The article by Susan Brink details the final days of Bunny Olenick, 87-year-old mother and grandmother, whose massive stroke in December of 2008 threw her family into a state of confusion… in spite of the fact that she had done all the right things.

“Olenick had done all she could to give her family instructions about her death. She had spoken to her sons about her wishes, filled out an advance directive, a living will, and had named her sons as health care proxies — all legally accepted documents and procedures designed to insure that a person’s end-of-life wishes are spelled out and honored. Yet even they weren’t prepared for the many difficult questions they faced.”

The questions they faced were a surprising mixture of technical and metaphysical: Did “life-support” include temporary nasogastric tubes for nutrition?—How exactly does one define “Quality of Life?”—Was a short-term oxygen mask okay, even though a respirator was against her wishes?—And Bunny’s own heart-breaking question upon waking up in a hospital bed, “Why am I still here?”

Bunny’s story illustrates for all of us the importance not only of creating the appropriate legal documents, but also creating the time and space to talk to our loved ones about these difficult situations. Our firm can help you to create an estate plan that will protect your loved ones and guide your agents in your wishes… but the documents are only a small part of the process. Talk to your family about the process of creating your estate plan: the how and why of your important decisions. Knowing why you made the choices you did will help your family accept your decisions and follow your wishes when the difficult metaphysical questions come up.

Part of the reason may certainly be fear and discomfort. Nobody likes to think about their own death, let alone talk about it with others; but neglecting to have this conversation now, while you are still alive and able to do so, means that you are leaving the conversation for your loved ones to have later, when they are hurt and grieving or burdened with care responsibilities.   It also means that you are unfairly asking them to guess at what your wishes may have been, and make difficult decisions that should have been yours to make.

This article by Michael O’Mara lists 10 things to for your family before you die. 10 things may seem like a tall order, especially when the subject is “the great hereafter”; but it seems a whole lot easier when you consider that 7 of the things listed are generally addressed as part of your estate planning with our firm—and we can help you with the other 3 things if you so desire. We would actually add to that list  a # 11 that is equally important:  plan for the possibility of needing long term care. This could be by purchasing appropriate long term care insurance (if you can qualify and it is affordable) or by creating powers in your estate planning documents to enable you to qualify for a public benefits subsidy to both help defray those costs and preserve your assets for your family.  Our firm is especially qualified to help with #11.

You wouldn’t leave it for your children to pack your suitcase after you’ve left on vacation—don’t leave it for them to make your difficult decisions after you’ve passed away or after you have become incapacitated. Take charge today.

Your first reaction might be “Of course not!” But don’t speak too soon. Most estate plans are created at least in part to protect heirs (generally spouses and children) from the sometimes devastating blow of estate taxes; but with the estate tax in a confusing state of flux this year some of these plans won’t work as their creators intended—and heirs may end up looking for a way to protect themselves against the unintended consequences of well-intentioned estate plans.

 With the threat of the return of the estate tax in 2011 for estates valued over $1,000,000, the surviving spouse of a person dying this year may now have good reason to consider a timely disclaimer.  Doing so may eliminate tax as assets pass on down to the couple’s children.  For more information on how this works, see our article entiled “Repeal of Estate Tax May Warrant a Fresh Look At the Use of Disclaimers To Avoid Death Tax”

Although the use of a Disclaimer may be a good solution in some cases, there are no easy general answers to the question of whether you should exercise the right of disclaimer.  Much will depend upon the state of the estate tax law at the time of your loved one’s death.  One thing is clear, however:   most people would be well advised to include the option of disclaimer in their trust or wills, “just in case”.   If you have any questions whatsoever about an inheritance—or about your own estate plan—contact your elder law or estate planning attorney for help.

If you want to give your trustee a head start (or if you’ve been nominated as a trustee and need a little help yourself) read more about  “9 Do’s and 1 Don’t” of being a trustee. These suggestions will help a potential or new trustee better understand their responsibilities and the scope of the job to come. Advice such as #1, “Do read the trust document”; or #3, “Do keep the best interests of the beneficiaries in mind at all times” may seem obvious now, but it’s not always so clear when you’re beset by insistent and emotional relatives. The more technical tips such as #2, “Do create a checking account for the trust”; and #9, “Do file income tax returns for the trust” are invaluable starter-steps for someone who has never done this before.

But the most important tip to remember is the one don’t: #10, “Don’t fly solo. Get professional advice to make sure you are correctly fulfilling your role.” If you or the people you’ve chosen as your trustee are ever in doubt, please don’t hesitate to call our office for help.

One of the first reasons you should be worried, as revealed by this article in the Wall Street Journal, is that a larger base of estates will actually end up paying more this year rather than less; “Under last year’s law, estates up to $3.5 million, or $7 million for married couples, were exempt from federal tax. This year that law has been replaced by a fiendishly complex levy raising taxes on the assets of those with little as $1.3 million. It will affect the heirs of at least 50,000 U.S. taxpayers who die this year, whereas the old law affected only about 15,000 estates a year.”

Another main cause of worry, explains the New York Times, is the possible reinstatement of the estate tax by congress, effective retroactively; “The general view is that Congress wants to, and should, re-enact the estate tax retroactive to the beginning of this year,” [says tax specialist Ian Shane] “In January, February or March that’s easy, but as the year goes on it becomes more difficult.”

Of course the biggest worry estate planners have is the effect this year-long lapse will have on existing plans. Couples who already have an existing estate plan are advised to get their documents reviewed—and possibly revised—to prevent “standard clauses” from having unanticipated effects. As Joanne Johnson, head of the American wealth advisory service of J. P. Morgan explained to the NY Times, “It’s common to find language like ‘I hereby fund this trust to the maximum amount I can shelter from federal estate tax.’ The rest can then pass tax-free to the spouse. Such wording is risky as long as the estate tax is off the books… because there is no maximum.” What ends up happening is that everything goes into the trust for the kids, leaving the spouse with nothing.

What is the lesson here? The lapse in the estate tax may not be the boon it first appears to be. Talk with your estate planning attorney to find out how the new laws may affect your family.

How can you tell if a person is competent? In her book Senior Moments author Jacqueline D. Byrd quotes law professor Peter Margulies’ six factors to determine capacity:

1. Ability to articulate reasoning behind a decision
2. Variability of the client’s state of mind
3. Appreciation of the consequences of a decision
4. Irreversibility of a decision
5. Substantive fairness of a transaction
6. Consistency with lifetime commitments

Byrd goes on to say that for the purposes of determining whether or not a person is competent to sign a will or trust, however, the requirements may be slightly different; more focused on whether or not the principal has a clear knowledge of his or her assets, has a full knowledge of the persons to whom the estate is being left, and is able to reasonably formulate and express a plan for the disposition of the estate.

The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or Dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to have mental examination performed by a doctor, and even perhaps include a video  of the will signing. While the video is NOT a legal substitute for the Will or Trust, it can show mental competence at the time of signing if it is properly handled.  Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.

But the sad fact is that most of us don’t think about asking our parents or grandparents about their stories and histories until it’s too late. All too often it’s after grandma passes away and you’re going through her belongings that you find old books, photos or letters and wish you could ask about them.

This is part of the reason why writing memoirs, or a family history, has become so popular in recent years. Although the thought of “writing your memoirs” may seem daunting, it doesn’t have to be difficult. In fact, it has become so popular that there are quite a few books and tools out there to help guide you through either writing your own history or interviewing older relatives to record theirs. One simple technique used in our own family:  turn on the camcorder and interview Grandma.  It can be done in short segments over weeks or months.  Over time, you will have a wonderful treasure that you can replicate on DVD and share with the entire family.

Nothing seems more natural than including your memoirs as part of your estate plan. When you create an Estate Plan you plan to pass on your estate (property, assets, and wealth) to your loved ones; but that is only part of what you’ll want to pass along. An Estate Plan can also include your history and experience as part of that wonderful inheritance. Our firm can help take care of your assets, but only you can preserve the wisdom and experience that makes your history so unique. Don’t wait until it’s too late.

Do you participate in Facebook or other Social Networking sites?

Do you do any of your banking, bill paying or investing online?

If you answered yes to any of these questions then you might want to think about this next question… what will happen to all of your online assets and accounts when you die?

As we move further into the 21^st century more and more of our lives are moving into the digital realm. This includes friendships, networking, business and banking. The beauty of this is that it gives us unprecedented freedom and global access; the downside is that huge portions of our lives are locked away behind password protected accounts, many of which our friends and relatives aren’t even aware of. Online accounts are incredibly convenient, but they can create huge problems if your executor or agent has no way to retrieve your online passwords, assets or contacts after you die.

Some large online service providers are developing policies to deal with the transfer of accounts upon the death of the user, as noted in this article by Alejandro Martínez-Cabrera, “but the process is rarely a simple one.” Some companies require a death certificate before they will agree to shut down an account or turn over the contents, but rarely will an online company transfer actual ownership. It could take months or years of headaches and frustration before your heirs have access to any assets or information locked behind these online protections.

What this means for estate planning is that when you talk to your attorney about your will or your trust it’s not just about physical assets anymore; digital and online accounts and assets must be part of the conversation.

“Do Not Resuscitate” can cover a wide array of options, which is why it is so important to define what “life-saving procedures” means to you, and exactly when you would like your DNR to go into effect. Here are some examples of “life-saving procedures” that you (or your elderly relatives) should talk about with family, medical staff, and your estate planning attorney:

Artificial Nutrition and Hydration When grandma decides to stop drinking fluids orally and begins to dehydrate, does the nursing staff have permission to keep her hydrated via IV fluids? What about if you are in a non-reversible coma and unable to drink liquids on your own?

Antibiotics or Other Medicines Do you include antibiotics in your definition of “life-saving procedures?” Do you still if you have been declared irreversibly brain-dead by two independent physicians? When you are 102 and confined to a bed in a nursing home, do you want to be given medicines to combat pneumonia or other illnesses?

Chemotherapy A point similar to the paragraph above; if you are 102, afflicted with dementia and confined to a bed, do you want to receive expensive and painful chemotherapy treatments if the doctors discover cancer?

Blood Transfusions Blood Transfusions are fairly universally considered “life-saving procedures”, and they should be addressed in your healthcare documents. Do you have religious reasons for refusing a blood transfusion? Do you still want one if you are severely and irreversibly disabled?

Organ Donation Though obviously not considered a “life-saving procedure”, organ donation is a topic you should discuss with your family, medical providers, and estate planning attorney to prevent any misunderstandings or delays in treatment if and when the situation arises.

A healthcare directive is one of the most important documents in your estate plan. State-specific healthcare directives or living wills can often be found for free online or at your doctor’s office, and in a pinch these will work; but they cannot take the place of a conversation with a knowledgeable estate planning or Elder Law attorney who will ensure that all aspects of your decision-making process are addressed and put down in writing. After being discussed and incorporated into your Advance HealthCare Directive, you should then discuss them with your agent, which is usually a member of your own family. Be proactive in this effort, and it will save grief for the family and help ensure that your wishes are followed.

Has your will or trust been reviewed or updated in the past 3-5 years?

If you answered yes to these questions then you are two steps ahead of 2/3 of the rest of Americans. But the next question is the big one:

Does your family or executor know where your legal documents are stored, and are they able to access them?

Having a will or a trust is essential, but it doesn’t do any good if nobody can find it after you’re gone. Olympic medalist Florence Griffith Joyner (“Flo-Jo”) supposedly had a will when she tragically passed away at the age of 38, but because her husband was never able to locate the original document, a neutral administrator had to be appointed by the court to execute the estate; and whether her estate was executed according to her wishes is anybody’s guess.

A will or a trust often contains sensitive and emotional information, and for that reason many people (understandably) want to keep these documents private; but spending any amount of time or money on your estate planning documents won’t help your family if they can’t locate—or don’t have access to—those documents after your death.

We suggest having an earnest conversation with your family (or one or two select members at the very least) about the existence and location of your personal documents. Although they don’t have to know what is in your will or trust, knowing where those documents are can ensure that the time and money you spent creating them isn’t wasted.

Some people will be tempted to roll their eyes and joke about Leona Helmsley at the mention of including your pet in your estate plan, but most will agree with article author Max Alexander that ensuring your pet will be taken care of after your death is not a frivolous indulgence but a simple matter of responsibility.

Providing for the care of your cat or dog does not necessarily mean leaving millions of dollars in a pet trust, what it really means is taking steps to ensure your pet doesn’t end up out on the street or in a cage in the local animal shelter. The Wall Street Journal suggests four simple steps pet lovers can take when planning their estate, including:

• Choosing a “pet guardian”
• Deciding whether or not to provide financial assistance for the care of your pet
• Adding language to your will or trust regarding the care of your pet
• Writing down a list of instructions for your caregiver

Over 50% of U.S. households own a dog or a cat. Those pet owners know that in return for companionship, love, and devotion pets rely on their owners for the basic necessities: food, shelter and protection. Why gamble with the future when ensuring their care can be so easy?

What we suggest is making a list of your assets and their values and tax basis information now, while you are still alive and your memory is fresh. This is not a list that has to be shared with anybody until after your death, but the mere existence of your list of assets will save your family and heirs hours of headaches (and heartache) later on.

If the thought of taking the time and energy to sort through files and records to gather this information makes you want to run for the hills, imagine how your heirs will feel! To ease the burden, try making your list one asset at a time, over the course of many days. However you choose to create your list, you can be sure your heirs will thank you.

(Note: There is some cushion to this harsh new rule:  There is an exemption amount of $1.3 million of gain from this carry-over basis rule, and another $3 million exemption applying to assets inherited from a spouse. Any excess, however, will be subject to to the new carry-over basis rule.  The duty to allocate this exemption among assets going to different persons will be that of your executor or successor trustee. Choose that person wisely.  )