Symposium for Patients & Caregivers

Benefits of an Estate Plan

Robert W. Hobkirk, Esq. of Loose, Brown & Associates

An Estate Plan Consists of the Following Types of Documents

• Last Will & Testament• Financial Power of Attorney• Healthcare Power of Attorney• Mental Healthcare Power of Attorney• Living Will• Trust

Financial Power of Attorney• A document by which one person appoints another person to

make financial decisions for him if he/she is subsequently disabled or incapacitated.

• Can nominate a Conservator or Guardian for consideration by the court if protective proceedings for the Principal’s estate are commenced.

• Avoids costly Guardianship and Conservatorship proceedings if the Principal becomes incapacitated

• Springing vs. Good at Any Time

Healthcare and Mental Healthcare Powers of Attorney

• Healthcare Power of Attorney: A health care power of attorney is a written designation of an agent to make health care decisions.

• In this document, a person can: • choose to donate any needed organs or parts or only specified

parts or organs; • choose to donate organs for any legally authorized purpose or

for transplant or therapeutic purposes only; and• designate a specific individual or institution to receive his

tissues or organs or authorize his representative to make that decision.

• Mental Healthcare Power of Attorney: The agent may make decisions about the mental health treatment on behalf of the principal if the principal is found incapable.

Living Will• A living will is a written statement composed by a person and intended

to guide or control the health care treatment decisions that can be made on her behalf.

• Includes the Following Directions:• Do you want life sustaining Treatment withheld;• Do you want comfort care;• Do you want the use of all medical treatment necessary until the

doctors reasonably conclude that your condition is terminal, or is irreversible and incur-able or you are in a persistent vegetative state;

• Do you want your life to be prolonged to the greatest extent possible

Last Will and Testament

• Do you want your life to be prolonged to the greatest extent possible

• A testator may nominate a personal representative in his will. A personal representative administers the will following the testator’s death.

• A testator can also nominate a guardian for minor children in a validly executed will.

Living Trust

• A legal entity that is created and holds title to assets during the life of the person who places assets inside the trust.

• Parties to a Trust • Settlor - the person who creates the trust• Trustee - the person who handles the administration of the trust• Surviving Trustee - the person who continues to manage the trust

after one of the original trustees has died• Successor Trustee - a person or entity that is named to succeed the

surviving trustee upon death or incompetence.

Living Trust Continued…

• The trust agreement: Instructs the trustee how to manage, administer, and dispose of the assets which are transferred to the trust.

• Powers of a Trustee: To perform, without court authorization, every act which a prudent person dealing with the property of another would perform for the purposes of the trust.

• Duties of a Trustee: The general duty of a trustee is to administer the trust expeditiously for the benefit of the beneficiaries.

• Settling a Trust after Death: Administering and managing the trust according to the terms of the document.

Supplemental or Special Needs Trusts

• "Special needs" is a term to describe any trust intended to provide benefits without causing the beneficiary to lose public benefits he or she is entitled to receive

• “Supplemental needs” is interchangeable with the term “Special needs”

• Typically intended to permit Supplemental Security Income (SSI) and Medicaid recipients to receive additional services or goods without disqualifying the recipient from said government benefits.

Types of Supplemental Needs Trusts

• Self-settled• Often established by individuals who have received a personal

injury settlement or inheritance

• Allows one to place assets into a special needs trust to regain or continue eligibility for government benefits

• Typically established by parents, guardians or the court

• Pay-back Provision: may require a provision repaying state Medicaid agencies (like ALTCS or AHCCCS, in Arizona) for any benefits, payable at the death of the beneficiary

Types of Supplemental Needs Trusts

• Third-party special needs trust

• Can be established by one person for the benefit of another.

• The person establishing the trust, called the settlor (or grantor or, sometimes, trustor) chooses to make some of his or her own assets available for the benefit of the disabled beneficiary (typically established by parents for their developmentally disabled or mentally ill children).

• The trust terms should not create any entitlement to either income or principal

Benefits of a Supplemental Needs Trust

• The trust can provide for physical therapy, medical treatment, education, entertainment, travel, companionship, clothing, furniture and furnishings (such as a television or computer), and some utilities.

• The Trust should not provide for distributions of cash or provide for food and shelter

• Allows the Trustee to purchase items and/or services for the beneficiary without causing the trust assets to be considered assets of the beneficiary

Guardianship and Conservatorship Proceedings

• A guardian and/or conservator can be appointed for a person who suffers from mental illness, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or confinement, disappearance or detention by a foreign power.

• The court must specifically find that the ward is unable to make or communicate responsible decisions and is therefore unable to provide food clothing and shelter without assistance, before appointing a guardian.

• Appointment of a conservator can be made when the court finds that there are assets that will be wasted or dissipated without proper management, or that provision must be made for the care of the ward or his dependents.

Guardianship

• A guardian is responsible for the life decisions that must be made for the ward, including authorization or withholding of medical care, living arrangements, etc.

• Typically does not handle income or property of the ward, however, some payments may be made to a guardian for the benefit of his ward such as Social Security, SSI or other recurring payments.

Conservatorship

• A conservator is appointed to handle the financial affairs of a person deemed to be in need of protection.

• Limited to financial matters (does not include the powers given by a guardian).

• The conservator holds title to the ward's property in trust for the ward.

• They must fully account annually to the Court .

• Must post a bond.

Appointment Process

• Must file a petition for guardianship or conservatorship with the Court and serve same upon the proposed ward.

• Notice must be given to other persons (spouses, adult children and preexisting guardians and conservators of the ward).

• The ward must be represented by counsel, either of his own choice or appointed by the Court.

• A visitor and physician must be appointed and report to the Court.

• The hearing itself must be public and the proposed ward permitted to attend and be heard.

• The ward may ask for a jury to decide rather than a judge

A Special Thanks to our Sponsors• Aesculap

• Barrow Neurological Institute @ St. Joseph’s Hospital

• Barrow Neurological Institute @ Phoenix Children’s Hospital

• Great Council for the Improved

• Hope for Hypothalamic Hamartoma Foundation

• KARL STORZ Endoskope