A successful estate plan aims to distribute what you own at your death according to your wishes while preserving family harmony. The estate planning attorneys at Fitzwater Law have extensive experience working with clients on a broad range of issues including complex estate and gift tax issues, blended families, and designing trusts for children. We strive to communicate technical legal issues in a way that is understandable and often use a white board to visually diagram the concepts.
What is a Will?
Your Will is a signed, written document that describes how to divide your estate after you die. In Oregon, anyone at least 18 years of age can make a Will. The maker of a Will must follow certain important formalities for the Will to be valid.
WHAT ARE THE ADVANTAGES TO HAVING A WILL?
1. Decide Who is in Charge. Your Will allows you to appoint a personal representative. This person or financial institution will gather your assets and distribute your property according to your instructions.
2. Save Money. In a properly drafted and signed Will, you can excuse your personal representative from posting a bond, thereby reducing estate expense. Often the expense of a bond exceeds the cost of a Will.
3. Care for Minor Children. In your Will, you can name a guardian to care for your minor children in the event of the death of both parents.
4. Provide for Dependents. You can set up a trust in your Will for the benefit of your minor children or other relatives unable to manage their financial affairs. You can name a trustee responsible for making financial decisions as well as determine the age the trust should end and when distributions are made from the trust.
5. Plan for Estate Tax. Married couples with estates in excess of $1,000,000 (including life insurance and retirement accounts) can include a trust to minimize or eliminate estate and gift tax.
WHAT IF I DON´T HAVE A WILL?
If you die without a valid Will or Revocable Living Trust, the court distributes your property to your relatives by following a strict formula called “intestate succession,” set out in Oregon law.
• If you are married when you die, your spouse will receive your entire estate if you have no children or if all of your children belong to both of you.
• If your children are not also your spouse’s children (e.g., from a previous relationship), your spouse receives one-half of the estate and your children share equally in the other half.
• If you have no living spouse or children, your property may go to your parents, siblings, nieces, nephews, or to aunts, uncles, and cousins, depending on your family situation.
• Your estate will go to the State of Oregon only if there is no relative to take the property under the formula set out in the law.
The intestate laws do not reflect the desired distribution plan for many individuals. For example, part of your estate could pass directly to a minor child. This could require a court-appointed conservator to manage the minor´s funds. A trust for minors would avoid this expense.
In addition, the law of intestate succession does not recognize any relationships outside of blood, marriage or legal adoption. This means that unmarried partners, step-children, close friends, and charities are completely excluded. If you do not have a Will, your personal representative must post a bond. You can waive the bond in your Will and save this expense, as cost of a bond can exceed the cost of the Will.
DOES A WILL AVOID PROBATE?
A Will does not avoid probate, rather, a Will directs who receives your estate at the end of the probate process. Probate is the court proceeding that settles a decedent´s estate and distributes a decedent´s property. Probate also cuts off creditors´ claims. This is especially important for business owners and professionals who may have unknown future claims against them.
DO I NEED A WILL IF I HAVE A MODEST ESTATE?
Any amount of property, such as a home, constitutes an estate, so almost everyone can benefit from having a Will. If you have minor children, disabled dependents, relatives with spending issues, or if you wish your estate to go to anyone other than your spouse and children, then you will benefit from a Will as well.
CAN´T I JUST WRITE MY OWN WILL?
A properly drafted Will involves decisions requiring professional judgment acquired by years of study, training, and experience. Only a knowledgeable lawyer can help you avoid the many pitfalls of preparing a Will and advise you of the course best suited to you. If you make a mistake drafting your Will, your family will likely not know until it is too late.
Additionally, the maker of a Will must follow certain formalities:
• In Oregon, you must be 18 years old or older to make a Will. Someone under 18 can make a Will only if he or she is legally married.
• You must be “of sound mind.” This means you must understand what property you have to give and to whom you are giving this property after your death.
• A Will must be in writing and signed in the presence of two witnesses. The witnesses must see you sign the Will and then they must also sign it. It is not necessary that they read the Will or have any idea of its contents.
It is critical that proper formalities be followed. A handwritten Will that does not meet the formal requirements may not be valid if made in Oregon.
I HAVE A WILL BUT IT WAS DRAFTED A LONG TIME AGO. WHAT SHOULD I DO?
It is important to have an attorney review your Will every three to five years to keep pace with any changes in Oregon law or if there has been a change in your life such as the birth of a child, marriage, divorce or a significant change in assets. It is especially important to have your Will reviewed if you marry or divorce because a Will is automatically revoked by a subsequent marriage and partially revoked by a divorce. In addition, it may be important to update your Power of Attorney or Advance Directive at the same time.
I Made A Gift. Do I Need To Pay Gift Tax?
Gift tax is assessed if the cumulative taxable gifts made by an individual during his/her life exceed $11.58 million (2020) (which is the combined estate and gift tax exemption threshold). Each year, an individual (“donor”) may give up to $15,000 (the “annual exclusion amount”), to an unlimited number of recipients (“donees”) without any obligation to report such gifts to the IRS. With the exceptions noted below, if the amount of cumulative gifts to a single donee in a year exceed $15,000, the excess amount is a “taxable gift.” Taxable gifts must be reported on a federal gift tax return (“Form 709”). While a gift tax return may need to be filed, usually the donor’s remaining $11.58 million (2020) exemption is enough to shelter the gift from triggering a tax. Thus, a gift tax is only owed if the value of the cumulative taxable gifts over the lifetime of the donor exceeds $11.58 million (2020). That is, the purpose of the gift tax return is to track the cumulative value of the donor’s taxable gifts so that the IRS may measure how much of the donor’s combined exemption remains at his/her death. In addition to annual gifts, the following transfers may be exempt from gift tax:
• Tuition or medical expenses you pay directly to the education/medical facility for someone
• Gifts to your spouse
• Gifts to a tax-exempt organization
• Gifts to a political organization
Is My Estate Subject To Tax?
Estate tax is assessed upon the death of an individual when the value of the assets owned or controlled by that individual (the “taxable estate”) exceed a specific threshold set by statute. Any assets included in a person’s taxable estate receive a step-up in basis to date-of-death value, thus eliminating any built-in capital gain that existed prior to death.
There are potentially two levels of estate tax that may apply to Oregon residents at death:
1. The Oregon Estate Tax: Every individual residing in Oregon at the time of his/her death has a $1,000,000 exemption from Oregon estate tax. If an individual dies owning assets in excess of $1,000,000, an Oregon estate tax return must be filed. The tax rates for the Oregon estate tax start at 10% and gradually increase to 16%. There is a 100% deduction for any assets that are left to: (1) a tax-exempt organization; or (2) a surviving spouse outright (or in a qualifying trust).
2. The Federal Estate Tax: Every U.S. individual has a combined $11.58 million (2020) (this amount will be adjusted each year for a cost of living increase) exemption from federal estate and gift tax. If an individual dies with a taxable estate in excess of $11.58 million, a Federal estate tax return (“Form 706”) must be filed. The taxable estate for federal purposes includes the cumulative value of taxable gifts made by the individual during his/her lifetime (see Gift Tax discussion below). The federal estate tax is a rate of 18% up to 40%. Again, there is a 100% deduction for any assets that are left to: (1) a tax-exempt organization; or (2) a surviving spouse outright (or in a qualifying trust).
Additionally, under the “portability” rules, the estate of a surviving spouse may use the unused portion of a predeceased spouse´s federal exemption if a proper election is made.
What Is A Power Of Attorney?
A 'Power of Attorney' usually refers to a Durable Power of Attorney for Finances. This is a legal document in which you delegate to another (your 'agent' or 'attorney-in-fact') the authority to deal with your finances and assets. Usually, a Power of Attorney becomes effective when you sign it, although you may indicate that it is not to be used unless you ask your agent to use it, or unless you become incapacitated.
The Power of Attorney document describes the powers you are giving to your agent, and your agent does not have any authority to act on your behalf outside the scope of such powers. Sometimes a Power of Attorney only allows the agent to deal with a specific matter, such as the sale of a particular piece of real estate. This is known as a 'Limited Power of Attorney.' In contrast, a 'General Power of Attorney' gives your agent very broad authority to deal with your assets and finances.
Most standard forms of General Powers of Attorney do not include optional provisions, such as the right to make gifts on your behalf, that in certain appropriate situations might be very useful. For instance, if spouses gave each other a Power of Attorney that included provisions allowing assets to be transferred into just one of the spouse´s names, and one spouse becomes ill and needs Medicaid to assist with his or her long-term care expenses, the healthier spouse could use the Power of Attorney to transfer assets into the healthier spouse´s name alone. This would help to preserve assets for the healthy spouse, while allowing the ill spouse to more easily plan for Medicaid.
Or, if an individual has a taxable estate and has been making annual gifts in order to reduce the potential for estate taxes upon his or her death, the individual´s agent could continue to make such annual gifts on his or her behalf if such gifting power were specifically granted in the Power of Attorney. In these examples, having appropriate language in your Power of Attorney could potentially save you thousands of dollars. We can help you decide which optional provisions should be included in your Power of Attorney.
In Oregon, a Power of Attorney for Finances is 'durable' unless specifically stated otherwise in the document. This means that the Power of Attorney remains valid even if you become incompetent. However, a Power of Attorney is only valid during your lifetime. When you die, the Power of Attorney dies with you.
I Have A Partner. How Does This Impact My Estate Planning?
DECISION-MAKING DURING LIFE
How Can I Be Sure My Partner Has The Right To Manage My Financial Affairs If I Should Lose The Ability To Do So?
There are many traditional estate planning documents that can be utilized by unmarried couples to ensure each can make decisions for the other if incapacity occurs. If the documents are not drawn up, court procedures exist that can grant authority over one´s partner. If you do not designate your partner as your decision-maker, that duty may fall to a family member whose beliefs you do not share. Some examples and their links to lengthier explanations elsewhere in the website are listed below:
Power of Attorney for Finances. You can designate a financial decision maker to manage your affairs while you are alive, but incapacitated. This may be the ounce of prevention needed to avoid a conservatorship. (For more information about Powers of Attorney, click here.)
Conservatorship. Without a Power of Attorney for Finances, the only entity that can grant authority over your assets if you become incapacitated is the court. A conservatorship is the pound of cure when you do not have a Power of Attorney for Finances. The judge will appoint a conservator to manage your money. This person may be your partner if your partner applies to the court. However, if a family member challenges your partner´s application, the court may appoint your family member as your conservator. (For more information about Conservatorships, click here.) If you and your partner are registered as domestic partners under the Oregon Family Fairness Act, the judge must consider your legal status in determining who to appoint as your conservator. This probably increases the likelihood that your partner (instead of a different family member) will be appointed as your conservator. However, a Power of Attorney provides an additional layer of protection, as it can allow your partner to manage your affairs while avoiding a conservatorship altogether.
IF I GET SICK OR HAVE AN ACCIDENT, WHO CAN MAKE HEALTH CARE DECISIONS FOR ME IF I AM UNABLE TO MAKE MY OWN DECISIONS?
Advance Directive. Similar to financial matters, decisions have to be made regarding your health care if you become incapacitated. The Advance Directive is a document you can use to nominate a health care representative. This ounce of prevention also avoids guardianship in many cases. (For more information about the Advance Directive, click here.) To download a free copy of the Advance Directive Form, click here.
How Do I Plan For My Minor Children?
WHO WILL BE IN CHARGE OF MANAGING YOUR ESTATE FOR YOUR CHILDREN?
You select a trustee to manage and control the trust for the benefit of your children (the beneficiaries). The trustee follows your directions, using the assets for the beneficiaries. You should choose someone who is financially responsible and knows your children´s needs. If you have no trust for minors, your family will have to go to court to have a conservator appointed and you won’t get to choose who manages the money for your children.
WHO WILL CARE FOR YOUR MINOR CHILDREN SHOULD BOTH PARENTS DIE?
In a Will or Revocable Living Trust you can also nominate a guardian to care for your minor children if both parents die. A guardian has the power and responsibility of a parent and makes decisions about the children´s upbringing such as schooling, religious training, and medical treatment. The nomination of a guardian does not guarantee that this person will be appointed. However, it lets the court know your wishes, and Oregon law requires the court to carefully consider your named preferences.
HOW WILL YOU PROVIDE FOR YOUR DISABLED CHILD?
Parents of a disabled child have special planning concerns. The two most common planning tools for a child with a disability are (a) Discretionary Support Trusts to provide financial assistance and supervision and (b) Special Needs Trusts to ensure the continued eligibility for government programs such as SSI or Medicaid. Click here for more information.
What Is A Revocable Living Trust? Can I Avoid Probate?
Revocable Living Trusts are a commonly used estate planning tool. The primary reasons most people choose a Revocable Living Trust are to avoid probate and to provide for backup management of assets in the event of incapacity. However, a Revocable Living Trust is not always necessary. Once you understand the advantages and disadvantages of a Revocable Living Trust, you can decide if it is appropriate for you.
WHAT IS A REVOCABLE LIVING TRUST?
A Revocable Living Trust is an estate planning document that allows your assets to be managed and distributed in the manner you desire, both during your lifetime and upon death. It is referred to as a 'living' trust because it is established during lifetime and, in most cases, goes into effect immediately. It is a 'revocable' trust because you are free to revoke or amend the trust at any time as your circumstances change.
HOW DOES A REVOCABLE LIVING TRUST WORK WHILE I AM ABLE TO MANAGE MY FINANCES?
A Revocable Living Trust is created during your lifetime, and your assets are placed in the Trust while you are alive. You can name yourself as trustee of the Trust. This means that you can manage your own income and assets much the same as you have always done, and file individual tax returns like before. You can revoke or amend the Trust at any time, and the terms of the Trust are set entirely by you.
If you want help in managing your assets now, even though you still have mental capacity, the trust document allows you to name a trustee or co-trustee to handle the Trust. Further, you have an opportunity to appoint someone to serve as your trustee or co-trustee and then see if he or she handles things responsibly and according to your wishes. If you are dissatisfied with the way your trustee or co-trustee handles your Trust, you can take over as trustee yourself, name a new trustee, modify the powers you have given to the trustee, or revoke the Trust altogether.
WHAT HAPPENS IF I BECOME INCAPACITATED?
In the Revocable Living Trust, you can specify under what circumstances a successor trustee takes over management of the Trust. This is usually when the person who created the Trust becomes incapacitated. You can spell out in the Trust how incapacity must be established. Typically, a determination of incapacity requires one or two letters from a physician. Once incapacity is established, the successor trustee, who has been named by you in the Trust, can take over management of the assets.
A Revocable Living Trust avoids the need for a court order establishing a conservatorship if at some time in the future you become unable to manage your own financial affairs, either temporarily or permanently. While naming an agent in a Power of Attorney for Finances can often accomplish this, Powers of Attorney are not as reliably recognized by financial institutions.
HOW DO I KNOW MY TRUSTEE WILL PAY FOR MY HIGHEST QUALITY OF LIFE AND SUPPORT MY VALUES?
The Revocable Living Trust is flexible and can be tailored to your specific needs, desires, and financial resources. This includes the ability to make provisions for care and comfort. Specific instructions about care and comfort are particularly important when the successor trustee is an institution (bank or trust company), or when a family member is very busy or geographically remote. Examples of personal issues that can be included in your trust document are:
• Specifying that you prefer to be cared for at home (even if the cost of such care would be significantly greater than the cost of nursing or other long-term care);
• Authorizing the trustee to provide additional services and care monitoring if you become hospitalized or require placement in a long-term care facility; and
• The continuance of contributions to your Church or charitable organizations.
HOW DOES THE REVOCABLE LIVING TRUST WORK AT MY DEATH?
Your successor trustee will have the authority to take over management of the Trust and follow your instructions as spelled out in the Trust. Assets that are owned by the Trust will avoid probate entirely, which, in turn, can avoid significant costs and delays at your death. People with real property in more than one state can avoid multiple probates with the use of a Trust. Another advantage of a Trust is that your financial affairs are kept completely private. A Trust eliminates the need for a court proceeding, and other than tax returns, there is no public record.
DOES A REVOCABLE LIVING TRUST SAVE ON TAXES?
Spouses with large estates can incorporate a tax savings plan to eliminate or minimize estate taxes. A tax savings plan can also be incorporated into Wills, but in most cases, this ultimately requires a probate when each spouse dies. Therefore, use of a Joint Revocable Living Trust or separate Revocable Living Trusts for each spouse will avoid two probates instead of one.
WHAT OTHER DOCUMENTS WILL I NEED?
In addition to the Revocable Living Trust, you will need a Pourover Will and Powers of Attorney for Finances. Also, typically the attorney who assists you will prepare deeds to transfer real property to the Trust and provide an Advance Directive for Health Care.
WHO SHOULD BE MY SUCCESSOR TRUSTEE?
Your successor trustee should be someone who is trustworthy, responsible with investments, good with paperwork, and preferably a good communicator. This can be an adult child, other relative, friend, or professional fiduciary.
WHAT ARE THE DISADVANTAGES OF A REVOCABLE LIVING TRUST?
A Revocable Living Trust is not the best option for every situation. It typically costs $800 to $1,200 more for a Trust package than a comparable Will package. It may not be necessary to incur this additional cost for people who are younger, healthy, and do not have large estates. However, some people in these circumstances still choose a Trust because they want to make things easier for their families in the event of an untimely death.
There is more paperwork involved in finalizing a Revocable Living Trust than a Will because title to most of the assets is transferred into the Trust. Some people find this cumbersome and confusing.
In short, a Revocable Living Trust, while often very helpful and cost-effective, is not always necessary. An experienced attorney can help you decide if it meets your individual needs.
I Have A Family Member Who Experiences A Disability. What Is A Special Needs Trust?
WHAT IS A SPECIAL NEEDS TRUST?
A Special Needs Trust is a planning tool to benefit people who receive government benefits. This type of trust preserves eligibility for government benefits and establishes a separate fund that can pay for things over and above basic needs that improve the beneficiary´s quality of life.
WHY WOULD SOMEONE NEED A SPECIAL NEEDS TRUST?
Often a person with a disability receives public benefits. There are several government programs that provide people with disabilities with help. This help may take the form of cash, medical assistance, housing, or food. Many of these programs, such as Supplemental Security Income (SSI) and Medicaid, have financial eligibility requirements.
Most public benefits programs have a resource requirement that limits the amount of assets a person can own and still be eligible for the program. There are certain assets that do not count, such as a house in which the beneficiary lives and one car. For most programs, the limit for assets that are not excluded is $2,000.
Similarly, if someone has monthly income that is too high, it may affect eligibility for benefits. The income eligibility limits vary among the programs. With a Special Needs Trust, the assets can be given to the trustee of the trust, to be used for special needs. In some circumstances, income can be directed to the trustee as well.
WHAT ARE SPECIAL NEEDS?
Special needs include any goods and services that are not food or shelter. 'Supplemental needs' is another term for special needs. As a result of a rule change in 2005, clothing can now be treated as a special need. Special needs include, but are not limited to, the following: clothing; transportation, such as car expenses or bus pass; telephone; education; cable television; private rehabilitative services; occupational or physical therapy; private case management; medical services for which there are no other funds available; health insurance premiums; dental care; medication and supplements; psychological support services; companion care; respite care; durable medical equipment; massage; recreation and vacation; entertainment; computer equipment and services; personal care items and services.
CAN A SPECIAL NEEDS TRUST PAY FOR FOOD OR SHELTER?
The most common way for a Trust to be written is to limit expenditures to items that are not food and shelter. This strict distribution standard has been proven to work for most, if not all, types of public benefits programs that limit the resources a person may own.
In some situations a more flexible standard, often called the hybrid distribution standard, can be included in the Trust. This allows the trustee to pay for food and shelter in certain limited circumstances. If a distribution is made for basic needs there are usually consequences, such as a reduction in government assistance, but in some cases the overall benefit is worth it. The hybrid standard is more flexible than the strict distribution standard but is not always desirable. Be sure to get advice from a knowledgeable attorney before deciding to include this authority in a Special Needs Trust.
HOW DOES A SPECIAL NEEDS TRUST WORK?
Distributions from a Special Needs Trust are paid at the discretion of the trustee. It is important that the trustee directly pay the person or business providing the special need. The beneficiary is ordinarily not given cash with which to make an allowed purchase. This is because the cash could be used to purchase a prohibited item, such as a meal or item of clothing. Receipt of the cash must be reported to the government agency providing assistance, and benefits may be reduced or eliminated for a period of time. To avoid this, the trustee should pay directly for the item requested.
WHO SHOULD BE THE TRUSTEE?
A trustee can be a private person, such as a relative of the beneficiary. Alternatively, a professional trustee can be named, such as a financial institution or small business that offers fiduciary services in the local community. In some cases, both a relative of the beneficiary and a professional fiduciary are named as co-trustees. Choosing the trustee for a Special Needs Trust is an important decision. The trustee will have an ongoing relationship with the beneficiary, and it is paramount that the trustee be sensitive to the beneficiary´s needs and takes the time to understand the beneficiary´s unique situation. The trustee must also exercise good judgment when making distributions and be knowledgeable about the impact of distributions on the beneficiary´s public benefits. In addition, the trustee must be a prudent investor and good with record keeping and paperwork. Being a trustee is not an easy job!
HOW ARE SPECIAL NEEDS TRUSTS CREATED?
Special Needs Trusts are often created by third parties wishing to give assets to the beneficiary without jeopardizing public benefits. The most common examples of this are Special Needs Trusts created by parents or grandparents for a child who has a disability. Mechanisms used by third parties to create and fund a Special Needs Trust are described below under Trusts Created by Parents, Grandparents, and Other Third Parties.
A recipient of public benefits may have assets of his or her own. In some cases it is possible to transfer the beneficiary´s own funds into a Special Needs Trust and keep public benefits. This type of Trust is described below under Trusts Created With the Assets of the Beneficiary.
TRUSTS CREATED BY PARENTS, GRANDPARENTS, AND OTHER THIRD PARTIES
A parent or other third party may set up a Special Needs Trust in several ways. The three most common ways are described below.
1. By Will: A person may create a Trust in his or her Will for the benefit of someone on public benefits. The rules for the Trust are written in the Will, but the Trust does not take effect until the person making the Will dies. The Special Needs Trust can specify who will receive any remaining assets in the Trust at the death of the beneficiary.
2. Through a Revocable Living Trust: It is also possible to establish a Special Needs Trust for someone on public benefits in a Revocable Living Trust, to take effect only when the person making the Revocable Living Trust dies. An exception is that a Special Needs Trust for a spouse should be established in a Will, and not in a Revocable Living Trust.
3. Through an Irrevocable Living Trust: Sometimes it is advantageous to set up an Irrevocable Living Trust with special needs provisions and transfer assets to it while the donor, such as a parent or grandparent, is alive. This way, if one or more people want to donate to a fund for the beneficiary by making lifetime gifts, a Special Needs Trust is in place to receive those gifts. In fact, the existence of an active Special Needs Trust often serves as an inducement to relatives and friends to make lifetime donations.
Also, relatives and friends can name the existing Special Needs Trust as a beneficiary in their own Wills. This encourages bequests that might not otherwise be made because the person making the bequest does not have to be concerned about the effect of the gift on government benefits.
TRUSTS CREATED WITH THE ASSETS OF THE BENEFICIARY
A person who receives government benefits may have assets of his or her own that will jeopardize eligibility. For example, the person may sell a house that was an excluded asset and now have countable assets in excess of $2,000. As another example, he or she may receive an inheritance directly because a parent who died did not create a Special Needs Trust in his or her Will. As a third example, the person may have been injured in an accident and be receiving a settlement or award to compensate him or her for an injury.
1. Payback Trust Exception: There are rules that make it disadvantageous for people who are 65 years or older to create Special Needs Trusts in these situations if it will benefit themselves. However, for people who are under 65 years old, there is an exception that allows them to have a Special Needs Trust. This type of Trust is often called a 'Payback Trust' or 'Under 65 Disability Trust.'
2. Requirements for a Payback Trust: There are four requirements for this type of Trust to qualify under the special exception described below:
a. The Payback Trust must be established by a parent, grandparent, court, or conservator.
b. The beneficiary must be disabled as defined in the Social Security Act. If the beneficiary is receiving Social Security Disability Income (SSDI) or Supplemental Security Income (SSI), then this requirement is automatically met. If not, then the beneficiary will have to prove the nature and extent of disability.
c. The beneficiary must be under 65 at the time the assets are being put into the Payback Trust.
d. At the beneficiary´s death, the remaining Payback Trust balance, if any, must be given to any Medicaid agency that provided assistance to the beneficiary
3. Steps to Establish a Payback Trust: The steps to set up a Payback Trust will depend on the circumstances, such as whether a parent or grandparent is available to participate in the process, and whether the beneficiary has capacity to make decisions. If the beneficiary does not have the capacity to make decisions, then a court will be involved to approve the Payback Trust. If not, then in some cases a court is not required.
4. Personal Injury Settlements and Awards: In cases involving a personal injury, there are special issues that should be considered prior to trial or settlement of the case. If the case is resolved without addressing these issues, it can result in later complications and a loss of public benefits, particularly when a structured settlement is involved. Fortunately, with a little pre-planning, often a person receiving a settlement that is not in itself sufficient for lifetime needs can preserve public benefits so that the settlement funds can be
used to maximize his or her quality of life. In these cases, legal advice should be sought from lawyers who have expertise in this area of the law.
What Is The Advance Directive For Healthcare?
If you become sick and unable to make your own health care decisions, someone else will be appointed to make those decisions for you. If you do not have the appropriate legal tool in place, it may be necessary for a court to appoint someone (a guardian) to make health care and medical decisions for you.
The Oregon Advance Directive form allows you to choose someone to make health care and medical decisions for you when you are unable to make those decisions for yourself. You designate a spouse, partner, family member, or friend (called 'health care representative') to act legally on your behalf to make health care decisions. This document has no effect until you are incapable of making health care decisions for yourself.
Your health care representative will be authorized to make most health care decisions you could have made. This can include the authority to withdraw life support procedures, such as respirators or artificial nutrition and hydration. The Advance Directive is your statement to your family and your doctor regarding your wishes about life support. You direct that if your death is imminent because of a terminal disease or injury, you do or do not want artificial life support procedures used to postpone your natural moment of death.
The content of the Advance Directive is dictated by Oregon statute. In 2018, the statute was modified with the goal of simplifying both the language and the execution of the legal document.
The new Advance Directive form now has four main parts:
Under Section 1, you may complete your name, birth date, telephone number, address and email address.
Under Section 2, you may appoint your health care representative, as well as two alternatives, and provide the contact information for each person. Your health care representative will have the authority to make health care decisions for you in the event you are temporarily or permanently unable to do so. Your health care representative must act in accordance with your desires, to the extent those desires are known.
Under Section 3, you may provide instructions to your health care representative regarding your health care decision preferences.
Under Section 4, you may provide directions regarding your end of life care. You may express your wishes regarding tube feeding and life support by placing your initials next to the desired response for each of the specific instances provided in the subsections.
You will need to sign and date the document, as well as fill in your name at the bottom of each page. You must sign the document in front of a Notary Public OR you must sign in front of two qualifying witnesses. Your health care representatives must sign accepting their appointment.
If you have questions about the form or how to sign it, we would be glad to help.
To download a free copy of the Advance Directive Form, click here.
My Pets Are Special To Me. How Can I Plan For Them After I Am Gone?
HOW CAN I PROVIDE FOR MY PET´S FUTURE?
We share a special bond with our animal companions. Our pets rely on us for food, shelter, and companionship, and shower us in return with unconditional love and affection. How can you make sure that your cat is well cared for if you become ill? What if you are injured or incapacitated and can no longer take care of your dog? What will happen to your pet when you die?
PREPARING FOR THE TEMPORARY EMERGENCY
One of the first steps in a good care plan for your pet is to find one or two neighbors or nearby relatives or friends who would be willing to help out during a crisis. Find out who would be available if your pet needs someone else to care for it for a short time.
Next, make a list of instructions describing each pet´s diet, exercise schedule, health concerns, and veterinary contact information. Include on the list names and phone numbers of the emergency caregivers you have chosen for your pet. Post a copy of your instructions in a prominent place in your home, and carry a copy of those instructions in your purse or wallet.
PLANNING FOR LONG-TERM OR PERMANENT CARE FOR YOUR PET
Only a handful of states acknowledge pet trusts, and Oregon is one of them. Oregon law recognizes a pet trust as a legally enforceable method to provide for your pets and their care after your death.
In Oregon, an experienced attorney can help you create a pet trust through a Will or a trust document, such as a Revocable Living Trust. An attorney can explain how you can use a pet trust to name one or more individuals to care for one or more of your pets after your death. You can also name a 'trustee' to hold cash or other property 'in trust' for the benefit of your pet.
A Power of Attorney is another tool for providing for your pet´s future. However, a Power of Attorney is only effective during your lifetime, whereas a Will takes effect after your death. In a Power of Attorney, you can authorize your 'agent' to give your pet the care it needs, pay for necessary expenses, and even find a permanent home for your pet, if needed. Again, an experienced estate planning attorney can help you decide whether this document is right for you.
1. What to Look for in a Caregiver for Your Pet. One of the obvious questions you need to consider when choosing someone to take care of your pet is whether this person is 'animal friendly.' Is the person compassionate, flexible, and sensitive to the needs and comfort of companion animals? Observe how this person interacts with your pet now. Consider whether this person has successfully cared for his or her own animals. If you have more than one pet, will the same person be able to take them all, or do you need to
choose more than one caregiver?
Second, does the person live in an environment that is suitable for your pet? Is there enough space? Does the person have existing pets, and if so, will your pets get along well together? Will your pet get along with other family members in the person´s household? You should also think about the caregiver´s general health, and whether he or she is suitable to care for your pet in the future when you need someone to step in.
Third, can you trust this person´s judgment to make decisions about your pet? Realize that you can only go so far in providing instructions for your pet´s future. The caregiver you choose will be the person ultimately responsible for making all decisions for your pet.
You should ask yourself these three questions for both a primary and alternate choice for each pet. In addition, consider also giving your executor the power to choose someone for you, in the event that the persons you choose are not able to take on the responsibility when the time comes.
2. Choosing an Organization. Another option in choosing someone to care for your pet is an organization that specializes in caring for animals. These range from your local humane society or shelter, to long-term care facilities or sanctuaries.
A humane shelter might be an appropriate alternative for finding a suitable caregiver to adopt a pet. These facilities, however, are not designed to board and care for animals on a permanent basis. Humane shelters are typically faced with limited space and should be considered as an option of last resort.
HOW TO GET STARTED
• Identify your pet in order to prevent fraud (photos, microchips, DNA samples, or by describing your pet as a 'class' - 'the pet(s) owned by me at the time of my death/illness').
• Describe in detail your pet´s standard of living and care.
• Calculate the amount of assets needed to pay the costs of care for your pet´s lifetime.
• Choose a primary and alternate caregiver for each pet.
• Choose a trustee for the pet trust, and determine the expenses for managing the pet trust.
• Require your trustee to regularly check up on the caregiver to ensure that your pet is well cared for.
• Decide who will receive any assets that might remain in the trust after your pet passes away. This could be an organization such as your local humane society, or a service dog training organization, for example, or perhaps an individual or group of individuals.
• Provide for the final disposition of your pet.
DISCLAIMER: The information contained in this document is based on Oregon law and is subject to change. It should be used for general purposes only and should not be construed as specific legal advice by Fitzwater Meyer Hollis & Marmion, LLP or its attorneys. Neither this website nor use of its information creates an attorney client relationship. If you have specific legal questions, consult with your own attorney or call us for an appointment.