Revocable Living Trust

The Revocable Living Trust is a powerful tool for estate planning.As part of our estate planning consultation, we evaluate whether such a tool is a necessary part of your estate.A Will is sometimes sufficient, but there are distinct advantages to using a revocable trust.Depending on your needs, a revocable living trust may be preferred.

There are a few good reasons to use a Revocable Living Trust to dispose of your assets instead of a Will. A Will is an order for your Estate to go through probate court in the county you reside, but a Revocable Living Trust distributes your assets without the need for probate or any type of court supervision. Another good reason to use a Revocable Living Trust is that all information contained in a Last Will and Testament becomes part of the public record, accessible by everyone who knows the address of the local courthouse. However, a Revocable Living Trust is only accessible by those you share it with.As part of the trust package, we supply summary forms so that you can show others that you have a trust without showing the whole world the key provisions of it.Another benefit of a Revocable Living Trust is that you can select another trustee to operate the Living Trust for you during life and care for your property if you become incompetent. Revocable Living Trusts are also useful in avoiding estate taxes, especially for married couples.

Revocable Living Trusts Avoid Probate

A Revocable Living Trust transfers title of an individual’s or couple’s property into a trust during their life and then that property can pass freely to beneficiaries without the court’s interference.

Trusts Can Avoid Litigation and Are Private

Probate can be long and drawn out, especially if there is a caveat proceeding (a contest to the Will). However, there’s little for the court to interfere with in a Revocable Living Trust. You decide where your property goes in a trust and it typically only takes a few weeks to handle the trust’s instructions.

The Will goes through the court and becomes part of the public record. For many people there is value in the privacy of a Revocable Living Trust. The details of your assets and beneficiaries might subject your beneficiaries to scams and fraud from salesmen and con men.

There is substantial privacy in the use of a Revocable Living Trust provides substantial privacy since it does not go through the court system and become part of the public record.

Others Can Run Your Trust

As the Grantor of a Revocable Living Trust, you can give up control to someone else. This is helpful if you become incompetent and erases the need of expensive guardianship proceedings to do the same thing without a trust.

Tax Avoidance

There can be tax savings with proper trust estate planning. Oftentimes, the second of a married couple to pass will leave their children with immense tax liability. Oftentimes, by placing some restrictions on how money can be used by the surviving spouse, a trust can be used to mitigate and sometimes completely avoid this tax liability.

At Hopler & Wilms, you can choose to just have a trust or make your trust part of a comprehensive estate plan.

HIPAA Release

A HIPAA Release allows the covered health care provider to release much needed information to the right people so that your affairs can be properly managed.

What is HIPAA?

The HIPAA Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information. At the same time, the Privacy Rule is balanced so that it permits the disclosure of personal health information needed for patient care and other important purposes.

The Security Rule specifies a series of administrative, physical, and technical safeguards for covered entities to use to assure the confidentiality, integrity, and availability of electronic protected health information. The Privacy Rule, as well as all the Administrative Simplification rules, apply to health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form in connection with transactions for which the Secretary of HHS has adopted standards under HIPAA.

The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral.

“Individually identifiable health information” is information, including demographic data, that relates to:

the individual’s past, present or future physical or mental health or condition,
the provision of health care to the individual, or
the past, present, or future payment for the provision of health care to the individual,

and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).

The HIPAA Release is an important document that works in conjunction with other estate planning documents, such as a Healthcare Power of Attorney, to make sure informed decisions can be made swiftly by the appropriate people.

Mental Health Directive

An Advanced Instruction for Mental Health Treatment creates an instruction for mental health treatment.

Your Instructions

The Advanced Instruction for Mental Health Treatment allows you to make decisions in advance about certain types of mental health treatment.The instructions you include in the Advanced Instruction for Mental Health Treatment will be followed if a physician or eligible psychologist determines that you are incapable of making and communicating treatment decisions.Otherwise, you will be considered capable to give or withhold consent for the treatments.

Your instructions may be overridden if you are being held in accordance with civil commitment law.Under the Health Care Power of Attorney you may also appoint a person as your health care agent to make treatment decisions for you if you become incapable. You have the right to revoke the Advanced Instruction for Mental Health Treatment document at any time you have not been determined to be incapable. Once you are found to be incapable, you cannot revoke the Advanced Instruction for Mental Health Treatment. A revocation is effective when it is communicated to your attending physician or other provider. The physician or other provider shall note the revocation in your medical record. To be valid, the Advanced Instruction for Mental Health Treatment must be signed by two qualified witnesses, personally known to you, who are present when you sign or acknowledge your signature. It must also be acknowledged before a notary public.

This document is typically recommended if you have special wishes or beliefs with regard to mental health treatment or an atypical history of mental illness or reactions to mental health treatments.

Uses of This Document

A person may use the Advanced Instruction for Mental Health Treatment to provide consent for future mental health treatment if the person later becomes incapable of making those decisions. Under the Health Care Power of Attorney the person may also appoint a health care agent to make mental health treatment decisions for the person when incapable. A person is “incapable” when in the opinion of a physician or eligible psychologist the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions. The Advanced Instruction for Mental Health Treatment document becomes effective upon its proper execution and remains valid unless revoked. Upon being presented with the Advanced Instruction for Mental Health Treatment, the physician or other provider must make it a part of the person’s medical record.

In an Advanced Instruction for Mental Health Treatment, you can decide whether you want mental health treatment at all. You can decide which medicines you consent to be administered and choose which ones you do not consent to. You can make preferences as to which mental health facilities you prefer or refuse to be admitted to any at all. Additionally, you may choose who shall be contacted in the event of a mental health crisis. You can specify what you believe will cause a mental health crisis, what you believe will help you avoid hospitalization, how you react to being hospitalized, and how the staff of the hospital can help effectively help you. You can decide who your visitors are. Also, you can decide what types of medical interventions are prohibited. The most common one selected is ECT (shock treatment). [/one_half_last]

Oftentimes the Advanced Instruction for Mental Health Treatment is combined with a Healthcare Power of Attorney and Living Will. These three documents act in tandem for planning for incapacity. All these documents are included in our estate planning packages.

Living Will (Advance Directive) for North Carolina Estate Planning Clients

The Advanced Directive for a Natural Death (“Living Will”) is a document which you use to give your health care providers instructions to withhold or withdraw life prolonging measures in certain situations.

What am I doing with a Living Will?

You can use the Living Will to give instructions for the future if you want your health care providers to withhold or withdraw life prolonging measures in certain situations. The Living Will states what choices you would have made for yourself if you were able to communicate. Talk to your family members, friends, doctors, and others you trust about your choices. Also, it is a good idea to talk with professionals such as your doctors, clergy persons, and your attorney before you complete and sign this Living Will.

What is the process for drafting a Living Will?

Meeting

For those that prefer in person meetings, we schedule an appointment and discuss the options allowed by the living will and what the client’s wishes are. For those that prefer to begin the process on their own before coming in, we have a simple questionnaire that we can e-mail or fax to the client that we use to begin the discussion of the idea of a living will.

Discussion

Most of the times clients have a few ideas about decisions they’d like to make, but oftentimes they are not prepared for the volume of options available to them. Often we send the questionnaire ahead of time to allow them time to discuss the options with their loved ones prior to visiting an attorney. This narrows the discussion to things relevant to the client. Often, clients show up with a list of questions.

Combining

Oftentimes the Living Will is coupled with a Healthcare Power of Attorney. These two documents act in tandem for planning for incapacity. Sometimes, people have special desires about their mental health treatment, and we offer a third document — an Advanced Directive for Mental Health Treatment that can be used in tandem with both the Healthcare Power of Attorney and the Living Will.

Review and Execution

We have the documents we draft reviewed by the client, signed, witnessed by two qualified witnesses, and notarized. We also encourage our clients to participate in North Carolina’s innovative program by the Secretary of State that provides a registry to store your Healthcare Power of Attorney.

What’s included in a Living Will?

Circumstances

1. The first thing you do is decide under what circumstances you’d like life prolonging measures withheld. The three options are:

You have an incurable or irreversible condition that will result in your death within a relatively short period of time.
You become unconscious and your health care providers determine that, to a high degree of medical certainty, you will never regain your consciousness.
You suffer from advanced dementia or any other condition which results in the substantial loss of your cognitive ability and your health care providers determine that, to a high degree of medical certainty, this loss is not reversible.

Scope

2. You next decide that when those things happen, is your doctor ALLOWED to withhold life prolonging measures or is he/she REQUIRED to withhold life prolonging measures.

Nutrition

3. You separately decide whether you want health care providers to withhold artificial nutrition and hydration.

Comfort

4. You direct that if the circumstances you selected occur, you wish to be made as comfortable as possible, even if it hastens your death.

Overriding

5. If you have a Healthcare Power of Attorney, you decide which document overrides the other should they conflict.

Miscellaneous

6. You direct that your health care provider may rely on the document without threat of any type of legal action, that you’d like the document to be effective everywhere, and that you understand you have the right to revoke the document.

At Hopler & Wilms, you can choose to get a Living Will by itself or you can include it as part of a comprehensive estate plan.

Healthcare Power of Attorney for North Carolina Clients

The Healthcare Power of Attorney is a document you use to name a person as your health care agent.

What’s included in the Healthcare Power of Attorney? – Durham Estate Planning Attorneys

Identifying Information

1. The first thing you do in a Healthcare Power of Attorney is give the name, address, and phone numbers for as many health care agents as you’d like to designate. Typically they are set out to be designated only if the previous people on your list of agents is not able or not willing to act.

Physicians

2. You can choose what physicians you want to decide whether you are incapacitated. This is important because if you are declared incapacitated, the powers granted in the document are not exercisable. If those doctors are not reachable or you don’t have a preference, the attending physician will be the one to decide.

Limitations

3. The third thing you decide is whether you have any limitations on your health care agent’s ability to make decisions with regard to artificial nutrition or hydration. You also make any other special instructions regarding authority of the health care agent. Finally, you decide if you have any special instructions regarding mental health treatment. You would indicate at this point whether you have an Advanced Directive for Mental Health Treatment.

Remains

4. You choose whether you have any special instructions regarding disposition of your remains or autopsy, whether your health care agent can donate your organs, and whether you have any directions about your body being donated to anatomical study.

Information about the NC Healthcare Power of Attorney

Who should I name as my health care agent?

You should only name a person as your health care agent if you are comfortable giving that person broad and sweeping powers to make health care decisions for you. The person you name to make health care decisions for you may only do so when you cannot make or communicate those decisions. The Healthcare Power of Attorney we draft meets the requirements of North Carolina law and properly names health care agents to act on your behalf.

What kind of power am I giving to my health care agent?

The Healthcare Power of Attorney gives the person you designate as your health care agent broad powers to make health care decisions for you when you cannot make the decision yourself or cannot communicate your decision to other people. You should discuss your wishes concerning life prolonging measures, mental health treatment, and other health care decisions with your health care agent.

While in the Healthcare Power of Attorney, you grant broad powers, you have the ability then to limit the scope of that power by narrowly defining when and how the power may be used. If you have particular religious beliefs or philosophies on how your care should be carried out, we will tailor the the document to comply with your wishes.

Is my health care agent required to act if I have this document?

Nothing we draft requires an agent to act, but if they do exercise their power, your health care agent will be obligated to use due care to act in your best interests and in accordance with your wishes.

What is the process for drafting a Healthcare Power of Attorney?

For those that prefer in person meetings, we schedule an appointment and discuss the options allowed by the health care power of attorney and what the client’s wishes are. For those that prefer to begin the process on their own before coming in, we have a simple questionnaire that we can e-mail or fax to the client that we use to begin the discussion of the idea of a health care agent and the powers involved.

Most of the time, clients have a few ideas about the power they wish their health care agent, but oftentimes they are not prepared for the volume of options available to them. Often we send the questionnaire ahead of time to allow them time to discuss the options with their loved ones prior to visiting an attorney. This narrows the discussion to things relevant to the client. Often, clients show up with a list of questions.

Oftentimes the Healthcare Power of Attorney is coupled with a Living Will. These two documents act in tandem for planning for incapacity. Sometimes, people have special desires about their mental health treatment, and we offer a third document — an Advanced Directive for Mental Health Treatment that can be used in tandem with both the Healthcare Power of Attorney and the Living Will.

At Hopler & Wilms, LLP, you have the option of just drafting this document or drafting this document as part of an estate planning package.

Power of Attorney for North Carolina Clients

A Durable General Power Of Attorney is a written legal document authorizing someone you name as your “agent” (also referred to as “attorney-in-fact”) to make all types of decisions on your behalf — as if you were doing it yourself.

Why do I need a NC Power of Attorney?

If you were to become incapacitated, you would likely need someone to take care of life’s daily responsibilities for you. Mail still needs to be opened and bills need to be paid. Without a power of attorney, your loved ones will have to go to court to have a guardian appointed for you in order to handle your affairs appropriately. Guardianship proceedings are expensive and time consuming, and it gives you no control over who will be appointed as your guardian or what your guardian will be permitted to do. The Durable General Power of Attorney permits you to decide who will be able to act on your behalf if you become incapacitated or choose to have that person handle your affairs for you.

Who should be my agent?

Generally, you can appoint any competent adult to be your attorney-in-fact, although you should first determine whether that individual is willing to serve such a role beforehand. Most people choose someone who knows them well, cares about them, and someone they can trust. Most likely this will be your spouse, a close family member or perhaps a close friend. It is also wise to name a successor agent in case the person you name as agent becomes unavailable or unable to act when the time comes.

Why Do I Need A Durable Power Of Attorney Now?

Once you become mentally incapacitated, it will be too late to grant a Power of Attorney. One of the requirements in granting powers is that you are mentally competent. A Power of Attorney controls what happens to you and your assets when an unforeseen incident prevents you from acting on your own accord, whether it’s temporary or permanent. In this respect, a Durable Power of Attorney is more important than a Will, since the Power of Attorney controls what happens to you while you are alive.

What if I want to grant limited powers?

You have the ability to limit the scope of power in your power of attorney. You can limit it to specific types of transactions or specific time periods. This is useful for handling transactions while traveling or handling other commitments. Every circumstance is different, but for end of life planning, we usually recommend finding one person you trust absolutely and giving them broad power to handle your affairs.

What powers am I giving away?

The Power of Attorney is a very broad and sweeping document that grants enormous power in your attorney-in-fact. You want to pick someone you trust absolutely for this. The following are the powers we typically grant in powers of attorney that we draft:

1. Real property transactions

This includes the power to lease, purchase, exchange, and acquire, and to agree, bargain, and contract for the lease, purchase, exchange, and acquisition of, and to accept, take, receive, and possess any interest in real property whatsoever, on such terms and conditions, and under such covenants, as said attorney‑in‑fact shall deem proper; and to maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens, mortgage, subject to deeds of trust, and in any way or manner deal with all or any part of any interest in real property whatsoever, that the principal owns at the time of execution or may thereafter acquire, for under such terms and conditions, and under such covenants, as said attorney‑in‑fact shall deem proper.

2. Personal property transactions

This includes the power to lease, purchase, exchange, and acquire, and to agree, bargain, and contract for the lease, purchase, exchange, and acquisition of, and to accept, take, receive, and possess any personal property whatsoever, tangible or intangible, or interest thereto, on such terms and conditions, and under such covenants, as said attorney‑in‑fact shall deem proper; and to maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens and mortgages, and hypothecate, and in any way or manner deal with all or any part of any personal property whatsoever, tangible or intangible, or any interest therein, that the principal owns at the time of execution or may thereafter acquire, under such terms and conditions, and under such covenants, as said attorney‑in‑fact shall deem proper.

3. Bond, share, stock, securities and commodity transactions

This includes the power to request, ask, demand, sue for, recover, collect, receive, and hold and possess any bond, share, instrument of similar character, commodity interest or any instrument with respect thereto together with the interest, dividends, proceeds, or other distributions connected therewith, as now are, or shall hereafter become, owned by, or due, owing payable, or belonging to, the principal at the time of execution or in which the principal may thereafter acquire interest, to have, use, and take all lawful means and equitable and legal remedies, procedures, and writs in the name of the principal for the collection and recovery thereof, and to adjust, sell, compromise, and agree for the same, and to make, execute, and deliver for the principal, all endorsements, acquittances, releases, receipts, or other sufficient discharges for the same.

4. Banking transactions

This includes the power to make, receive, sign, endorse, execute, acknowledge, deliver, and possess checks, drafts, bills of exchange, letters of credit, notes, stock certificates, withdrawal receipts and deposit instruments relating to accounts or deposits in, or certificates of deposit of, banks, savings and loan or other institutions or associations for the principal.

5. Safe Deposits

This includes the power to have free access at any time or times to any safe deposit box or vault to which the principal might have access as lessee or owner.

6. Business Operating Transactions

This includes the power to conduct, engage in, and transact any and all lawful business of whatever nature or kind for the principal.

7. Insurance Transactions

This includes the power to exercise or perform any act, power, duty, right or obligation whatsoever in regard to any contract of life, accident, health, disability or liability insurance or any combination of such insurance procured by or on behalf of the principal prior to execution; and to procure new, different or additional contracts of insurance for the principal and to designate the beneficiary of any such contract of insurance, provided, however, that the agent himself cannot be such beneficiary unless the agent is spouse, child, grandchild, parent, brother or sister of the principal.

8. Estate Transactions

This includes the power to request, ask, demand, sue for, recover, collect, receive, and hold and possess all devises, as are, owned by, or due, owing, payable, or belonging to, the principal at the time of execution or in which the principal may thereafter acquire interest, to have, use, and take all lawful means and equitable and legal remedies, procedures, and writs in the name of the principal for the collection and recovery thereof, and to adjust, sell, compromise, and agree for the same, and to make, execute, and deliver for the principal, all endorsements, acquittances, releases, receipts, or other sufficient discharges for the same.

9. Personal Relationships and Affairs

This includes the power to do all acts necessary for maintaining the customary standard of living of the principal, the spouse and children, and other dependents of the principal; to provide medical, dental and surgical care, hospitalization and custodial care for the principal, the spouse, and children, and other dependents of the principal; to continue whatever provision has been made by the principal, for the principal, the spouse, and children, and other dependents of the principal, with respect to automobiles, or other means of transportation; to continue whatever charge accounts have been operated by the principal, for the convenience of the principal, the spouse, and children, and other dependents of the principal, to open such new accounts as the attorney‑in‑fact shall think to be desirable for the accomplishment of any of the purposes enumerated in this section, and to pay the items charged on such accounts by any person authorized or permitted by the principal or the attorney‑in‑fact to make such charges; to continue the discharge of any services or duties assumed by the principal, to any parent, relative or friend of the principal; to continue payments incidental to the membership or affiliation of the principal in any church, club, society, order or other organization, or to continue contributions thereto.

10. Social Security and Unemployment

This includes the power to prepare, execute and file all social security, unemployment insurance and information returns required by the laws of the United States, or of any state or subdivision thereof, or of any foreign government.

11. Benefits from Military Service

This includes the power to execute vouchers in the name of the principal for any and all allowances and reimbursements payable by the United States, or subdivision thereof, to the principal, arising from or based upon military service and to receive, to endorse and to collect the proceeds of any check payable to the order of the principal drawn on the treasurer or other fiscal officer or depository of the United States or subdivision thereof; to take possession and to order the removal and shipment, of any property of the principal from any post, warehouse, depot, dock or other place of storage or safekeeping, either governmental or private, to execute and to deliver any release, voucher, receipt, bill of lading, shipping ticket, certificate or other instrument which the agent shall think to be desirable or necessary for such purpose; to prepare, to file and to prosecute the claim of the principal to any benefit or assistance, financial or otherwise, to which the principal is, or claims to be, entitled, under the provisions of any statute or regulation existing at the creation of the agency or thereafter enacted by the United States or by any state or by any subdivision thereof, or by any foreign government, which benefit or assistance arises from or is based upon military service performed prior to or after execution.

12. Tax matters

This includes the power to prepare, execute, verify and file in the name of the principal and on behalf of the principal any and all types of tax returns, amended returns, declaration of estimated tax, report, protest, application for correction of assessed valuation of real or other property, appeal, brief, claim for refund, or petition, including petition to the Tax Court of the United States, in connection with any tax imposed or proposed to be imposed by any government, or claimed, levied or assessed by any government, and to pay any such tax and to obtain any extension of time for any of the foregoing; to execute waivers or consents agreeing to a later determination and assessment of taxes than is provided by any statute of limitations; to execute waivers of restriction on the assessment and collection of deficiency in any tax; to execute closing agreements and all other documents, instruments and papers relating to any tax liability of any sort; to institute and carry on through counsel any proceeding in connection with determining or contesting any such tax or to recover any tax paid or to resist any claim for additional tax on any proposed assessment or levy thereof; and to enter into any agreements or stipulations for compromise or other adjustments or disposition of any tax.

13. Employment of Agents

This includes the power to employ agents such as legal counsel, accountants or other professional representation as may be appropriate and to grant such agents such powers of attorney or other appropriate authorization as may be required in connection with such representation or by the Internal Revenue Service or other governmental authority.

14. Gifts to Charities and to individuals

15. Renunciation of an interest in or power over property

This includes the power to renounce an interest in or power over property, including a power of appointment.

Common Estate Planning Documents