Trying to plan your North Carolina estate? Get the answers you need to protect your family.
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What is a Health Care Power of Attorney? Is It the Only Health Care Directive That I Need?
In North Carolina, a Health Care Power of Attorney (some states call it a health care proxy or advance medical directive) is critical if you want to protect your own future well-being and reduce the likelihood of stress and family conflict over your future health care.
What Does a Health Care Power of Attorney Do?
A North Carolina Health Care Power of Attorney allows you to name the person (your agent) that you want to make your health care decisions if you are unable to make those decisions yourself. Generally, you would name your first choice to serve as your health care agent and then would also nominate one or more back-ups in case your first choice is unable to serve. The Health Care Power of Attorney then provides specific powers for what health care and medical decisions your agent has authority to make in the event that you become incapacitated.
Why Is it Important to Have a Health Care Power of Attorney?
Do you recognize the name Terri Schiavo? In 1990 Terri suffered cardiac arrest that resulted in Terri going into a persistent vegetative state due to brain damage from lack of oxygen. Terri was placed on artificial life support, including a feeding tube. Terri's husband and parents then fought their way through the court system for years over who had the legal authority to make Terri's health care decisions and whether or not she would have wanted life-sustaining treatments under the circumstances. The case went through 14 appeals and was not resolved until 15 years later, when in 2005 the case was resolved. Terri's feeding tube was removed on March 18, 2005 and she passed away on March 31, 2005.
Terri's case was in the national news of years and sparked a public discussion regarding the importance of health care directives and a health care power of attorney that clearly identifies who the health care decision maker is and what decisions that person is authorized to make. In short, if you don’t want to “famous” like Terri, I strongly encourage you to have a properly executed Health Care Power of Attorney that clearly sets out who is authorized to make your medical decisions.
But Is a Health Care Power of Attorney Enough? Are There Other Health Care Directives That I Need?
Arguably, no. Anyone I've ever spoken with who has served as a health care agent for a loved one has some sort of story to share about how stressful it was and how uncertain they felt about their loved one's wishes. Making life or death decisions is not easy, especially when your loved one wants to honor your wishes.
These days, it's common for a Health Care Agent to serve as your agent for months or years. If you become incapacitated from an accident, stroke, or debilitating long-term illness such as dementia, Alzheimer's disease, or Parkinson's disease, your Health Care Agent may be called upon to serve as your agent for years and make numerous decisions about your living environment, long-term care needs, and end-of-life care decisions.
Serving as Health Care Agent can be an emotionally difficult role. We find that often, the Health Care Agent doesn't truly know what your wishes are. These are uncomfortable topics to think about and discuss. We find that many people have only made generic statements to their family members along the lines of "I don't want to be kept alive by machines" or "Don't put me in a nursing home." Unfortunately, the health care world is not usually so black and white. There is a whole spectrum of health care decisions and caregiving needs that could arise and those vague statements don't really give your Health Care Agent any meaningful guidance to work with.
What Else Should I Do?
In our office, we supplement the Health Care Power of Attorney with several items. Many of our clients have expressed a desire to make things as easy as possible for their family, but when it comes to providing guidance about their health care wishes, they find themselves at a bit of a loss. That's why we've developed several supporting tools to make this easier for you and for your future Health Care Agent.
A separate HIPAA Authorization is recommended to ensure that your family doesn't get the 'silent treatment' due to cumbersome HIPAA medical privacy laws. Doctors, hospitals, and other health care providers are prohibited by law from sharing your information with others--including your spouse or family members--without specific written authorization to do so.
Our Living Will addresses multiple potential end-of-life scenarios and allows you to specify under each scenario treatments that would or would not want ranging from treatments that are considered by most to be quite invasive to non-invasive treatments like antibiotics and simple diagnostics.
Letter of Instruction to My Health Care Agent
Our Letter of Instruction to My Health Care Agent provides you with a tool to think through other potential health care scenarios including your thoughts regarding surgery, chemotherapy, alternative or experimental medicine, right to die laws, family visitation, dementia directives, and long-term care wishes.
Personal Care Plan
Our Personal Care Plan tells future potential caregivers about you as a person. All the things that can be easy to take for granted while we're healthy, but can suddenly become important if you can no longer express your wishes. For example, if you were to have aphasia after a stroke, you may be fully cognizant but may have difficulties communicating with your caregivers. The Personal Care Plan addresses things such as what you like to eat and drink, hobbies, what you like to watch on television, what music you enjoy, and similar.
Personal Planning Portfolio
Our Personal Planning Portfolio then assembles this guidance along with instructions for the Health Care Agent explaining their role and their duties and answering frequently asked questions that they may have.
Ideally, a well-rounded estate plan should also address long-term care planning. If you were to need long-term care due to an extended disability or illness, what kind of care would you want? How would you afford to pay for it?
Although it may be uncomfortable to think about some of these issues, we strongly encourage you to share some detailed guidance with your Health Care Agent regarding your health care preferences. Don't leave your loved ones with the little nagging voice in the back of their head asking, “Am I doing the right thing?” That voice can haunt them for years.
Get Started on Your Planning & Peace of Mind
We can guide you through the steps of creating a comprehensive health care plan and make the process as easy as possible for you and your family. A great place to start if you're looking to learn more is to attend one of our free public seminars or request our report, Estate Planning Pitfalls: The Twelve Most Common Threats To Your Estate & Your Family’s Future. If you'd like to discuss other ways to get started, call us at 919-443-3035 or complete our online contact form.
Related Links--Series on Health Care Directives:
What Is a Living Will?
A North Carolina Living Will (also known as an “Advance Directive for a Desire for a Natural Death”) is a document in which you provide instructions to your Health Care Agent and health care providers regarding whether or not you want life support and life-sustaining measures in an end-of-life scenario. While it is intended to tell your Health Care Agent how you want to be cared for while you are living, many think of it as the “pull the plug” document.
It is important to understand that a Living Will is not a substitute for having a Health Care Power of Attorney that nominates a Health Care Agent to make health care decisions on your behalf if you are incapacitated.
Do I Have to Have a Living Will?
No, legally it is not required, but it is strongly recommended. For most individuals, their North Carolina Health Care Power of Attorney authorizes their Health Care Agent to make decisions regarding end-of-life care and termination of life support. However, while the Health Care Power of Attorney may authorize your Health Care Agent to make such decisions, typically, it does not provide your Health Care Agent with meaningful guidance regarding your wishes.
Shortcomings of the North Carolina Statutory Living Will
We are often asked why we do not use the North Carolina Statutory Living Will (also referred to as the North Carolina Advance Directive for a Desire for a Natural Death). We feel that the statutory form has several shortcomings:
- It is confusing to complete and we find that many complete the form incorrectly;
- It often does not provide any additional guidance beyond what was already stated in the Health Care Power of Attorney. For example, we find that most people complete the form to indicate that the Health Care Agent “may” withdraw life support—something that they’re already authorized to do under the Health Care Power of Attorney.
- It doesn’t really provide meaningful guidance. The North Carolina Statutory Living Will is extremely broad and only addresses very specific treatments under very specific end-of-life circumstances such as if you have an incurable or irreversible condition that will result in death within a short period of time, if you become unconscious and to a high degree of medical certainty you are not expected to regain consciousness, or you suffer from advanced dementia.
- It doesn’t provide meaningful guidance to your Health Care Agent about the multitude of other health care decisions, treatment options, long-term care scenarios, and similar that they may face.
Why We Use a Custom Health Care Power of Attorney, Living Will, and Other Supporting Documents
Our office uses custom Health Care Power of Attorney and Living Will documents along with several accompanying tools to provide your Health Care Agent, health care providers, and your family with meaningful guidance about your health care wishes. These documents have been carefully curated over time to keep up with the changing world of medicine and address unique issues relating to dementia, end-of-life, dying with dignity laws, and more. Unfortunately, the statutory forms and other common form documents such as Five Wishes fail to expand upon these issues.
Health Care Power of Attorney
A Health Care Power of Attorney allows you to nominate a Health Care Agent to make health care decisions on your behalf if you should become incapacitated. A well-drafted Health Care Power of Attorney should address modern medicine and laws by addressing issues such as right-to-die laws, dementia directives, discharging from hospital against medical orders, and more.
Our Living Will is based on recommendations from the Harvard Medical Journal and addresses several potential end-of-life care scenarios, allowing you to provide different instructions for your care wishes depending upon the severity of the situation. Rather than simply addressing CPR, mechanical breathing, and artificial nutrition and hydration, it also addresses other life-sustaining treatment options that you may or may not want, ranging from treatments that are considered by most to be quite invasive to non-invasive treatments like antibiotics and simple diagnostics. It also includes a Glossary of health care terms so you and your Health Care Agent understand the distinction between different treatment options.
The federal Health Insurance Portability & Accountability Act (HIPAA) is well-meaning law to protect our private health care information. However, the laws are so strictly enforced that it prohibits health care providers from sharing your medical information with anyone—including your spouse or family in an emergency. As a result, it has become more important than ever to have a HIPAA Authorization clearly communicating who your health care providers are authorized to communicate with about your health care—this includes not only your Health Care Agent, but those that may be handling your medical bills and insurance such as your Durable Power of Attorney or Trustee.
Letter of Instruction to My Health Care Agent
Our Letter of Instruction to My Health Care Agent provides you with a tool to think through other potential health care considerations including wishes regarding surgery, chemotherapy, alternative or experimental medicine, dying with dignity laws, family visitation, dementia directives, and long-term care wishes.
Personal Care Plan
Our Personal Care Plan tells future potential caregivers about you as a person including the little day-to-day preferences that can be easy to take for granted while we're healthy, but can suddenly become important if you can no longer communicate your wishes. For example, if you were to suffer a stroke and end up with aphasia, you may be fully aware of your surroundings but may have not be able to communicate your wishes to your caregivers. The Personal Care Plan addresses things such as what you like to eat and drink, hobbies, what you like to watch on television, what music you enjoy, and similar.
Personal Planning Portfolio
Our Personal Planning Portfolio also includes instructions for your Health Care Agent explaining their role and their duties and answering frequently asked questions that they may have such as when a Do Not Resuscitate (DNR) may be appropriate.
Ideally, a comprehensive estate plan should include long-term care planning. In the event that you should need long-term care, your plan should provide your Health Care Agent and family with clear instructions about your long-term care preferences and a plan for how to pay for such care.
Although it’s not pleasant to consider one’s potential future incapacitation, we strongly encourage you to share some detailed guidance with your Health Care Agent regarding your health care preferences. This will allow you to preserve as much independence and dignity as possible and will reduce stress and family disputes.
Get Started on Your Planning & Peace of Mind
We can guide you through the steps of creating a comprehensive health care plan and make the process as easy as possible for you and your family. A great place to start if you're looking to learn more is to attend one of our free public seminars or request our report, Estate Planning Pitfalls: The Twelve Most Common Threats To Your Estate & Your Family’s Future. If you'd like to discuss other ways to get started, call us at 919-586-8222 or complete our online contact form.
Related Links--Series on Health Care Directives:
How can I protect my children and their inheritance from lawsuits, creditors, bankruptcy and divorce?
Did you know that it’s relative easy for you to leave your assets to your children so that they are protected from future lawsuits, creditors, bankruptcy and divorce?
For example, let’s say one day your child causes a bad car accident in which a person is left permanently disabled. A few months later, a lawsuit is filed against your child for hundreds of thousands of dollars—your child’s entire inheritance.
Or, maybe your child receives his inheritance at age 25 and he or she is married. A year or so later, the marriage is in shambles and his wife files for divorce and walks out the door with half of everything—including your son’s inheritance.
Wouldn’t you feel better knowing that when that lawsuit or divorce came along, your child’s inheritance would be protected from it? This is something we can accomplish with appropriate trust planning provisions.
Click here to read more about Asset Protection Planning.
What is the gift tax? How much can I gift without being subject to gift tax? How much can I gift during my lifetime?
Below, we address how the gift tax rules work and the current exemptions. However, I want to caution you to first ask yourself what your objective is in making gifts. Sometimes well-meaning professionals, family members, and friends provide advice without being aware of the whole picture, including your unique circumstances and your overall estate. There are a few common traps that we see people fall into:
Gift Tax Trap #1: Future Nursing Home Care & Medicaid Eligibility
Just because the IRS allows you to make a gift, does NOT mean that Medicaid will allow the gift. Thus, if you are concerned about the possibility of future nursing home costs, you should consult with an elder law attorney before making major gifts. For Medicaid eligibility of help with nursing home bills, there are significant penalties for gifts made within 5 years of needing nursing home care. To read more, check out The Ultimate Guide to Paying for Nursing Home Care in North Carolina.
Gift Tax Trap #2: Outdated Tax Planning Advice
We still frequently meet with people that are working off of outdated advice. A long time ago their tax preparer advised them to make annual gifts to their family members in order to reduce the overall size of their estate and minimize potential estate taxes upon their death. The reality is that for many, this is no longer necessary (see below) and potentially can backfire dramatically if you eventually need nursing home care (see trap #1 above).
Gift Tax Trap #3: Liquidating Appreciated Assets
If part of the process of making your gift involves liquidating an asset that has significantly increased in value since you purchased it--for example, a house or a stock portfolio--you may be subjecting yourself to capital gains taxes that could be avoided if the property conveyed through your estate planning instead.
If any of these concerns apply to you, you owe it to yourself to contact an attorney--one with extensive experience with Estate Planning and Elder Law matters in your state.
Now, back to how the Gift Tax works...
Who Pays Gift Tax?
The gift tax is a tax on the transfer of assets from one person to another. The gift tax is a tax that is paid by the gift giver (referred to as the “donor”) rather than the gift recipient (referred to as the “donee”). Also, a gift does not constitute income for the recipient and is not subject to income tax.
What Is the Annual Gift Tax Exclusion Amount?
The gift tax law provisions for an annual gift tax exclusion—i.e., an amount that you can give away per person, without having to file a gift tax return or owing any gift taxes. As of 2019, the annual gift tax exclusion is $15,000 per person, per year (and the law provides that it be increased periodically to keep up with inflation). So, for example, if you are a parent with three children, you could make a gift of $15,000 to each child and not owe any gift taxes.
Furthermore, if you are married, a husband and wife can agree to “split gifts”—i.e., half of the gift will be allocated to each spouse. So, for example, if you are married and have three children, if your spouse agrees to gift splitting, you can gift up to $30,000 per child and it does not matter whether the assets came just from you or from both you and your spouse.
What Is the Lifetime Gift Tax Exclusion Amount?
In addition to the annual gift tax exclusion, there is also a lifetime gift tax exemption. Note that while the annual exclusion is per donee (i.e., gift recipient), the exemption is per donor—in other words you, as the gift giver, only receive one lifetime exemption.
It’s also important to understand how this exemption interacts with estate taxes. Under our federal estate tax system, every person is permitted to pass on a certain amount without being subject to estate taxes—this is referred to as the estate tax exemption, or in our office, we like to call it the estate tax “coupon.”
The lifetime gift tax exemption and the estate tax exemption are linked together, such that if you use a portion of your lifetime gift tax exemption, your estate tax exemption will be decreased dollar for dollar.
In 2019, the lifetime gift tax exemption and estate tax exemption are both $11.4 million (though this is set to expire on December 31, 2025 and is always subject to change by Congress. The tax rate on gifts above $11.4 million is 40%. For example, if your total estate is $12.4 Million, your estate tax exemption can be used to shelter the first $11.4M from estate tax (assuming you didn’t use your exemption during lifetime—see below). The remaining $1M would be taxed at 40% resulting in a $400,000 estate tax bill.
Estate Tax & Gift Tax Are Linked
The Estate Tax Exemption and the Lifetime Gift Tax Exemption are linked together. Any portion of your Lifetime Gift Tax Exemption used will reduce your available Estate Tax Exemption upon death. For example, if you use $2M of your lifetime gift tax exclusion during your lifetime, then upon death your estate tax exemption amount will be reduced by $2M.
Does North Carolina Have a State-Level Gift Tax or Estate Tax?
No. North Carolina repealed the state-level estate tax effective January 1, 2013.
Need to Discuss Your Tax & Asset Protection Planning?
In our years of experience working with thousands of individuals in the Wake County area, we find that asset protection planning is particularly important if any of the following apply:
- You own a home and have an estimated net worth of $1M or more;
- You own vacation property;
- You own rental property;
- You are high income-earning professionals;
- You are high income-earning business owners;
- You own a business with significant value.
Don’t leave yourself or your loved ones stuck dealing with the financial aftermath of avoidable taxes, a lawsuit, long-term care costs, or an unexpected tragedy can bring to your family. Contact Carolina Family Estate Planning today at (919) 443-3035 or fill out our online form to speak with someone about registering for a seminar or a Vision Meeting. You may also wish request a free copy Jackie Bedard’s book, Estate Planning Pitfalls: The Twelve Most Common Threats To Your Estate & Your Family’s Future.
What is an estate tax? How much can I leave without being subject to estate tax?
The federal estate tax is a tax imposed on the transfer of assets and property upon death. Think of it as an ‘everything’ tax—as in, everything you own will be counted including bank accounts, brokerage accounts, retirement accounts, real estate, personal property and automobiles, business interests, stocks and bonds and death benefits of any life insurance policies.
Life insurance benefits, in particular, tend to frequently be overlooked. Many people are told that life insurance proceeds are tax-free. And in some ways this is true, but it is also misleading. The beneficiary of your life insurance policy will not have to pay any income taxes on the death benefits that he or she receives, but the death benefits will count as part of your gross taxable estate.
So, for example, if you have a $1 million life insurance policy, you already have at least a $1 million gross taxable estate before we even start factoring in your bank accounts, real estate, retirement and other assets.
Every person is allowed an estate tax exemption, or in our office we call it your estate tax “coupon.” It is the amount that you can pass on without paying any estate taxes. Over the past few years, the estate tax exemption and the estate tax rate applied to amounts in excess of the exemption has been fluctuating pretty significantly:
Estate Tax Exemption
Top Estate Tax Rate
$5,000,000 or $0*
35% or 0%*
*Estate of decedents who died during 2010 have the choice of using either the $5,000,000 estate tax exemption/35% estate tax rate or $0 estate tax exemption/0% estate tax rate but they must use special modified carryover basis rules that impact income tax consequences.
So let’s go through an example to show you how this works. Let’s assume you are single and when you add up your home, bank accounts, retirement accounts, and a life insurance policy, you estimate that your total gross estate is $1.5 million. Under the current rules, if you were to die in 2012, your estate would not owe any estate taxes because you are under the $5.12 million estate tax exemption. However, if you were to die in 2013, you would owe $275,000 in estate taxes!
Here’s what the calculation would look like:
$1,500,000 total estate ˗ $1,000,000 estate tax exemption = $500,000 taxable estate
$500,000 taxable estate × 55% tax rate = $275,000 estate tax liability
I’ve heard there’s an unlimited marital deduction for estate tax purposes, why can’t I just leave everything to my spouse and not worry about estate taxes?
You heard correctly that there is an unlimited marital deduction, but to rely on it can potentially be disastrous depending upon your circumstances.
First, let’s look at the unlimited marital deduction—if you are a U.S. citizen you can leave an unlimited amount to your surviving spouse without owing estate taxes. So, for example, if Bill Gates were to die today and leave all of his billions of dollars of wealth to his wife Melinda, his estate could make use of the unlimited marital deduction and not pay any estate taxes. So far, it sounds pretty good, right? The problem is that everything will then be counted in the surviving spouse’s estate and will be subject to taxes.
Let’s go through an example. First, let’s assume that it’s 2013 and the estate tax exemption is $1 million. For our example, Bob and Susan are a married couple with $2 million total with $1.5 million being attributed to Bob’s retirement accounts, life insurance, etc. and the remaining $500,000 being attributed to the Susan.
Bob dies, leaving everything outright to Susan. He estate claims the unlimited marital deduction and no estate taxes are owned. Susan now has the full $2 million in her name. A few years later Susan dies and the entire $2 million is counted in her estate, but she only has a $1 million estate tax exemption. The end result? Susan’s estate pays $550,000 in taxes unnecessarily!!!
The good news is that a solid estate plan can include provisions to make sure that both spouses get full use of their estate tax exemptions so that as a couple, they can pass on more to their children without running into estate tax problems.
The key is that Bob should have left his assets to Susan in a special type of trust that would have permitted Bob’s estate to utilize his estate tax exemption and keep the funds from later counting as part of Susan’s estate. Different attorneys and financial advisors call these trusts by different names. In other offices, you might hear terms such as “credit shelter trust” or “bypass trust.”
Your surviving spouse can be the beneficiary of the trust, but it ensures that the assets in the trust will not have to be counted upon the surviving spouse’s death. If Bob and Susan had an estate plan that included such a provision, they could have easily avoided $550,000 in unnecessary estate taxes.