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You'll find here some fundamental information to help answer basic legal questions. It's not uncommon to put off thinking about legal issues, when pressing medical concerns are on the forefront. Even if you're in the early stages of caregiving, you may want to review this section to help prepare yourself for issues you may later need to address. We may never feel truly ready to accept the roles we have to play, but the more prepared we are to understand what has to be done, the more we are able to get through even the more difficult situations.

The following information (generously provided by Robert Friedman of www.Legalsurvival.com) is designed to help you prepare yourself to make informed legal decisions in a timely way.
K.M


Robert Friedman
This information is generously provided

by Robert Friedman of www.Legalsurvival.com.

For over 22 years attorney/author, Robert Friedman, has helped clients minimize estate and income taxes and probate costs and to plan for nursing home care. He advises clients on the benefits of wills, living trusts, powers of attorney, health care proxies, life estates, living wills, gifts and guardianships. He frequently lectures on estate planning and elder law. His Legalsurvival.com website helps caregivers to identify actual or potential legal problems and correct those problems before they become a major crisis. Friedman is a partner in the law firm of Friedman & Ranzenhofer, P.C., which maintains offices in Buffalo, Williamsville, West Seneca, Batavia and Akron, New York. (Tel 1-800-729-4571)

Legalsurvival.com features a quarterly online newsletter, online bookstore, law FAQs, checklists, prepaid legal plans, find a lawyer, attorney marketing services, useful forms, helpful links, and an articles forum. It has extensive information on elder law, estate planning, and health care, as well a full range of other legal issues. The site has been recommended by USA Today, Fortune Magazine, the New York State Bar Association, Smart Computing Magazine (The Best 2,500 Web Sites - 1999 & 2000).


The following information is designed to help you prepare yourself to make informed legal decisions in a timely way.

  1. Health care proxy
  2. Will information sheet
  3. Executor Has Responsibilties
  4. Where There's a Will, There May NOT be a Way
  5. Will Questions
  6. Testamentary Trusts
  7. Start Estate Planning Now
  8. Trustees' Duties
The New York forms below are meant to be a guide to the user. Subsequent statutory changes and court decisions may affect their validity. The user is advised to verify the continued validity of any form in light of any changes in the law and to consult with an attorney.
1. Health Care Proxy



Health Care Proxy

1. I, __________________________________________________________ hereby

appoint______________________________________________________________

____________________________________________________________________
(name, home address and telephone #)

as my health care agent to make any and all health care decisions for me, except to the extent that I state otherwise. This proxy shall take effect when and if I become unable to make my own health care decisions.

2. Optional instructions: I direct my proxy to make health care decisions in accord with my wishes and limitations as stated below, or as he or she otherwise knows. (Attach additional pages if necessary.)

____________________________________________________________________

____________________________________________________________________

____________________________________________________________________

____________________________________________________________________

(Unless your agent knows your wishes about artificial nutrition and hydration [feeding tubes], your agent will not be allowed to make decisions about artificial nutrition and hydration.)

Sign here if your agent knows your wishes. _______________________________

3. Name of substitute or fill-in proxy if the person I appoint is unable or unavailable to act as my health care agent.

____________________________________________________________________

____________________________________________________________________
(name, home address and telephone #)

4. Unless I revoke it, this proxy shall remain in effect indefinitely, or until the date or conditions stated below. This proxy shall expire (specific date or conditions, if desired):

____________________________________________________________________

Signature ___________________________________________________________

Address ____________________________________________________________

Date: ______________________________________________________________

Statement by WitnessI declare that the person who signed this document is personally known to me and acting of his or her own free will. He or she signed (or asked another to sign for him or her) this document in my presence.

Witness 1 __________________________________________________________

Address ____________________________________________________________

Witness 2 __________________________________________________________

Address ____________________________________________________________

2. Will Information Sheet



INFORMATION FOR WILLS


Your appointment is scheduled on ____/____/ 01_   at_____a.m./p.m. at our Akron/Batavia/ Clarence/West Seneca/Buffalo officewith Robert Friedman/Elizabeth M. DiPirro/Michael H. Ranzenhofer .


  1. Name:__________________________________________________________

    Spouse Name:___________________________________________________

    Street Address:__________________________________________________

    City, County, State & Zip Code:_____________________________________

    Home Phone:___________________ Business Phone:____________________

    Fax: _________________

    DOB:__________________ Social Security Number:_____________________

    Occupation/Employer:_____________________________________________

    Spouse's Occupation/Employer:_____________________________________

    Spouse's DOB:___________________________________________________

    Spouse's Social Security Number: ___________________________________

    Citizenship:________________ Referred By:___________________________

  2. All relatives who would share in your property if you had no Will (e.g. children, parents or siblings):

    Name                         Address               Date of Birth              Relationship

    ________________________________________________________________

    ________________________________________________________________

    ________________________________________________________________

    ________________________________________________________________

    Any prior marriages for you or your spouse?_____________________________

  3. Names of step-children:_____________________________________________
  4. Do you have a safe deposit box?_______ If so, where?___________________
  5. Do you have a:   Living Will?_____________ Health Care Proxy?____________

    Power of Attorney?_____________ Living Trust?________________________

  6. Which of the above items would you like us to prepare?__________________
  7. Date and location of old Will:________________________________________
  8. Who do you want to act as Guardian or Trustee of your children?

    Name/Address/Relationship:_________________________________________

  9. Who do you want to act as Executor and Alternate Executor?

    Name/Address/Relationship:_________________________________________

  10. List all life insurance policies:

    Company            Type           FaceValue/Cash Value          Beneficiary 1st & 2nd

    ________________________________________________________________

    ________________________________________________________________

    ________________________________________________________________

  11. List bank accounts, CDs and money market funds (individual and joint):

    Bank/Institution          Type of Account         Approx. Bal.         Name of Owners

    ________________________________________________________________

    ________________________________________________________________

  12. List all real estate (individual and joint):

    Brief Description            Value           Mortgage Balance           Name of Owners

    ________________________________________________________________

    ________________________________________________________________

  13. List all retirement plans, IRAs, 401-Ks, etc.:

    ________________________________________________________________

    ________________________________________________________________

  14. Stocks, bonds, mutual funds and annuities (individual and joint):

    No. of Shares       Class               Company           Value           Name of Owners

    ________________________________________________________________

    ________________________________________________________________

  15. List any other property you own or in which you have an interest, including business interests, notes or mortgages owed to you, autos, boats, valuable jewelry, art work, etc.

    ________________________________________________________________

  16. Do you reasonably expect to inherit any property or receive any substantial gifts or powers of appointment?________________. If so, explain briefly:_______________

    ________________________________________________________________

  17. Would you like us to hold your original will in safekeeping?________________
  18. What disposition do you wish to make of your property?

    ________________________________________________________________



3. Executor Has Responsibilities


QUESTION: My aunt has asked me if she can name me as the executor in her will. Before I agree to be executor, I would like to know what my responsibilities will be.

ANSWER: Generally speaking, the executor's responsibilities include the following:

  1. Meeting with the funeral director, cemetery representative and clergy to make burial and funeral arrangements.
  2. Collection of the following documents in order to establish rights for insurance, pensions, social security and ownership: will, birth and marriage certificates, social security number, citizenship papers, insurance policies (life, health, accident and property), bank books and statements, deeds, leases, car title/registration, income tax returns, veterans discharge certificates, disability claims, unpaid bills, property tax bills and credit card information.
  3. Notification of the post office, relatives, friends, employer, insurance agents (life, health and accident), religious fraternal, civic and veterans organizations, unions, newspapers regarding notices, attorney and accountant.
  4. Collection, conservation and appraisals of the personal property of the estate.
  5. Securing the residence and review of insurance coverage.
  6. Payment of all valid debts including funeral costs, fees and expenses incurred in administration, estate taxes, income and other taxes, medical bills and utilities.
  7. Applying for social security benefits and employer identification number.
  8. Distribution of the money and property in accordance with the will.
4. Where There's a Will, There May NOT be a Way


Q. My late father left his home to me in his will. However, the attorney for my father's estate said my step-mother has rights to the house. How can this be possible?

A. A common mistake in estate planning is the failure to realize that a will does not control the disposition of real estate under the following circumstances:

  1. Right of Election. Regardless of what your father's will stated, your step-mother has the right to file a "right of election" as surviving spouse. She is entitled to the greater of $50,000.00 or one-third of your father's estate and any transfers he made within one year prior to death. However, she would have waived her right-of-election only if she had signed a valid prenuptial or antenuptial agreement; she had abandoned your father or failed to support him.
  2. Life Estate. If your father deeded the house to your step-mother and retained life use, the home automatically went to her upon his death.
  3. Tenants-by-the-Entirety. If the home was owned by your father and step-mother as tenants-by-the-entirety, it automatically passed to her upon his death. However, if the home was owned as tenants in common, his share of the house would go through the estate in accordance with his will or if he had no will, to his surviving heirs.
  4. Living Trust. If the real estate was owned in the name of a living trust, it would be disposed of pursuant to the trust agreement.

    Contact an attorney to review the facts and advise you of your rights.

5. Will Questions


Q. Is owning my home jointly with my wife a substitute for having a will?

A. No. If you and your spouse bought your home together, she automatically gets ownership of it upon your death. But what if you both died together: The home that you worked so hard for might be sold and the proceeds controlled by a stranger until your children reach the age of 18, at which time they could spend it as they wish. A person's major asset is usually his home. With inflation rapidly driving up home values and mortgage insurance covering the mortgage, many homeowners have a much larger estate than they may think.<

Q. What happens if I die without a will?

A. Dying without a will may result in your estate going to someone you didn't intend to receive it, unnecessary estate taxes, delays in settling the estate, added estate expenses and leaving your estate assets without proper management and protection. If you die without a will, New York State law makes the decision as to the distribution of your property. If you die leaving a spouse and one child, your spouse receives $50,000.00 in money or personal property and one-half of the estate and your child receives the remaining one-half. If your spouse and two or more children survive, your spouse receives $50,000.00 and one-third of the estate.

Q. What does a will do?

A. A properly drawn will is the only way to be sure that your property at your death goes where you want it to go. By executing a will you may dispose of real and personal property at your death in the proportions and to the persons you wish; appoint competent and trustworthy executors, trustees and children's guardians; and create trusts. If you will be leaving large sums of money to your minor children, the will should provide for a trust with a trustee, such as a bank, which can provide proper money management until your child reaches the age of 18 or older. Making a will is a privilege and if it is not executed in strict compliance with state law, it may be declared to be invalid and your property will pass as if you had no will

Q. Can I disinherit my children?

A. Yes, you can disinherit your children but you cannot disinherit your spouse. Your spouse has a right to the greater of $50,000.00 or one-third of your estate.

Q. When should I update my will?

A. You should review your will with your attorney every few years or when there is: a birth or adoption; a change of residence; the executor, guardian or trustee named in your will becomes unavailable; you or your beneficiaries' financial worth increases dramatically; a change in your marital status or that of a family member; a change in the status of your business, a change in the tax laws; or the death or the disability of anyone named in the will.

6. Testamentary Trusts


Would you like your children's inheritance managed for them until they reach the age of 25 or even 35?

The answer is not to leave your estate directly to your children or to a guardian but to provide in your will for a testamentary trust to be managed by a bank or trusted friend. If your estate is left to a guardian for your child, the guardian must turn the property over to the child when he or she reaches the age of 18 to do as he or she wishes. When drafting a testamentary trust in your will, consider the following situations of your children and grandchildren: 1) their ages; 2) their educational needs - the costs of undergraduate, graduate and technical school; 3) the best age at which to distribute trust income and principal in a lump sum or installments; 4) their ability to manage money (disabilities, alcoholism and gambling problems); 5) their financial needs and earning capabilities; 6) if disabled, the effect distributions may have on their eligibility for disability benefits or medicaid; and 7) if divorced, on the verge of bankruptcy or being sued, the need to safeguard their assets from creditors and ex- spouses.

The trust can provide for either specific monthly payments; payments in the discretion of the trustee for the children's support, medical expenses and education; partial distributions of principal at certain ages, e.g. one-third at 25 years of age, one- third at 35 years of age and one-third at 45 years of age.

You should discuss the above with your attorney before executing a will.

California enacts landmark competency law.
California became the first state to enact legislation that includes specific medical factors for judges to consider in determining a person's competency to make decisions about medical treatment, marriages or contracts. The law, effective January 1, 1996, requires judges to determine capacity based on: (a) alertness and attention, including orientation to time and place; (b) ability to process information, including remembering and recognizing others; (c) thought processes, including whether they experience hallucinations or delusions; and (d) ability to control mood. (# 10306)

7. Start Estate Planning Now


Estate planning is not just for the old and wealthy. Even young, single people should start legal, financial and medical planning for death or disability.

You should discuss the following legal tools with your attorney:

  1. Durable Powers of Attorney. By signing a power of attorney, you can authorize another person to act on your behalf to perform any number of specified onto such as: real estate transactions, banking, operation of a business, insurance or lawsuits. There are two types of durable powers of attorney:* An "immediate power of attorney" which is not affected by your subsequent disability or incapacity; and * A "springing power of attorney" which does not go into effect until you become disabled or incapacitated.
  2. Trusts are an agreement under which a person or institution (trustee) holds legal title to real or personal property for the benefit of another (beneficiary). The person who creates the trust is known as the grantor.

    The trust agreement sets forth the rights and responsibilities of all parties involved. Living trusts, also known as inter vivos trusts, have numerous advantages including proper management of assets; avoidance of probate; eliminating the need for guardianships, life estates or joint ownership; and assuring privacy.

  3. The Living Will is a declaration which instructs your family and your doctor about life-prolonging medical procedures when your condition is terminal and there is no chance of recovery. Under constitutional and common law, you have the right to refuse medical treatment. A living will gives you the opportunity to express your wishes in advance, since you may not be able to make them known when it becomes necessary to do so. Life prolonging procedures include hooking you up to a machine when you cannot breathe on your own, performing operations or prescribing antibiotics that cannot realistically increase your chance of recovery, starting your heart mechanically when it has stopped beating or feeding you by tube.
  4. Health Care Proxies recognize your right to appoint a health care agent that you trust to decide about medical treatment in the event that you become unable to decide personally. Unless you specify otherwise, the agent will have the same authority that you would decide about treatment. The authority encompasses the right to forego treatment or to consent for needed treatment. The agent's authority begins only when a physician determines that you have lost the capacity to decide about treatment.
  5. Wills. By executing a will, you may dispose of property at your death in the proportions and to the persons you wish, appoint competent and trustworthy executors, trustees and children's guardians and create testamentary trusts.
  6. Life Estates should be explored
  7. Joint Ownership should also be considered.
  8. Gifts can also be a significant element of one's estate-planning strategy.
8. Trustees' Duties


The responsibilities of a trustee are:
  1. Read a copy of the trust agreement, keep it with the trust records and review it annually.
  2. Deposit checks or bank drafts funding the trust. Attach a photocopy of same to Schedule "A" of the trust agreement.
  3. Obtain a federal employer identification number for the trust.
  4. Consult with your financial advisor as to the types of accounts (brokerage firm, management account, bank account) to open and deposit funds. Under the Prudent Investor Rule, trustees must formulate an overall investment strategy that takes into account general economic conditions, inflation, the beneficiary's needs, the duration of the trust and the tax impact. They usually must diversify their investments and can delegate their duties to outside experts.
  5. Annual fiduciary tax returns (IRS form 1041) and equivalent state forms will be due on or about April 15th of the year following the opening of the trust and each subsequent year thereafter. Consult with your attorney or accountant for further information.
  6. Consider change of trustees when there is a change of circumstances.
  7. Review requirements for closing the trust with an attorney. (i.e. releases and final tax returns.) For further information, order the "Living Trusts" pamphlet from the Legalsurvival.com bookstore.

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© Copyright 1996-2001 by Legal Survival, LLC
Sponsored by: Friedman & Ranzenhofer, P.C. Buffalo, New York

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