Fong Law Group

如果不想留財產給子女，應否在信託剔除子女的名字

After a Dementia Diagnosis: Preparing for the Future

A diagnosis of dementia, a category of diseases affecting memory and thinking that includes Alzheimer’s disease, can feel overwhelming and upsetting. You might worry that you will lose control over your life and ability to make your own decisions. Fortunately, receiving a diagnosis of dementia or Alzheimer’s does not mean that you cannot execute legal documents or make decisions about plans for your future finances and health care.

People with dementia can execute legal documents to plan for their futures when they have the mental state — or capacity — to do so. Capacity refers to your ability to understand the contents of a legal document, such as a will, and know the consequences of executing it. If you know who your family is, understand your assets, and comprehend your will, you can execute a valid will and plan for the distribution of your estate after your death, provided you understand what you are signing and its effect on your life.

The following can help you in planning where you wish to live, what kind of care you receive, and what happens to your assets if you get severely ill or pass away.

Health Care Power of Attorney

Consider appointing a health care agent to make medical decisions if you become incapacitated. You can name a health care agent using a health care power of attorney, sometimes called a medical power of attorney or a durable power of attorney for health care. Your health care agent can make medical choices if you can no longer do so.

Picking someone you trust, such as a responsible child or spouse, or another family member, can give you peace of mind that they will have your best interests and desires in mind when they make decisions. For instance, dementia patients who prefer receiving in-home care can express this wish to their agent.

In the power of attorney document, you can also state your intentions regarding health care and limit your agent’s capabilities if you wish.

Living Will

For an added layer of protection, you can also draft an advance directive or living will that states your desires regarding medical treatment if you are unable to communicate with your physician. Your living will can express whether you want treatment to prolong your life.

Financial Power of Attorney

Using a financial power of attorney, known as a power of attorney for property, you can select a trusted individual to handle your financial affairs if your disease progresses such that you can no longer make financial decisions. Your financial agent can manage your money and pay bills on your behalf, but they cannot use your money for themselves.

In the power of attorney for property document, you can restrict your agent’s powers. For instance, a person might specify that the agent can manage personal accounts, but not sell the family home.

Long-Term Care Planning

After a dementia diagnosis, consider whether you would like to receive long-term care at home or in a facility, and whether you intend to apply for Medicaid or long-term care insurance. If you want to apply for Medicaid, you might need to prepare your finances to become eligible.

Last Will and Testament

Making a last will and testament, also known as a will, can help ensure your assets go to your family and friends when you pass away. You can determine how much of your money each beneficiary will receive and make bequests to individuals. For example, if you have items of sentimental value, you can leave them to specific people. Without a will, your assets will transfer to your heirs according to the law in your state.

Meet with you attorney to discuss your plans for your future. For additional support and to learn more about Alzheimer’s disease and related disorders, reach out to your local Alzheimer’s Association chapter.

如何利用信託避免灣區渣男重演?

信託 Q & A (國語)

What Is the Difference Between a Living Will and a Do-Not-Resuscitate Order?

It is a very good idea to create advance directives in order to plan for the possibility that you may one day be unable to make your own medical decisions. In doing so, there can be confusion about the difference between a living will and a "do-not-resuscitate" order (DNR). While both these documents are advance medical directives, they serve different purposes.

A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you are incapacitated and is not set in stone -- you can always revoke it at a later date if you wish to do so.

When drawing up a living will, you need to consider the various care options and what you would like done. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life- saving or life-prolonging options. 

A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you are in a vegetative state. Everyone can benefit from a living will, while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR.

In addition to a living will, you will also need a health care proxy or broader medical directive. 

Is Will Planning the Same as Estate Planning? 遺囑規劃是否與資產規劃相同？(中英對照)

“To many, will planning and estate planning are the same. While the terms may seem interchangeable, they are actually very different processes.”

Will planning and estate planning are very different processes. Both provide family members with instructions on how assets should be distributed after death, but estate planning goes beyond that, to provide instructions on your health, finances and more while you are living, according to an article from Lexology titled “The Differences Between Will Planning & Estate Planning.”

An estate planning lawyer can help you determine exactly what kind of planning you need, help you create the documents that will support your needs and give you and your family guidance in more complex matters.

Will planning is a relatively simple process that involves creating a document known as a last will and testament. It conveys instructions for after you have died. That may include naming a guardian to rear your children or who should take over your business, who should be in charge of your estate, the executor and who will receive your assets.

Everyone needs a will. It avoids family disputes about property, saves money on legal expenses that occur when there is no will and makes many decisions about your estate much easier. It is a kindness to your loved ones, to have a will.

Estate planning is a little different. It is more detailed and involves tax planning and certain protections for you while you are living. A living will is used to convey your wishes about what kind of medical care you want, if you should become unable to speak on your own behalf. The living will includes end-of-life care, the use of extraordinary measures, like a respirator or feeding tube and more. This is also a kindness to your loved ones, since it spares them from having to guess what your wishes might be.

You’ll also want to have a financial Power of Attorney created to instruct a named person regarding how to handle your money, your business and your investments, if you are unable to function. This person can do anything you could do, from transacting business to moving money into accounts, etc.  

A living trust can be used to outline your wishes regarding your property and finances. An estate planning attorney will be able to review your assets and determine whether you need a living trust or if there are other trusts that may be more appropriate for your situation.

Beneficiaries are the individuals named on various accounts. They will receive assets directly from the institution that holds the assets, like insurance policies, retirement accounts, investment accounts and the like. It’s very important to understand that when there is a beneficiary named in a document, that beneficiary will get the assets, regardless of what your will says. These should be updated on a regular basis and if possible, you should always have a primary beneficiary and a secondary beneficiary.

An estate planning attorney will review your situation and talk with you about your goals for your family and your assets after your death. They will create a comprehensive plan with the necessary documents.  

Reference: Lexology (January 28, 2019) “The Differences Between Will Planning & Estate Planning”

“對許多人來說，遺囑規劃跟資產規劃是一樣的。雖然這些術語似乎通用，但實際上它們是非常不同的過程。”

遺囑規劃和資產規劃是非常不同的過程。根據Lexology的一篇題為“Estate Planning: Failed Testamentary transfers,”的文章，兩者都是為家人提供了有關在去世後資產如何分配，但資產規劃的範圍更廣，它包括有關您的健康，財務等方面的指示以及資產規劃。”

資產規劃律師可以幫您確定您需要什麼規劃，切合您的需求去建立文件，並在複雜的情況下為您和您的家人提供指導。

遺囑規劃是一個相對簡單的過程，涉及成立一個稱為遺囑的文件。它傳達了在你去世後的指示。這可能包括指定一名監護人來撫養您的子女或由誰接管您的業務，應由誰去管理您的遺產，遺囑執行人以及誰會繼承您的資產。

每個人都需要遺囑。它避免了有關財產的家庭糾紛，節省了在沒有遺囑的情況下發生訴訟時的法律費，並且更容易做出有關您的遺產的許多決定。成立遺囑是為您的家人設想。

資產規劃略有不同。它更詳細，涉及在您在生時的稅務規劃和某些保障。生前信託可在您不能為自己發言時傳達您希望得到怎樣的治療。生前信託包括生命末期照料，使用特殊設施，如呼吸器或餵食管等。這也是為您的家人著想，因為他們不用猜測你的意願。

如果您失去能力，您還需要成立財務授權書，以指示您指定的人如何處理您的資產，業務和投資。這個人可以做任何你能做的事情，從交易業務到將錢轉入賬戶等。

生前信託是概述您對財產和財務的意願。資產規劃律師將審查您的資產，並確定您是否需要成立生前信託，或者是否有其他信託可能更適合您的情況。

各種賬戶都有指定受害人。他們將直接從持有資產的機構中獲得資產，如保險單，退休賬戶，投資賬戶等。有一點非常重要,就是要明白不管您的遺囑的內容如何,這些文件上命名的受益人將獲得資產。這些文件應定期更新，如可能，您應要有主要受益人和次要受益人。

資產規劃律師將審核您的情況，並跟您討論在您去世後您對家庭和資產的意願。他們將製定一份包含必要文件的綜合計劃。

參考: Lexology (January 28, 2019) “The Differences Between Will Planning & Estate Planning”

Add This to Your New Year’s Resolutions

“It’s one of the most important conversations that none of us want to have.”

The conversation with loved ones about growing older and the chances that we or our spouses are going to need help with the activities of daily living, is something that needs to be talked about before being faced with that situation. It’s difficult at best, says The Des Moines Register in the article “In 2019, resolve to have a difficult conversation,” but very necessary.

The person who is contemplating needing help, may want to start the conversation but the person who may be called on to help may find it too difficult to consider. Who wants to think about their parents getting frail and needing help going to the bathroom? No one.

The person who is starting to feel the impact of aging, may already be aware of some limitations. However, talking with their children or potential caregivers, may change the conversation from “someday” to “soon.” The loss of independence is one of the big milestones, just as gaining independence is a milestone earlier in life. That’s a hard thing to accept for both sides.

Those who have lived through this process of needing to become caregivers, say that it would have been easier, if they would have known what their loved ones wanted. So, would have been knowing what kind of help their loved ones could afford. It’s better to have time to research available resources in advance, rather than operating in crisis mode.

This is what your conversations need to address:

• Medications, physical health, emotional well-being and health care providers
• Their wishes, if their health declines slowly or rapidly. Do they want to stay at home? Who would they want to help with daily care?
• Finances: Can they afford to pay for care at home? Has any Medicaid planning been done? What government programs are they eligible for? Do they have a CPA or financial advisor?
• Estate plan: Where is their Last Will and Testament? Is there a Power of Attorney, Living Will or Medical Directive in place? Who is their estate planning attorney?
• Documents, including birth certificates, Social Security, insurance cards, safe deposit box keys, computer passwords, etc.

We prefer to think we’ll live a long healthy life and then die peacefully in our sleep, with no advance notice. However, that is not what happens to most Americans. Seven out of 10 people over age 65 will need help from others at some point, and most will need it for at least three years. Therefore, make having this conversation part of your New Year’s resolutions. When the time comes, you and your caregivers will be glad that you did.

Reference: The Des Moines Register (Dec. 19, 2018) “In 2019, resolve to have a difficult conversation”

Think Your Estate Plan is Done? Think Again! 認為您的資產計劃已完成？再想想！(中英對照)

“You have reviewed multiple drafts of your Will, Trust, Living Will and Financial Power of Attorney, attended multiple meetings with your attorney, discussed the final distribution of your assets, selected your Executor and Trustee and finally executed your estate planning documents. So, you must be done, right?”

Putting your estate plan in place is a big first step in the process. However, it is only the first step for many people, according to this article “So You Think You’re Done with Your Estate Plan…” from the National Law Review. Here’s an excellent checklist of items that are commonly overlooked and that can undo all your good efforts.

Beneficiary Designations. These assets generally do not pass through the will, so the beneficiary named receives the asset, whether it’s proceeds from a life insurance policy or the entire contents of your investment accounts. These forms must be prepared and filed with the account custodian or the insurance company, so beneficiaries are properly identified. If you have not looked at these designations for more than a few years, it’s time to look at them again to make sure the ones you originally selected are still the ones you wish to receive your assets.

Trust Funding and Form of Ownership of Assets. You can easily wreck your entire plan by failing to fund trusts or retitle assets. If you’ve executed a Revocable Trust with probate avoidance in mind, for instance, and then fail to fund the trust, your beneficiaries will need to probate your assets. Assets owned jointly with rights of survivorship will not pass according to your will. If your estate plan was done with taxes in mind, you could put the entire plan at risk.

Talking with Family and Trusted Professionals. Having a plan no one in the family knows about, can lead to an estate disaster. Speak with family members, so they know you have an estate plan and who they should be in touch with when the time comes.

Accessibility of Estate Plan and Related Information. If your documents are locked up in a safe deposit box or an encrypted file or secure portal, no one will be able to access them. Your estate planning attorney will be able to advise you, as to the best way to ensure that paper and electronic documents are available to family and fiduciaries when needed. The same holds true for burial and health care instructions. Prepare a list with the contact information of your estate planning attorney, basic information about your assets and other information that will be needed by family and fiduciaries.

Keeping Up with Change. Tax laws change and lives change. If you have been divorced, had a serious illness, or any major change to your assets, you’ll need to speak with your estate planning attorney to see if any of those changes need to be incorporated into your estate plan.

Reference: National Law Review (Oct. 18, 2018) “So You Think You’re Done with Your Estate Plan…”

“您已審閱了您的遺囑，信託，生前遺囑和財務授權書的多份草案及與您的律師多次會面，討論了您的資產的最終如何分配，選擇了您的執行人和受託人，最後簽署了您的資產規劃文件。所以，你一定是已完成了，對不？“

制定資產計劃是這個過程中的第一大步。然而，根據 National Law Review 的這篇文章“So You Think You’re Done with Your Estate Plan…”，這只是許多人的第一步。以下這裡有一個很好的項目清單例出通常被人們忽視的地方，而這些忽視可以抵銷你所有先前的付出。

指定受益人。這些資產通常不會通過遺囑，因此指定受益人在你過世後接收資產，無論是人壽保險還是投資賬戶。這些表格必須填好並提交與賬戶託管人或保險公司，以便正確識別受益人。如果您多年沒有查看這些指定受益人名稱，則需要再次檢查，以確保您最初所選擇的人仍然是您希望獲得你資產的人。

信託基金和資產所有權的形式。如果你沒有把資產注入信託或把資產所有權改寫，你的整個計劃便會輕易地被破壞。例如，您簽好了信託本可以避免遺囑認證，可是你未能為信託注入資產，這樣您的受益人還是需要將您的資產進行遺囑認證。有自動繼承權的資產將不會根據您的遺囑分配。如果您的資產計劃是考慮稅項的情況下而做的，那麼您可能會將整個計劃置於風險之中。

與家人和值得信賴的專業人士交談。制定一個家中沒有人知道的計劃，可能導致財產災難。與家人交談，讓他們知道您有資產計劃，以及到了適當時候他們知道應該跟誰聯繫。

資產計劃可獲性及相關信息。如果您的文件被鎖在保險箱或加密文件或安全平台中，則任何人都無法獲取。您的資產規劃律師能夠為您提供建議，用最好的方式以確保在需要時向家人和受託人提供文書和電子文檔。葬禮和醫療指示也是如此。準備一份包括您的資產規劃律師的聯繫資料清單，有關您資產的基本 資料以及其他家人和受託人需要的資料。

趕上變化。稅法改變和生活改變。如果您已經離婚，患有嚴重疾病，或者您的資產發生任何重大變化，您需要與您的資產規劃律師聯繫，看看您的資產計劃是否有需要作出變更。

參考: National Law Review (Oct. 18, 2018) “So You Think You’re Done with Your Estate Plan…”

Preparing for the Inevitable: End of Life Decisions

“Are you ready for the end of life? Many of us can resolutely answer “no.” I am not implying preparation for life after death, salvation or eternal darkness—I simply mean forethought in the medical care that you wish to receive in a life-threatening illness or injury.”

When most people think of preparing for the end of their lives, it’s accompanied by an image of an elderly person surrounded by loved ones. Not everyone is lucky enough to have what we call a “good death.” Preparing for end of life, as described in an article from The Herald-Mail titled “It’s never too early to prepare for the end of life,” needs to include emergency situations, where decisions about life-saving measures must be made, usually by family members who are often not prepared.

Spare your loved ones from the agony of making decisions, based on what they think you might have wanted by planning in advance for what is, without question, unpleasant to consider. Nevertheless, in today’s era of medical technologies, such scenarios are quite possible. Let’s start with the advance directive.

Advance directives are legal documents that include both a living will and medical power of attorney. The living will allows you to document your specific preferences for medical care at the end of life. These range from aggressive intervention that saves your life, to palliative comfort care that gives medication to alleviate pain and suffering. There is a wide range between the two, so the more specific you can be, the better your loved ones will know what you want.

A medical power of attorney lets you designate a trusted person—spouse, friend or adult child—to make decisions for medical care, if you cannot do so. This is also known as a health care surrogate or proxy.

Here’s what happens when no advance planning has occurred. A critical medical situation arises, and family members are contacted. Without having had a discussion about the person’s wishes, typically an aging parent, siblings don’t know what to do. If they do know what to do, but there is no legal document attesting to their parent’s wishes or if the legal document is not physically present, the medical provider is bound by their own determination of the situation and their professional code of ethics.

That action may not be what you would have wanted. However, your family or trusted friends do not have the right to make decisions, if legal documents are not in place. The solution is relatively simple: plan in advance.

First, give serious thought to what you would want to occur. Make a list of questions to discuss with your primary health care physician.

Second, have a conversation with family members and friends about your wishes, and discuss with them their role in such situations. Are they willing to carry out your wishes and to take on this responsibility?

Third, meet with your estate planning attorney and prepare the necessary documents. While you’re doing that, review your estate plan to ensure that your end-of-life wishes, and overall estate plan are aligned.

Reference: The Herald-Mail (Oct. 8, 2018) “It’s never too early to prepare for the end of life”

Why You Should Have an Advance Directive 為什麼你應該有一個預先指示 (中英對照)

“Advance directives come up frequently in conversations about health care decision-making, as people age. Their purpose is to provide written instructions for medical care, in instances where a patient is unable to communicate them herself.

An advance directive is a legal document that states a person’s preferences for medical treatment and medical decision-making, reports Valley News in an informative article titled “Advance Directives Provide Clear Guidance for Care.”

There are two components that make up an advance directive: a durable power of attorney and a treatment preferences section.

The durable power of attorney for health care allows you to appoint someone to make medical decisions, if you lack the capacity to make those decisions for yourself.

The treatment preference, which is sometimes referred to as a living will, lets you specify what kind of treatment you would want in a difficult circumstance. Treatment and care preferences usually focus on what you would want at the end of life or if you were in a permanently unconscious state. There are other preferences that can be expressed, including pain control, blood transfusions, mental health care and spiritual care. Another preference: who should—and should not—be involved in discussions about treatment.

Most people want to express their wishes to avoid aggressive measures being taken to extend their lives, when the end result will be suffering and a delay of their passing. Others chose to avoid the financial burdens that may or may not result in any kind of change in their health or the quality of their life.

Some have these documents prepared to make it clear that they want to spend their final months, weeks or days at home with loved ones with care only to relieve pain or care, so they can be conscious and able to speak with those around them.

Advance directives are a blessing to loved ones since they do not have to make hard choices in a crisis situation. They know what their aging parent or spouses wishes.

It’s important to choose the person you want to be responsible for your care well in advance. Make sure it’s someone you trust, who knows you well and will be able to make hard decisions in a highly emotional time. They’ll also have to be able to communicate with your doctors and family members.

These documents are bound by the laws of your state, so speak with an estate planning attorney who practices law in your state of residence. They’ll be able to prepare these documents on your behalf, along with a will and other estate planning documents.

Reference: Valley News (Sep. 1, 2018) “Advance Directives Provide Clear Guidance for Care”

“隨著人們年齡的增長，他們會經常談到有關醫療決定的問題。目的是在患者無法自行溝通的情況下提供醫療護理的書面說明。”

預先指示 (Advance Directives) 是一份法律文件，說明一個人對醫療護理和醫療決定的意願，谷新聞在一篇題為信息的文章中報導“Advance Directives Provide Clear Guidance for Care.”(預先指示提供明確的護理指導)

預先指示是由兩個組成部分構成：持久的授權書和治療意願的部分。

如果您缺乏為自己做出決定的能力，那麼持久的醫療授權書允許您指定某人為您做出醫療決定。

治療意願有時被稱為生前意願，可讓您指定在困難環境中您想要的治療方式。治療和護理意願通常重於在您生命結束時想要什麼，或者您處於永久性無意識狀態。還有其他意願，包括疼痛控制，輸血，精神保健和精神護理。另一個意願：誰應該以及不應該參與有關治療的討論。

大多數人都希望表達他們的願望，避免採取過激措施來延長他們的生命，導致最終結果是痛苦和延遲他們的死亡。其他人則選擇避免經濟負擔, 這可能會或不會導致他們的健康或生活品質發生改變。

有些人準備好這些文件，用來表示他們希望在家中與親人一起度過最後幾個月，幾週或幾天，主要是為了緩解疼痛和免除不必要的護理，使他們會有意識並能與周圍的人交談。

預先指示是對親人的祝福，因為他們不必在危機情況下做出艱難的選擇。他們知道他們年邁的父母或配偶的意願。

重要的是要提前選擇您想要護理負責人。確保這是你信任的人，誰能夠很好地了解你，並且能夠在情緒激動的時刻做出艱難的決定。他們還必須能夠與您的醫生和家人溝通。

這些文件受到您所在州法律的約束，因此請諮詢在您居住的州的執業資產規劃律師。他們將能夠代表您準備這些文件，以及遺囑和其他資產規劃文件。

參考: Valley News (Sep. 1, 2018) “Advance Directives Provide Clear Guidance for Care”