Differences in Advance Directive Laws Highlighted by Recent Texas Case

Jan 27, 2014  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, parents with young children

A Texas case involving a pregnant woman is drawing renewed attention to state laws about advance directives, incapacitated people, pregnancy, and the ability to make medical choices.

In late 2013, Dallas-Fort Worth area paramedic Eric Munoz found his pregnant wife unresponsive on the floor of their home. After transporting her to the hospital, Munoz discovered that his wife, Marlise, had likely suffered a pulmonary embolism that had left her incapacitated. The embolism had deprived her brain of oxygen, and left her effectively brain-dead. The doctor said they didn’t know if any damage had been done to fetus she was carrying.

Mr. and Mrs. Munoz were both experienced paramedics. They had previously discussed the question of whether they would want to receive life-sustaining treatment if they were in an unrecoverable medical condition. Eric Munoz said that his wife, even though she had not completed an advanced medical directive, would not have wanted to be kept alive artificially. He told her doctors this, but they were unable to comply with his directions because Texas state law prevents it.

Medical Directives and Pregnancy

Several states, including Texas and Washington, allow people to create advance medical directives, but do not allow the choices they make in those directives to apply during pregnancy. In the Munoz case, since Marlise is pregnant, her doctors cannot withdraw any life-sustaining treatment. Though Texas law allows people to create advance medical directives, the law specifically states that pregnant women cannot refuse to receive such treatments.

Washington Directives and Pregnancy

Like Texas, the state of Washington also imposes restrictions on advance directives made by pregnant women. The law effectively states that a woman who has created a living will or other advance medical directive cannot use that directive when she is pregnant. So, should a pregnant woman become incapacitated and have a directive that states she does not wish to receive life-sustaining treatment, her doctors are prevented from following those wishes.

Medical Choices

In the Munoz case, since Marlise did not have a directive, her husband became the person who would be able to make medical decisions on her behalf when she is incapacitated. If a similar case were to arise in the state of Washington, the same thing would likely occur. In other words, a husband of an incapacitated pregnant woman in the state of Washington could not direct her doctors to remove life-sustaining treatment even if he was sure that she would not have wanted to receive it.

The Munoz case shines a new spotlight on the important issue of medical directives. Because state laws are so different, everyone who wants to create an advance directive should always talk to an attorney in their area.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Marriage, Divorce, Estate Plans, and Prenuptial Agreements

Oct 17, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Financial Planning, parents with young children, Retirement Planning

The numbers behind divorce statistics, though improving over the last 10 years or so, paint a somewhat bleak picture. Between about 45 and 50 percent of first marriages end in divorce, while second and subsequent marriages survive less than 40 percent of the time. With all these marriages breaking up, anyone creating an estate plan should give serious thought to including a premarital agreement, also known as a prenuptial agreement or ante-nuptial agreement, in your efforts. Here’s why:

Reason 1: You Want to clearly divide your property in order to create an estate plan.

With a prenuptial agreement, both spouses can specify what property they will each receive in the event of a divorce. This will greatly aid your ability to create a retirement or estate plan that will not have to be significantly changed should you divorce. Through the prenup you can direct who will keep property the couple currently owns, property the couple acquires during the marriage, as well as property either of you owned before getting married.

Reason 2: You want to ensure your children receive a good inheritance even if you don’t divorce.

Let’s be optimistic and assume your marriage will last. Even if you never get divorced, a prenuptial agreement can ensure you have enough property to leave your children a healthy inheritance. If, for example, you or your spouse have children from previous marriages, both of you can choose to waive your right to receive a spousal inheritance. Spousal inheritance laws exist in all states and give spouses the right to inherit a share of a deceased spouse’s estate. Depending on the state in which you live, this can be as much as 50 percent. Through a prenup you can choose to waive this right so each of you can leave your property to your children or to those you select.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Estate Planning Issues with Pregnancy

Oct 16, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, parents with young children

Becoming pregnant is a major life event, and one which should prompt you to take appropriate legal measures to protect both yourself and your new child. Whether you’ve already created an estate plan or have yet to do so, pregnancy provides you a good opportunity either to review your plan or create one. Here are two common issues pregnant women face when it comes to estate planning and their pregnancy.

Issue 1: Living Wills and Medical Directives

Through living wills and health care powers of attorney, a pregnant women can state what her medical choices are in the event she is incapacitated. She can also delegate someone else to make those decisions when she is incapacitated. However, many states have specific limitations when it comes to advance medical directives and pregnant women. If you’ve already created an advance directive before you became pregnant, you should contact your attorney and ask how the pregnancy will affect these documents.

Issue 2: Trusts and Guardians

At some point in your pregnancy you will probably think about what might happen to your child if you should die. As a parent you can create an estate plan which selects who will take over the duties of raising your child if you should die. This person, known as a guardian, can be anyone you like as long as he or she is legally capable adult. However, you will also want to provide for the child’s financial means. You can do this by creating a trust, though you need to speak to your attorney to determine what type of trust best suits your needs.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

3 Issues to Consider When Selecting a Guardian

Sep 07, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: parents with young children

Parents with young children always need to have an estate plan which names a guardian who can care for the child should an emergency or tragedy occur. Your choice of guardian is something that only you can make, and it is something that you should take some time to consider before making your final selection. Here are three issues you’ll need to consider when making your choice.

Issue 1. Abilities and Stability

A good guardian needs to be able to provide a safe and loving household. If the guardian is financially unstable there are significant questions that can arise about the Guardian’s ability to provide such a home. However, this doesn’t mean that your choice and guardian should be the person whom you know who has the most money. As long as the guardian can provide a stable and loving environment, you should at least consider that person.

Issue 2. Values and Character

When you select a guardian it will be up to a court to determine if your choice is appropriate. The court will look at whether the person is capable of providing an environment in which the child or children will be properly cared for. The person you choose does not need to already be a parent, but he or she must be seen by the court as capable of raising a child.

Issue 3. Age

Your guardian needs to be young enough to care for the child for as long as necessary. He or she must also be well suited to deal with the child. This means that a person who is good with young children but not so great with teenagers might not be the best choice to care for a young child, because that child will eventually grow up and will still need the guardian’s guidance.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

3 Reasons Young Parents Need An Estate Plan

May 11, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, Incapacity Planning, parents with young children

Reason 1: Your children need to be taken care of.

If you are a parent with young children, you’ve probably wondered what would happen to your children should something happen to you. The fact is, if you have not created an estate plan, your children may end up in the care of someone you would not approve. However, you can select who will replace you in the parental role by creating legal documents to name a guardian in the event of your death or incapacity. If you do not take this step, the decision about who will take care of your children will be up to a court.

Reason 2: You need someone to manage your finances.

What happens if you are involved in a car accident and suffer injuries that leave you permanently incapacitated? Who will take care of your financial obligations in this situation? Similar to the naming of a guardian for your children, if you have not chosen someone to step in and take care of your finances a court will have to do it for you. On the other hand, by developing an estate plan and filling out a few important documents, you can choose who will manage your finances in the event you are no longer able to.

Reason 3: You have specific medical choices.

Young people often do not create estate plans for the simple reason that they do not believe they will ever need them. While it is true that it is very unlikely you will ever be seriously injured, in the event you are, you have the ability to tell your doctors what kind of medical care you want to receive even if you’re no longer able to communicate. You can do this by creating an advance medical directive that states your choices in detail.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Who should be Guardians of My Young Children?

Nov 22, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: parents with young children

Choosing guardians for your young children is, likely, difficult to think about.  We all want to raise our own children.  However, appointing guardians will give you peace of mind and keep you in control.  If you don’t make the choice, and the worst happens, the court will choose who raises your children; and, it may not be who you’d choose.

You appoint guardians in your will.  You need a guardian of your child’s person, meaning someone who will raise your children, making health care, life-style, educational, and general welfare decisions.  In addition, you need guardians of your child’ estate, meaning someone who is in charge of managing and distributing the assets you leave for your child.

The guardian of your child’s person and of your child’s estate can be, but don’t have to be, the same person.  If you have trust-based planning, which is preferred if you have young children, the guardian of the estate is called a “trustee.”

Be sure to consult with your potential guardians and trustees prior to naming them.  It’s a huge responsibility and, while they may care about your children, raising them or managing assets may feel like way too much.  Better to know now, rather than later, when you need them.

In addition, because life changes as it unfolds, appoint contingent guardians and trustees, in case your primary appointees are unable or unwilling to serve.

When making the guardian decision, choose guardians who you trust fully, know and love your children; have more room at their “table” (and in their lives); have similar religious, child-rearing, moral, corporal punishment beliefs; can handle your child’s special needs; and, anything else you think is important.

The trustee, who manages the child’s money, should be able to communicate effectively with the guardians, good with money, a good record keeper, good with finances, and willing to obtain and follow professional guidance.

To name guardians and trustees for your children, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Should I Agree to Serve as a Guardian?

Oct 11, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: parents with young children

Serving as a guardian is a serious responsibility.  A close friend or family member may discuss this topic with you because they feel that you would be a great fit as a guardian for his or her children.  It’s important to carefully think through this decision before agreeing to serve; make sure that you’re ready for the duties that go along with the job.  If you have any questions, or if you’d like to discuss your potential role as a guardian, contact an estate planning attorney.

 

As a guardian, you will be responsible for the well-being of someone else’s children.  Carefully consider all of the duties that will be expected of you as well as the impact that serving as a guardian will have on your personal and professional life.  If you’re having a difficult time making a decision, consider the following:

 

  • Do you have enough time to commit to this responsibility?
  • Do you already have full-time responsibilities that go along with caring for your own children?  Can you fit more at the table?
  • How will you serving as a guardian impact your marriage and entire family?
  • Will you be able to raise the children in a similar manner as they’re used to?
  • Are you willing and capable of serving as a guardian?
  • Do the children feel comfortable around you?  Do you like the child?
  • Are you healthy enough to serve as guardian?
  • Are you comfortable with the child’s extended family?

Make sure that you think about how you role as a guardian will impact your life as well as those around you.  It’s okay to say, “No, thank you.”  It’s better to say “no” now then later when tragedy strikes.

 

If you have any questions about serving as a guardian, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Emergency Planning in Place

Sep 27, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Incapacity Planning, Insurance, parents with young children

You never know when a medical disaster may strike, so you need to have emergency planning in place.  Take a look at the following information, to learn more.  If you have any questions, or if you’d like to discuss your individual emergency planning needs, contact an estate planning attorney.

 

  • Make sure all of your estate planning documents and other important documents are kept together.  This will help to keep you from losing important documents and will make it easier for you or your loved ones to get the files that are needed during an emergency.
  • Create an emergency fund.  You never know when you may need a large amount of money during an emergency.  If you have a fund in place, you will have access to the money that is needed and not fall prey to unscrupulous credit card companies.  It’s prudent to have enough money for up to 3-6 months of expenses in the event of job loss, illness, or another emergency.
  • Purchase the insurance that you need.  You may have considered life insurance; also, consider other insurance policies as well.  This may include disability, personal catastrophic (i.e. umbrella), auto, flood, earthquake, renter, and homeowner insurances.  This will allow you to be prepared during a natural disaster.
  • Have an emergency plan in place.  Talk to your family members, including your children, to make sure that they know what to do during an emergency (i.e. meet at neighbor’s house in case of fire, call estate planning attorney in case of disability or death, call Uncle Joe and Aunt Marie is anything happens to Mommy, etc.)

 

Protect yourself and your family by Taking time to consider your emergency planning needs.  If you’d like assistance with your emergency planning affairs, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Who Can Be My Beneficiary?

Jun 13, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, parents with young children, Pet Planning

If you’re like most people, you don’t give your will, trust, life insurance, or retirement account beneficiaries much thought.  You filled out the paperwork, signed the forms, and never looked back.  As you should update your estate plan every three to five years, you should review (and update as appropriate) your beneficiary designations as well.  You should review beneficiary designations to ensure that your named beneficiaries meet your current estate planning intent.  It’s also important that your beneficiaries can legally inherit.

It may sound odd to hear that some beneficiaries can’t legally inherit.  The two most commonly named beneficiaries who can’t legally inherit are minor children and pets.

The solution is simple:  Name a trust to benefit your beloved minor children and pets.

If you name a minor child or a pet as a beneficiary, the court will disallow the inheritance as provided.

  • The court will interfere and a guardian will have to be appointed to manage the assets until the child attains the age of 18.  This means that the court will continue to supervise the guardianship which is a hassle and costs money.  And, the child will receive all of the assets outright at age 18.  This may not be a good plan.

 

  • If you name a pet as a beneficiary, the court will disallow the gift and the assets will go to the remainder beneficiary of your estate.

Your estate planning attorney can help you choose the best beneficiaries to meet your goals.  If you wish to benefit a minor child or pet, the attorney will help you to make provisions for trusts for them (likely in your own revocable living trust.)

Your goals can be carried out, they just need to be carried out legally in order to work.

Be sure to review your beneficiary designations when you update your estate plan, every three to five years.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Taking Advantage of a Washington College Saving Plan

Jun 11, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: College Planning, Estate Planning, Financial Planning, parents with young children

Many Washington parents find it beneficial to invest in a college saving plan as early as possible.  If you haven’t taken the time to begin planning for your child’s college education, now is a good time to do so.  Luckily, the state of Washington makes it easy with their college savings plan.  Take a look at some of the information below to learn more.  If you have any questions about starting a college savings plan, meet with an estate planning attorney to discuss your options.

The state of Washington offers a 529 college plan called Guaranteed Education Tuition or GET.  This plan has been in existence since 1998 and has offered a way for many Washington families to pay for the costs of college.

How does the GET plan work?

With this plan, you’re able to purchase units that help to pay for the costs of a college education.  A unit cost is determined each year, and may change.  Each unit is worth 1% of the resident tuition at the highest priced Washington public state school, but credits can be used at any eligible institution in the US.

There are several payment plans available that help to make it easier to save.  This includes purchasing units whenever you have the money to do so and also a custom monthly plan that allows you to purchase units on a monthly basis for as long as needed.

You’re able to purchase a maximum of 500 units, or $58,500.

What are some of the benefits of the GET plan?

This plan has many benefits.  For one, you’re able to save for college at your own pace.

Another benefit is the fact that the state of Washington guarantees that your account will increase in value when the costs of tuition also increase.  You won’t have to worry about losing money in this investment.

The money that you invest will grow tax-free and you also won’t have to pay taxes on your qualifying college education expense withdrawals.

This plan is a great way to get started with your college savings goals.  Help your child by saving for the costs of education!  If you have any questions about your college savings plan needs, consult with a qualified estate planning attorney.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.