Rowe & Walton, PC

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The Dilemma

Jack and Sara’s problem could have been immediately avoided had they previously executed simple but powerful Health Care Powers of Attorney with standard medical record releases containing HIPAA language required by the regulations.  Most medical powers of attorney cost less than $100 per person and authorize someone to be your health care agent.  Be careful that you understand whether your medical power of attorney (POA) is a “springing” POA that takes effect only upon your incapacity as determined by one and often two physicians.  HIPAA regulations have created a Catch-22: A person cannot become your agent until incapacity has been established and yet a person does not have access to your medical records required for an incapacity finding by a physician. 

If your medical power of attorney is an “immediate” POA then you have inadvertently put your agent in charge of your medical decisions and treatment plan before you become incapacitated and you may have created a conflict if YOU want to make your own healthcare decisions as long as you are able to communicate.  The right solution for you is a carefully drafted Health Care Power of Attorney with “springing” medical decision-making but interwoven with “immediate” HIPAA releases to your agent of choice.

You and your attorney should discuss these options and evaluate what is right for you in order to be certain that your power of attorney does what it is supposed to do.  Standard financial or durable powers of attorney from any general store or shop usually do not contain satisfactory language to operate properly under these new regulations and often do not discuss alternate agents in case you and your spouse are disabled or injured at the same time.  Everyone should have a separate Durable Power of Attorney for finances to enable a loved one to sign your name in financial matters, checks or insurance claims.

Robyn Rowe Walton, of Rowe & Walton PC  is an Elder Law Attorney, member of the Utah State Bar, and member of the National Academy of Elder Law Attorneys.  Robyn earned her law degree from Gonzaga University Magna Cum Laude; Post Graduate Alternative Dispute Resolution Certification and Bachelor of Science Degree from the University of Utah.  Robyn worked as a paralegal to retired trust and estate planning attorney Del B. Rowe from 1985 to 1995.  Robyn lectures on the basics of estate planning, wills, trusts, joint tenancies and more.  Her office is located at 915 South Main Street in Bountiful, Utah and she can be reached at 298-0460 or toll-free 1-800-748-4144.  Rowe & Walton PC offers free telephone or office consultations in matters concerning estates, trusts, probates and wills. General questions can be posted to trustrandw@qwestoffice.net  Please ask about our FREE brown bag seminars for your group or business. 

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     Many newly divorced or widowed adamantly state that they will never marry again.  However, the number of elderly marriages has increased dramatically in recent years.  The National Healthy Marriage Resource Center reports that improved health later in life allows older adults greater socialization and mobility, who also value their freedom and independence. Living in their own home fosters the desire for remarriage amongst the elderly.  Changes in Social Security Laws and other retirement programs no longer penalize the widowed for remarriage later in life.     

 

     Research shows that a healthy marriage in later life contributes to a higher quality of life for older people which can reduce loneliness and  depression. Married people have the double benefit of better health overall and a spouse to act as primary care giver in times of poor health.  An estimated half million people over 65 in the U.S. remarry each year.  Of seniors who had lost a spouse, those who remarry display higher levels of life satisfaction after 2 years than those who lost a spouse and did not remarry. 

 

     Marriage the second time around is not without its problems.  Author Terri P. Smith’s book “When Your Parent Remarries Late in Life” discusses conflicts that arise over sharing time between step-families, family rituals, prized possessions, inheritances, living arrangements, care giving and illness, and even holidays and vacations.  Not only do later in life newlyweds need to navigate their own relationship issues, but each new partner often brings to the marriage existing family structures and learned dynamics, including friends, neighbors, religious systems, and money  issues. 

 

     The minute you say “I Do” in the State of Utah, both parties acquire a set of legal rights and obligations that neither often even knows about, let alone discuss.  Many questions can arise after the honeymoon: Whose house will we live in, how will we divide the living expenses, what happens if one or both of us has to go to a rest home or dies?  What rights do adult children or other  family members have if someone gets sick or dies?  All raise delicate questions few couples resolve before they tie the knot. 

     In 1994 the Utah legislature adopted the Uniform Premarital Agreement Act  recognizing the validity of properly executed prenuptial agreements (Utah Code Title 30 Chapter 8). Since that time many have learned the importance of defining a couple’s property and money rights  before they marry.  Prenuptial agreements no longer carry the stigma and negative connotations that couples don’t trust each other.  Today a typical prenuptial agreement should address how household income and the parties’ separate properties will be handled during the marriage with a view towards disability or death rather than an emphasis on possible divorce. 

 

     Since existing estate planning documents can be altered by Utah laws once you remarry, a complete estate analysis should be completed with you and your prospective spouse to be sure there aren't any unexpected results.  For example, a will executed prior to a subsequent marriage can be altered or voided by state law.  Every new couple should have current medical and durable powers of attorney so it is clear who makes medical decisions and opens mail, etc., should one  become ill. 

 

     Every couple marrying again should look into setting up a premarital agreement several months before the wedding.  A basic prenup is affordable and give you the security to know your assets will pass to your desired heirs. 

 

     For more information on how a premarital agreement or complete estate analysis can benefit your family, please contact your local elder law attorney.

Robyn Rowe Walton of Rowe & Walton PC

practices law in Bountiful. She can be reached

 at 801-298-0640 and is a member of the

National Academy of Elder Law Attorneys,

the Utah State Bar, Estate planning & Tax Section

Davis County Bar and Women Lawyers of Utah.

TRUSTS VS. WILLS

Which is Right for You?

Question #1: Should you have a trust or a will and what’s the difference?

 Answer #1: A Will is a document that is signed in compliance with certain state law formalities which disposes of your real and personal property.  A will takes effect after your death and must go through a court validation process called probate. 

 A trust is legal entity created by a grantor for the benefit of designated beneficiaries.  A trust takes effect the moment it is signed and does not require probate to be active.

 Usually, a trust offers the best overall benefits: a trust costs less in the long run than a will because the will must go to probate; a trust is a private contract where a will is filed as a matter of public record; a trust allows immediate access for loved ones on death or incapacitation where a will and probate proceedings usually takes on average 6 months to 2 years to complete.

Question #2: Why not just put my children’s names on my house, investments or banking accounts?

 Answer #2: First, minor children cannot legally own real or personal property, so if your kids are minors they shouldn’t even be named as beneficiaries on your life insurance or retirement accounts or it may be necessary to file for the court to intervene for your children to access such assets.

 Second, if your kids are sued, file bankruptcy, have an IRS tax lien or unpaid child support obligation, their creditors can attach your assets. 

Finally, there are serious income tax consequences if you’ve added your children’s names to your home or appreciated properties that can impact both your income taxes and their’s when these assets are later sold.

Question #3: Can’t I just sign a “power of attorney” over to my spouse or my children so they can transfer my assets on my death or incapacitation.

 Answer #3: No.  A power of attorney “dies” when you die having no effect whatsoever after your death.  A power of attorney, must be carefully drafted or it may not authorize your agent the power to transfer or sell real estate.  Regardless, a power of attorney only authorizes your agent to use your “stuff” for your care and not necessarily to give it to others.

Question #4: Can’t I just put my children’s names as beneficiaries on my life insurance or retirement benefits?

 Answer #4: It is possible to pass your life insurance or retirement benefits to adult children without probating your will. However, if your adult children die, become incapacitated or are receiving government benefits such as Medicaid or disability income this can jeopardize their benefits.  Children under 18 cannot receive a share of a life insurance policy or retirement account outright.  Someone (guardian, grandparents, aunts or uncles) must file for a conservatorship for each under age child; the money then goes into court-approved accounts which the court must annually review and authorize expenditures until the child is 18. 

For a free estate analysis and consultation call 298-0640.

We offer a variety of packages and payment plans.