Estate Plan Issues (2 of 5) - Does Your Living Will Really Protect You and Your Family?

One of the most important estate planning documents is your Living Will.

This important document directs what medical treatment and medications you should receive when you become disabled and cannot express your own wishes.

I say "when you become disabled" rather than "if you become disabled" because every one of us will be disabled at some point in our lives. It may be the last ten minutes of our life or the last ten years. Also we may be disabled for a day or a week and then recover our ability to make decisions on our own. This is why a Living Will is so important.

In Minnesota, they are sometimes called a "Health Care Directive", a "Power of Attorney for Medical Care", an "Advance Care Declaration" or by several other names.

The focus of a Living Will is that the patient designates another person to make decisions for him or her when the patient is disabled.

Not all Living Wills are created equal. For example, the Federal Health Insurance Portability and Accountability Act (also known as HIPAA) can significantly affect how a hospital or clinic will interpret a person's Living Will. It is important to make sure that yours is in compliance with HIPAA.

Another important thing to do is to make sure that your Living Will is delivered to your doctor or clinic. This carefully drafted document has no effect if it is sitting in a lawyer's office or at home in your desk when it is needed at the hospital. What is more, sometimes people will sign a new make-shift Living Will that they receive at the clinic prior to a medical procedure. Many people do not realize that the make-shift version they sign at the clinic usually invalidates the carefully written one that an attorney wrote with them.

A Living Will can also direct what is to be done with the bodily remains of a person after his or her death. Does the person want cremation or traditional burial? Does the person want to donate their organs to help save other's lives? Are there other ceremonial or particular things which should be done at the funeral? These kinds of questions can all be addressed through a properly written document.

Lastly, there are different laws concerning Living Wills in other states. This means that it is important to have it written in such a way that it is valid in all 50 states. It should have the proper provisions, so that it is valid whether you need a medical treatment here at a clinic in Minnesota, or other states like California or Florida. It is also helpful to the estate planning attorney to have access to the Living Will provisions of all 50 states. This way, the client can get the best possible Living Will to meet the family's needs.

When it comes to a Living Will, "one size" does not fit every circumstance. They are not created equal. They serve a vital part in a person's estate plan, and should be crafted carefully to protect you when you become disabled. It is important that these vital decisions are made when you are fully alert and aware of your choices.

Bill Peterson is a Minnesota Estate Planning Attorney with over 40 years of experience as a lawyer. He can help you plan for the future by creating a Minnesota Estate Plan. For more information, please visit http://www.mnestateplan.com/ or call toll free at 1-888-910-5297.

The contents of this article are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.

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Do I Need A Pro Bono Attorney? Do They Really Offer Free Legal Help? How Do I Find A Free Attorney?

It's a fact that the average person will face 4 to 6 legal situations every year. In fact, 50% of all households have a pressing legal situation right now (and the fact that you're reading this probably means you've got a legal situation). Of course, a legal situation is just being in trouble with the law, but rather a legal situation is any situation in which the advice of a competent attorney would be beneficial to your situation. It's also a fact that the national average And while we live in a country founded upon the premise of "Equal Justice Under Law," for most people actually getting the legal help they need is often times a matter of choosing between legal help and eating or having a roof over one's head. The average attorney charges around $300 per hour, usually with a retainer fee, which is an up-front fee of a certain number of hours pre-paid in advance (so 5 hours at $300 per hour would yield a $1,500 retainer fee), with any additional time paid as it accrues. Given this, it's no wonder why most people find it cheaper to just get ripped off rather than go to an attorney! If you are in a situation where you need or may need legal counsel, what options do you have?

Pro Bono: What It Is... And What It Isn't

The term pro bono comes from the Latin pro bono publico, or "for the public good." The concept being that, since many people cannot afford legal help (I've even met lawyers who admitted that they couldn't afford their own law firms rates!), legal help should be given to those who need it most (and are least able to pay for it). Most people are aware of the idea of a pro bono attorney because they've heard of them on television or in the movies. A "free attorney" is a powerful idea, and so the concept sticks in the mind.

In the United States, the American Bar Association (ABA) recommends attorneys give 50 hours of free service per year. However, various state and city regulations can and do amend that, some recommending as few as 20 hours. The biggest point to note is that these are not required of the attorneys, generally; and across the board, most law firms do not come close to their required hours.

The ABA does have a list of pro bono attorney groups and law firms available on their website. Most of those listed, however, are for specific cases or issue types (e.g., for legal issues dealing with the Arts or the Humanities, etc.). If you need an attorney for a personal issue, you may have a hard time finding an attorney in your area who specializes in the field you need and who can accept your case (assuming, of course, that you even qualify). So if you can't find a pro bono attorney, what other options do you have?

Option 1: Legal Aid

Legal Aid is available in some form in all 50 states. It is a pro bono service (i.e., there to serve the public good), but it is not always a free service. Legal Aid attorneys are sometimes public defenders, and often paid for wholly or partially by state or local subsidies. Legal Aid sprung in part out of the necessity of needing to provide legal help for those who could not find a pro-bono attorney. Many attorneys who offer their service through Legal Aid will work on a reduced fee system, and some will work for free. However, income qualifications and issue qualifications must be met, and there is often a waiting list ranging from months to years for certain issues and in certain municipalities.

If Legal Aid isn't an option, there is one other option which most people are unaware of but which can greatly benefit most people.

Option 2: Insurance Type Legal Services

Legal Insurance and insurance type products have been available in the United States for about 40 years, although they are common in some European nations (with as many as 80% of some nations having a plan of this type). Legal insurance and pre-paid legal service plans work much like medical insurance, with a small premium granting access to a range of various legal services, from consultation, letters and phone calls, document review, and representation in court. The benefit of legal insurance plans is that they are very affordable for most budgets, often costing less than the cost of one standard hour of attorney time for an entire years worth of coverage. These plans cannot, however, cover 100% of all legal expenses, so some legal issues might incur additional costs (generally things like bankruptcy, child custody and divorce, as well as criminal charges). Such costs are often defrayed by percentage discounts off of the hourly rate of the attorney or attorneys providing the service.

Justin West has a BA in Philosophy and History, and has put them to use by working in the legal field for 8 years. He's in his early 30s, married with three children, and he runs a website, http://www.legalsolutions911.com/, which has information about legal insurance style plans. He also helps others build legal businesses of their own through his alternate site: http://www.yourbrightestfuture.com/.

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Ten Families That Really Need A Minnesota Trust

Late night talk show host David Letterman gives his Top Ten list every show. I'd like to suggest to you my own Top Ten list, about ten families who need to set up a trust to protect their assets in the case of disability or death of one of their family members. A trust can be a wonderful device for your family even if your family has just one or two of these circumstances.

10. Family number ten is the family that owns real estate in another state. When the family's owner of that property dies, you will usually be looking at a probate proceeding both in that state (such as Florida, Arizona or North Dakota) as well as a probate in Minnesota. A family trust can avoid a probate proceeding in both states.

9. Family number nine are the families who have a family member that is physically or mentally disabled. A trust can provide care for that family member long after Mom or Dad has passed away. What's more, if the disabled person is receiving public assistance, a special needs trust can provide financial help to the disabled person without jeopardizing his or her public assistance benefits.

8. Family number eight is the family that has one or more spouses who are not financially sophisticated. If Dad or Mom was making most of the financial decisions while they are both alive, it's important that the survivor between the two of them will be able to continue to live in the family home in the lifestyle that they are used to. A trust can help make this a reality.

7. Family number seven is the family where a member is not married to his or her significant other. Many people that have experienced a divorce are reluctant to formally tie the knot. If they buy a house, have children or accumulate other assets with their significant other, a trust for them or the family may be a good idea.

6. Family number six is the family with a child or grandchild who can't control his spending. We've all seen a young person (or even an older person) who is always short of money and often engages in unwise spending. Sometimes the spending is on drugs or gambling. A trust can provide what we call "spendthrift" provisions that can help protect the imprudent child from himself and his reckless spending habits.

5. Family number five is the family with a member who is gay or lesbian. The Minnesota Law of wills and intestates is slanted in favor of straight persons. A gay or lesbian person needs a trust and other estate planning to protect himself or herself and their partner that will level the playing field. A trust can help provide disability instructions and inheritance provisions that assure that the planning wishes of the gay person are carried out.

4. Family number four is the family where Mom or Dad might not die at the same time. What this means is that the surviving parent may remarry after the other spouse dies. The new stepfather or stepmother may take the inheritance to which the children of Mom or Dad would otherwise be entitled. A well-drafted trust can deal with this very common situation.

3. Family number three is the family who has assets over $200,000. The size of the estate is not always a guide to whether or not to have a trust. However, when the assets are sizeable, the temptations for even upright or religious families can be intense. Possible financial abuse of the parent or the estate becomes more likely. A good trust will reduce the temptations and provide a sensible roadway for handling the assets. A trust can thus promote family harmony.

2. Family number two is the family where either spouse has children by a prior marriage. Remember Cinderella? Her Father married her stepmother who hated Cinderella. The Grimm Brothers told that tale because from the beginning of time, there has almost always been hostility between children of a first marriage and their stepmother or stepfather. A trust can address these tensions and provide a roadmap that clarifies the inheritance between children and their step-parent.

1. The most common family circumstance is the family that wants to avoid probate proceedings after the death of the parent. Probate can be expensive, stressful and uncertain. What's more, probate proceedings reveal private family information. A trust can avoid probate and all the loss of time, peace of mind, expense and privacy.

There you have the ten families that need a trust. Does one or more of them describe your family's situation?

Bill Peterson is a Minnesota Estate Planning Attorney with over 40 years of experience as a lawyer. He can help you plan for the future by creating a Minnesota Estate Plan. For more information, please visit http://www.mnestateplan.com/ or call toll free at 1-888-910-5297.

The contents of this article are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.

View the original article here