  There is a good possibility that there is no one close to you that can afford to pay all of your bills as well as their own.  The solution is that they have access to pay your expenses when you are unable to do so yourself.  This can be on a temporary basis or a permanent basis.

Some people add a child to their checking account, but that only works if the money in the checking account can cover all of the expenses.  What if you regularly dip into savings to pay for expenses?  What if you will be unable to move back into your home or apartment?  Can they sell the home?  Can they break the lease for you?  Can they even collect your mail? Cash your checks? Access your online banking?  Got a debt card?

With a financial power of attorney they would be able to.  They can only use your assets for your care, and not their own personal needs, but at least they can manage your financial affairs.

Two weeks ago, a client called from the hospital, they were admitted with two broken hips.  They would not be able to go home for a considerable period of time, and they were concerned because they had not executed a Power of Attorney for financial matters.  They were frustrated because the banks would not take direction by phone to let a relative have access to their accounts.  This client is extremely independent and never wanted to execute a power of attorney for financial matters because “No One Needs to Know My Business”.  It took almost a month to sort out the situation.  Luckily, this injury didn’t leave the client mentally impaired, if it had, we would have needed a court ordered conservatorship to access the client’s accounts and pay their bills.  It pays to be prepared!

Another client had a stroke, and a year later is still unable to speak so that people understand them.  Luckily, they had appointed someone who could act on their behalf and speak for them.  Their home stood unoccupied for one year.  Their agent was able to pay the utility bills, cancel the cable service, manage their cell phone, and have the house looked after.  This was never planned for; however, since they had an agent appointed, everything remained taken care of until they could return home.

3)  Create, Review, Update your Will.  Don’t have a will, get one!  Have one, when was it made?  1 year ago, 5 years ago, 15 years ago?  Are the people named in the will still alive?  Are the things that you are giving to people in the will still in your possession?  Did you promise your classic car to your nephew, but the car was sold three years ago?  Wills are designed to change with life—deaths, marriages, sales, purchases—all influence the strength and validity of a will.

Don’t need a will because you have a trust—think again.  All too often there is something in your estate that is not in the name of your trust—a bank account, a CD, an IRA, a 401K, an annuity, a car, and the list goes on.  Without a will, there may be no easy way to get these assets to your beneficiaries.  Further, what if you don’t have a spouse or children, then what?  Who gets your things?  Many times a trust does not spell out all of the contingencies and nitty gritty details.

Client has a terminal illness and doesn’t get around to changing their will.  Big deal?  Yes, to the people that were excluded from the will—the four new grandchildren and great grandchildren born in the last 6 months that are excluded from education funds.  The daughter-in-law that is excluded from the will, but the husband died 3 months ago in a car accident.  The partner, companion, that has been part of your life for 20 years, but has no standing to inherit anything from your estate.

4)  Create, Review, Update your Trust.  Do you own real property?  Get a trust.  Do you have stocks and bonds?  Get a trust.  Does your estate come close to or exceed the tax exemption amount?  Get a trust.  If you have a trust, review it.  See number 3 above.  Are your beneficiaries still alive?  Do you still own the assets named in the trust?  Are your successor trustees still the right people for the job?  Is the distribution what you want?  Are you prepared for the tax changes in recent years?  Was title changed in the name of the trust for your home?  What about other assets?  Any additional grandchildren, great grandchildren, deaths in the family?

Your trust is only functional if you have your assets transferred into the trust, and you have a trustee who understands and knows their trust responsibilities. If there are assets outside of the trust, then your trustee, if they are also your financial agent, could possibly manage them with a financial power of attorney.  If you do not have the power of attorney, then the trustee would be unable to manage those assets without a court order.

5)  Ask for Help.  If you don’t understand something or you have questions, find a professional to assist you—not to sell you anything!  Having a good attorney and a good tax professional will assist you in avoiding many pitfalls encountered when we are sick or incapacitated.  Is someone in the family pressuring you to leave everything to them?  Give them the house?  Take your money so that you qualify for Medi-Care?  Get help.  Even if these suggestions are all well intentioned, they may not be legal and they may not be in your best interest.  Be sure to get the facts before you make any decisions that will affect your quality of life and ownership of your assets.  You’ve earned the money, you’ve worked a lifetime, this is about you enjoying life and being taken care of—not, what you leave behind.  Make your gifts while you are here to accept the “Thanks” and appreciation.

Remember, this information is only for education and does not constitute personal legal advice to you or for your particular situation.  Consult with a professional of your choosing to get tailored advice for your particular situation and needs.

Most people make 10 New Year’s Resolutions, so you have 5 left if you add these to your list!  Here’s to a Happy and Healthy 2024!