Lerman Law Associates, P.C.

Do you give up your rights with a power of attorney?

2025-01-20T17:28:57Z

You’ve started working on your estate plan and initially used a living will. This allowed you to leave specific medical instructions, such as a preference not to be resuscitated or kept on life support.

Now, you’re considering using a medical power of attorney instead. Doing so means you don’t have to guess about every possible medical scenario in advance. Instead, you appoint an agent to make these decisions for you if the need arises.

But does creating a medical power of attorney mean you’re giving up your rights immediately? Could your agent start making medical decisions for you right away? And does this make a living will the better choice?

A springing power of attorney

In most cases, people in your situation will opt for a springing power of attorney. This type of power of attorney only takes effect under specific conditions, such as incapacitation.

This means you retain full control over your medical decisions as long as you are capable of making them. Drafting and filing a medical power of attorney does not surrender your rights today. However, if you were to become incapacitated—for example, due to traumatic injuries from a car accident or a stroke that leaves you in a medically induced coma—your agent would step in to make decisions on your behalf.

You’re not signing away your rights; you’re ensuring that someone you trust can act in your best interests when you are unable to do so.

Setting up your estate plan

It’s crucial to draft these documents carefully and ensure they align with your wishes. Take the time to explore your legal options and set up your estate plan properly.

Should an estate plan split up assets equally?

2025-07-10T10:14:00Z

When drafting an estate plan, you have many options to design a plan that works best for your family. Certain beneficiaries may have specific needs, or you may have spoken with them in advance about how to distribute assets. Often, beneficiaries assume that asset distribution will be equal. However, it’s important to remember that you don’t necessarily have to give everyone an equal share. For instance, if one beneficiary has a greater financial need than another, you can adjust your estate plan to provide them with more assistance. Unequal bequests have become more common in recent years as parents address issues like financial disparity among their adult children.

It can cause conflicts

That said, equal division is sometimes easier because it reduces the potential for conflict. For example, imagine you have two children who both assume they will receive 50% of your estate. Neither has discussed this with you, but they believe equal distribution is what you’ll do. If, after your passing, one child receives 75% of the estate and the other receives only 25%, it could lead to an estate dispute. The child who received less might claim their sibling exerted undue influence to force you to change your will. To avoid this, it’s a good idea to discuss your estate plan with your beneficiaries in advance. By setting appropriate expectations, even if the division is unequal, you can reduce the likelihood of disputes.

Creating your estate plan

This is just one aspect of estate planning that can become complicated. Take the time to carefully explore your legal options and draft a plan that works best for your family.

What are the pros and cons of a revocable trust?

2024-12-19T15:42:36Z

Estate planning in Georgia often leads people to consider revocable trusts. This popular tool offers benefits but also has drawbacks. Let's explore the pros and cons of revocable trusts in Georgia to help you decide if they fit your estate plan.

What is a revocable trust?

A revocable trust, also called a living trust, holds and manages your assets during your lifetime. You can change or cancel this trust anytime. When you pass away, the trust becomes irrevocable, and your chosen successor trustee distributes the assets as you've specified.

Pros of revocable trusts in Georgia

Revocable trusts offer several advantages:

Assets in the trust skip the often time-consuming and expensive probate process.

Unlike wills, trusts aren't public records, keeping your affairs private.

You can alter the trust as your life circumstances change.

If you become incapacitated, your successor trustee can manage your affairs without court involvement.

These benefits can offer peace of mind and potentially save time and money for your beneficiaries.

Cons of revocable trusts in Georgia

Despite their benefits, revocable trusts have some drawbacks:

Setting up a trust usually costs more than creating a will.

Trusts need active management, including transferring assets into the trust.

Revocable trusts don't offer tax advantages during your lifetime.

Trusts can be harder to set up and understand than simple wills.

Consider these factors carefully when deciding if a revocable trust suits your needs. Your decision to use a revocable trust in Georgia depends on your specific situation, including your assets, family dynamics and long-term goals. An experienced estate planning attorney can help you determine if a revocable trust fits your estate plan. By understanding the advantages and disadvantages of revocable trusts, you can make an informed choice about your estate planning strategy. Whether you opt for a revocable trust or another estate planning tool, the most important step is to start planning now to protect your assets and provide for your loved ones.

Why advance planning for long-term care expenses matters

2024-12-06T20:56:02Z

Many older adults preparing for their golden years want to age in place. They aim to keep their cost-of-living expenses low by remaining in their home and relying on people they know for basic support. However, not everyone is fortunate enough to achieve that goal. Some people require professional medical assistance later in life. Those individuals may have long-term care costs that add up to thousands of dollars per month. In most cases, the only way to guarantee access to benefits that help cover those costs is through advanced planning. People preparing for retirement can plan ahead of time, which can help them qualify for Medicaid if they need in-home nursing support or decide to move to a nursing home. Medicare won't cover those costs regardless of need, so advance planning is important.

Qualifying for Medicaid can be difficult

Medicaid has very strict limits that apply when people seek benefits. Specifically, there are rules limiting both income and countable assets for Medicaid applicants. The Medicaid program looks back at 60 months or five years of financial records when determining if people are actually eligible for benefits. Advance planning is important or people are subject to a penalty. Any gifts or transfers made in the years leading up to their application can count against them when they apply. They may need to pay out of pocket for a specific number of months of care before Medicaid coverage starts.

Benefits can diminish an individual's legacy

The other main concern for those who might eventually need Medicaid is that the state may make a claim against their estate after they die. The property that they want their children or other beneficiaries to inherit may end up covering their long-term care costs to reimburse Medicaid. The only way to avoid those negative outcomes is through advanced planning well before Medicaid benefits become necessary. Those who address the possibility of needing long-term care in the future before their health declines protect themselves and others. People who plan for retirement can feel more confident about getting benefits quickly when they need support later in life. They may also have less reason to worry about whether their loved ones inherit anything of value from their estate. Addressing long-term care costs as part of the broader estate planning process is a smart move for most people thinking about their golden years and their final legacy. Care costs can be difficult to cover without advanced planning and can significantly reduce the value of an estate after an individual dies

What is a hybrid domestic asset protection trust?

2024-11-30T17:41:15Z

In Georgia, traditional domestic asset protection trusts (DAPTs) are not permitted, potentially leaving your foreign and domestic assets unprotected. However, a hybrid domestic asset protection trust (HDAPT) offers a viable alternative for asset safety. An HDAPT combines elements of both domestic and foreign asset protection trusts, providing a secure shield for your assets. This means that assets held in foreign jurisdictions can enjoy the same level of protection, expanding the scope of asset security.

Possible advantages to consider

HDAPTs can offer robust protection for assets and are recognized under Georgia law. By structuring the trust appropriately, assets are shielded from creditors and legal liabilities. Transferring assets into the trust also removes them from your personal estate, making them less vulnerable to legal claims. Additionally, HDAPTs can be part of a comprehensive estate plan, helping to minimize estate taxes and provide for your beneficiaries. Finally, knowing you have an asset protection plan in place can give you peace of mind.

Potential downsides to plan around

Despite the benefits, there are possible disadvantages to know about. While an HDAPT can provide significant protection, it may not be as foolproof as foreign asset protection trusts in certain scenarios. Further, the effectiveness of an HDAPT depends on strict adherence to legal formalities, and any missteps could result in the trust being invalidated. Since the HDAPT cannot be altered after its creation, losing control of the assets it contains is a major drawback for many. If you are still unsure about creating an HDAPT, it’s smart to get experienced estate planning guidance. This can help you determine whether it’s right for you.

Nobody is too young for an estate plan

2024-11-18T08:26:44Z

You are young, healthy and busy building your life. Estate planning might seem like a premature idea, something for older relatives or retirees. But life is unpredictable, and having an estate plan in place can bring peace of mind and protect your loved ones, no matter your age.

Estate planning goes beyond asset distribution

An estate plan is a set of legal documents that specify your preferences regarding your property, healthcare, and financial affairs in case of incapacity or death. Consider these key points:

Protection for your family: If you have dependents, an estate plan can designate guardians and provide financial support.
Control over your assets: Without a will, state laws will decide the distribution of your property.
Healthcare decisions: Advance directives allow you to specify your medical care preferences.
Digital asset management: In today’s digital age, it is crucial to plan for online accounts and digital property.
Minimizing taxes and legal complications: Proper planning can reduce the tax burden on your beneficiaries.

In Georgia, if you die without a will (intestate), the state's laws of intestacy will determine how your assets are distributed. This might not align with your wishes, especially if you are unmarried or in a non-traditional family structure. Additionally, Georgia law requires that a person be at least 14 years old to make a will, emphasizing that estate planning can start early. As your life circumstances change (marriage, children, property acquisition), your estate plan should evolve too. Frequent check-ins and revisions may be necessary to guarantee your plan stays relevant and effective.

Do not wait until it is too late

Estate planning might seem unnecessary when you are young, but it is a proactive way to protect yourself and your family. Work with a Georgia estate planning attorney to discuss your options. With their experience, you can create a comprehensive estate plan that gives you peace of mind and security for the future.

Caring for your pets after you pass away

2024-11-07T14:26:01Z

You may think of your pets as cherished family members, and planning for their care can help prevent them from facing uncertain futures or ending up in shelters. Addressing your pets in your estate plan can help you feel more confident that they will be cared for if you pass away. Embracing various estate planning options, including pet trusts and designated caregivers, will allow you to make specific arrangements for your pets, thereby better ensuring they receive the love and care they deserve in the event that you can no longer provide it.

Designating a caregiver

One of the simplest ways to provide for your pets after your death is to designate a trusted friend or family member as their caregiver. In your estate plan, you can name a specific person to take ownership of your pet. It’s wise to discuss this with the potential caregiver in advance to make sure they are willing and prepared to care for your pet. Additionally, providing instructions about your pet’s routine, diet and medical needs can also help ease the transition for both the caregiver and your pet alike.

Setting up a pet trust

Creating a pet trust can be an ideal way to provide financial resources for your pet’s care in ways that are more enforceable than leaving a gift to their caregiver via a will. A pet trust will allow you to set aside funds specifically for your pet’s needs, such as food, grooming, medical care and other expenses. You can appoint a trustee to manage these funds distinct from the caregiver of your pet, in order to better ensure that money is spent responsibly. The trustee disburses funds to the caregiver or uses them directly for your pet’s expenses, providing an added layer of oversight. If establishing a pet trust isn’t feasible, you can still set aside funds in your will for the chosen caregiver to use toward your pet’s expenses. While this option does not provide the same level of oversight as a trust, it can still help to ensure that some financial support is available for your pet’s care. At the end of the day, because your pet relies upon you, it’s important to take steps to safeguard their well-being, in the event that you outlive them. It’s not an easy thought to process, but you owe it to your pet to see that they’re cared for, no matter what.

Does debt pass to the next generation in an estate plan?

2024-10-21T16:33:21Z

When someone passes away, there is a wealth transfer. Their assets move on to the next generation. If they die intestate – without an estate plan – then state law may dictate how these assets should be divided. If they make an estate plan, they can choose beneficiaries who should receive specific assets. But people don’t just have assets: They also have debts. They could have mortgage loans, student loans or business loans. They may owe money for property taxes or income taxes. They may have credit card loans or they may have financed specific products, like electronics. What happens to all of this debt when they pass away?

Paying off remaining debt

Creditors are still going to want to be repaid, even if the person who took out the debt has passed away. This is usually done by the estate executor. They have legal access to the financial accounts and funds, so they take money from the deceased person’s estate and pay off the debts. Ideally, there will be enough money to cover everything, and any remaining assets can be distributed to the beneficiaries. In one sense, this does mean that beneficiaries can lose funds. If the deceased person didn’t make any plans to pay off their debt, money that was supposed to be given to a beneficiary may have to be used to settle this debt first. But the beneficiary doesn’t have to worry about inheriting the debt or taking on any future financial obligation.

A comprehensive estate plan

It is important to have an estate plan that addresses both assets and debts, and planning in advance can help this go smoothly for the family. Those drafting estate plans need to know about all of the steps they have to take and the legal tools at their disposal.

How can an estate plan help people prepare for cognitive decline?

2024-10-11T20:30:41Z

As people age, preparing for the future becomes crucial. Cognitive decline could affect their ability to make decisions and manage our affairs. Thankfully, estate planning can help people prepare for cognitive decline, ensuring that both they and their loved ones have the support they need.

What is cognitive decline?

Later in life, people often experience gradual loss of cognitive abilities like memory, thinking, and reasoning skills. Conditions like Alzheimer's disease and other forms of dementia are common causes of cognitive decline in older adults. Studies have shown that this decline can begin fairly early. In fact, after age 60, the ability to make financial decisions decreases around 2 percent every year. This makes it especially important for aging people to think ahead when creating their estate plan.

How can you use estate planning tools to prepare for cognitive decline?

Cognitive decline can impair a person’s ability to manage finances, make medical decisions and understand the consequences of legal choices. Creating an estate plan can be a beneficial way to prepare for potential future decline. Some of the tools that can protect you and your loved ones include:

Wills and trusts: These documents help you control the distribution of your assets. By setting up a will or a trust, you can ensure that your property is passed on according to your wishes, potentially reducing family conflict and legal complications that could arise if cognitive decline impairs your decision-making capabilities later on.
Powers of attorney: This document allows you to appoint someone you trust to manage your financial affairs or make medical decisions if you cannot do so yourself.
Advance healthcare directives: This document outlines what kind of medical treatment you prefer to receive if you become unable to make decisions for yourself.

Estate planning while still in good health and clear mind can reduce the burden of difficult decisions on your family and provide you with peace of mind knowing that your affairs are in order. Proper estate planning can also help protect your assets during your life and secure financial stability for your dependents. Estate planning is not just about managing assets. It is a crucial part of caring for your future self and those you love.

How political polarization is affecting estate planning

2024-10-07T17:01:03Z

Politics always could arouse heated discussions, but the current political climate in the U.S. is seeing things taken to even more extreme levels. The polarization of politics, in part aided by the influence of social media, has led to a situation where many families and friends fall out over it. With elections looming, this is only likely to get worse. This is leading to a situation where some people are deciding to alter their estate plan to remove a beneficiary who they have discovered holds opposing political views to them. Should you cut someone out of your estate plan because of their politics? Only you can decide if removing someone from your estate plan over political disagreements is correct. However, if you are considering it, the following tips could help:

Don’t do anything just yet

Wait a while. Don’t go running to make changes just because you had a big argument over politics. You never know, the person might call you up in a week or a month telling you they have reflected on the discussion and are coming around to some of the points you made. Or, as with many arguments, it might soon diminish in importance for you.

Think about whether their opinions really matter

No two people will agree on everything. Perhaps you could just agree to avoid the subject in the future and focus on what you value about each other. You’ve probably worked and hung out with plenty of people who had wildly opposing political views in the past without a problem.

Do it properly if you wish to proceed

If, after consideration, you wish to go ahead and remove a person from your estate plan, then be sure to get legal guidance to do so in a way that reduces the chance they can challenge it when you are gone.