Wills, Trusts, Probate – Full Service Estate Law and Planning
- Over 50 Years of Experience
- We Have Probated Over 500 Wills
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- OVERVIEW OF WILLS, TRUSTS & ESTATES
- ESTATE PLANNING
- WILL BASICS
- TRUST BASICS
- POWERS OF ATTORNEY
- LIVING WILLS & ADVANCE HEALTH CARE DIRECTIVES
- ELDER CARE
- PROBATE & ESTATE ADMINISTRATION
A Power of Attorney is a legal document that gives another person, whom you designate as your Agent, the power to make financial and other decisions on your behalf, and to generally manage your affairs. This right can be given to anyone you choose, and is terminated upon your death. The Power of Attorney remains in effect, even if you should be declared incompetent or incapacitated by a licensed medical professional.
A Power of Attorney gives your Agent broad powers over your financial affairs, such as paying bills, making investments, conducting your banking and endorsing checks. Under the Power of Attorney, your Agent also has the authority to sell, mortgage, manage and control your property, enter into contracts on your behalf, retain professionals and consultants, make decisions involving your care, and even appoint a successor. A Power of Attorney can be revoked at your option; however, it cannot be revoked after you have been declared incapacitated or incompetent.
Your Agent has a legal fiduciary duty to act in your best interests under the Power of Attorney. If your Agent acts with gross negligence, recklessness or engages in intentional misconduct, he or she can be held legally responsible. Further, your Agent must account for all of your expenses. Because of the broad authority and control that your Agent will hold under this powerful legal document, your selection of an Agent in whom you can trust and confide is critical.
A Durable Power of Attorney for Health Care grants a named Agent, whom you designate, the authority to make decisions regarding your health and personal care in the event that you become incapable of making such decisions for yourself. Your Agent has broad authority to make decisions regarding your medical treatment, hospital or nursing home admission, home health care, life-sustaining treatment and other important health care decisions. Your Agent will have the power to make many important decisions on your behalf when you cannot make your wishes known, so it is important to discuss your preferences with this individual. In the event that your Agent does not know your wishes, he or she must determine what is in your best interests. Therefore, selecting a person with similar beliefs as yourself may be important to you.
A Living Will, or Advance Health Care Directive, is a legal document that specifies what health care or methods of treatment are to be administered to the person making the directive in the event that you are in a permanent state of unconsciousness or where you are terminally ill with no reasonable hope of recovery. In the Living Will, an individual can specifically express what measures he or she wants to sustain life, as well as those which are not desired. The Living Will is usually prepared in conjunction with a Durable Power of Attorney for Health Care. The Living Will helps to reduce the burden on your loved ones at this stressful time by making your wishes on receiving or denying life-sustaining treatment known to your family and health care provider in advance.
The Living Will should fully reflect your choices on the specific types of life-sustaining care that you choose to accept or deny should your doctor declare you to be in a permanent state of unconsciousness. If you fail to indicate whether or not you wish to receive a certain method of treatment, your doctor may have no choice to provide such care. A Living Will can be revoked by you at any time.
The types of life-sustaining treatment generally addressed in a Living Will include:
- Cardiac resuscitation
- Feeding tubes or IV fluids
- Blood transfusion
- Diagnostic testing
- Surgery or invasive procedures
You should give a copy of your signed Living Will to your health care provider. It will not become effective unless and until your doctor determines that you are in a terminal condition or a state of permanent unconsciousness and another doctor has confirmed this assessment. The health care professionals will follow the declarations stated in your Living Will, and ensure that your wishes are carried out and that you receive the type of medical care that you desire.
Elder care encompasses a wide variety of legal and financial issues. Elder care involves choosing an appropriate physician to care for an aging patient, and making decisions about moving an elderly person from their home environment to a residential care setting or providing home and community-based services. Elder care also refers to an array of care services, such as adult day services, assisted living facilities, hospice care, skilled nursing facilities, home health care and other specialized care services. Elder care includes services offered through state and local government programs, as well as those provided by non-profit groups and fee-for-service programs.
An attorney experienced in elder law matters can assist you in planning for the future through powers of attorney and advance directives to ensure that proper medical treatment is provided, and advise on long-term care insurance or other financing options that foster the most independence and security for the individuals who wish to remain in their homes. We can help you develop a comprehensive plan for your future by assisting you with probate and estate planning, wealth planning to preserve and protect your assets, guardianships and conservatorships, long-term care arrangements, and Medicare, Medicaid and Social Security planning.
- GUARDIANSHIPS AND CONSERVATORSHIPS
Through a guardianship or conservatorship, a guardian or conservator is appointed by the court to handle an individual’s financial affairs and to ensure that he or she receives adequate personal care. A guardianship is typically sought when an elderly or incapacitated person is unable to handle his or her finances and personal affairs. The appointed guardian assumes responsibility for the person’s finances, health and safety. A guardianship is granted when the court determines, upon consideration of the medical evidence presented, that the individual is unable to make decisions regarding their own finances or welfare.
- PLANNING FOR LONG-TERM CARE
It is important to have a long-term care plan in place in the event of a serious mental or physical disability. There are many financial, medical and personal considerations involved in developing a long-term care plan. Planning now for your future needs will allow you to avoid some of the rising costs of long-term health care without exhausting your life’s savings. A lawyer experienced in elder law matters can advise you on long-term care insurance and Medicare and Medicaid eligibility, and can assist you in choosing long-term care options that best suit your needs.
Estate administration refers to the process of probating the Estate of a deceased person, called a decedent, which generally includes gathering, taking an inventory and appraising assets; paying debts; filing and paying Estate taxes; and distributing any remaining assets to beneficiaries. An attorney experienced in probate and estate administration can help simplify this complicated process.
Probate is the process in which a Will is proved to be valid or invalid by the court. Creditors of the Estate are provided the opportunity to file claims against the Estate and receive payment of those claims. After the administration fees, taxes and creditor’s claims are paid, any remaining assets of the Estate are distributed to the beneficiaries. Probate assets are subject to court administration. Probate can be an expensive and lengthy process. Probate assets include assets owned only by the decedent that do not have a named beneficiary.
Not all assets are subject to probate, and these assets are typically distributed more quickly to the named beneficiaries.
Non-probate assets generally include the following:
- Property owned in joint tenancy or tenancy by entirety with rights of survivorship
- Payment on Death (POD) bank accounts
- Transfer on Death (TOD) securities
- Life insurance policies that designate a beneficiary other than the decedent’s Estate
- IRAs, 401(k)s, and other retirement plans that name a beneficiary other than the decedent’s Estate
The decedent’s Estate is generally comprised of all of the property owned by the decedent on the date of his or her death. If the decedent made a Will, the probate court will determine if the will is valid and then oversee the administration of the Estate by the person appointed in the Will to manage the Estate, called the executor. If there is no Will, or the Will is determined to be invalid, the probate court will appoint an administrator, and the decedent’s assets will be distributed to his or her legal heirs in accordance with Pennsylvania law.
The executor is the individual appointed by the decedent in the Will to administer the decedent’s Estate. The executor owes a fiduciary duty to and must act in the best interests of the Estate. The executor has many important functions to complete, including:
- Gathering, taking an inventory and appraising all assets of the Estate
- Collecting any payments or debts owed to the Estate
- Paying any debts owed by the estate
- Filing and paying local, state and federal taxes
- Publishing notices for potential heirs and creditors
- Distributing assets to the beneficiaries as stipulated in the Will
A competent attorney who is skilled in the probate process and knowledgeable of the tax consequences can preserve Estate assets to ensure an effective administration of the Estate, and will assist you through this difficult and complicated process.
For excellent service with estate law & planning, contact the Poconos highly-acclaimed
Monroe County, PA law firm – Fisher & Fisher Law Offices.