Trying to plan your North Carolina estate? Get the answers you need to protect your family.

A Health Care Power of Attorney does not take effect until the patient's attending physician determines that the patient is no longer able to make informed health care decisions and is no longer able to clearly communicate his or her wishes to health care providers. At that time, the physician will call upon the Health Care Agent nominated in the patient's Health Care Power of Attorney to make medical and health care decisions on the patient's behalf.

Your Role and Responsibilities as Health Care Agent

If you are called upon to serve as Health Care Agent, you will be responsible for all decisions relating to my health care, long-term care, end-of-life care, and general well-being.

Co-Agents

In some instances, a Health Care Power of Attorney may nominate multiple individuals to serve jointly as co-Health Care Agents. If you are serving with a Co-Agent, then the Health Care Power of Attorney should provide specific guidance regarding how to proceed in the event that you and the other Co-Agent(s) disagree on a matter.

Authority

The full scope of your authority is set forth within the Health Care Power of Attorney document, but in general, authority includes:

• Receiving medical information that I would have a right to receive;
• Conferring with my physicians and all other health care providers;
• Reviewing my medical charts;
• Asking questions and receiving explanations from my health care providers;
• Discussing treatment options with my physicians and other health care providers;
• Consenting to medical treatments, tests, diagnostics, or similar;
• Refusing medical treatments, including expressing my wishes regarding end-of-life care and life-sustaining treatments; and
• Requesting consultations and second opinions.

In some instances, you may need to consult with the patient's financial decision maker (Agent under the patient's Durable Power of Attorney and/or Trustee of my Living Trust) regarding financial feasibility of health care, long-term care, or end-of-life care.

Responsibilities 

By serving as Health Care Agent, you have accepted a fiduciary duty to act in accordance with the patient's wishes and best interests to the best of your ability. At times, you may need to communicate and coordinate with the patient's Agent under a Durable Power of Attorney or if the patient has a Trust, the patient's Trustee.  To reduce the risk of likelihood of family discord with family members that may not agree with your decisions you should:

• Carefully read the Health Care Power of Attorney and all supporting guidance that the patient has provided;
• When making decisions on the patient's behalf, regularly review the patient's Health Care Power of Attorney and all supporting guidance provided;
• Consult with the patient's attorney as needed to understand your role and seek advice regarding carrying out the patient's wishes;
• Keep a notebook or record of all decisions made on the patient's behalf regarding the patient's health care and living arrangements;
• Keep copies of all medical reports or similar documents;
• Write down the names of all persons consulted with in making a decision such as health care providers, attorney, or similar.

Potential Questions for Health Care Providers

Every health care scenario is different. The following list is by no means exhaustive, but hopefully, it provides you with a helpful starting point:

• How will this care option help the patient improve or feel better?
• What do you define as a successful outcome for this care option? What is the likely success rate?
• Can this care option be done on a trial basis and then be re-evaluated? If so, what is the appropriate amount of time for the trial? If the trial does not appear to be successful, are you willing to stop the care at that time?
• What will this care option mean for the patient's quality of life?
• If I were to die, how might this affect the patient's death? (e.g., would it potentially require hospitalization instead of home care?)
• What are the potential side effects of this care option?
• What care option do you recommend and why?

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 Health Care Power of Attorney? Is It the Only Health Care Directive That I Need? What Is a Living Will? What Is a HIPAA Authorization? Why Is It Important? What is a DNR? What is a MOST? When Does a Health Care Power of Attorney Take Effect? What Are My Responsibilities?

Do Not Resuscitate (DNR) Order

A Do Not Resuscitate (DNR) Order allows a patient  (or their Health Care Agent on their behalf) to refuse cardiopulmonary resuscitation (CPR) attempts if the patient stops breathing or the patient’s heart stops. A DNR must be obtained from a physician and is written on a special form. It is important to understand that a DNR only applies to the decision to withhold CPR and does not apply to other life-sustaining treatments. In North Carolina, this form is color-coded (large red text on bright yellow-orange paper) and should be shared with all of the patient’s health care providers and posted prominently in the patient’s place of residence, such as on the refrigerator, for Emergency Medical Services (EMS). In the absence of a DNR signed by a physician, if EMS is called, they will be legally obligated to perform CPR if the patient has stopped breathing or if the patient's heart has stopped.

Medical Order for Scope of Treatment (MOST)

A Medical Order for Scope of Treatment (MOST) allows a patient (or their Health Care Agent on their behalf) to set forth his or her health care and end-of-life care instructions when faced with a life-threatening medical condition. A MOST must be obtained from a physician and is written on a special form. In North Carolina, the MOST form is color-coded (bright pink paper) and should be shared with all of the patient’s health care providers and posted prominently in the patient’s place of residence. A MOST form generally provides guidance regarding whether the following treatments should or should not be administered:

• Cardiopulmonary Resuscitation (CPR);
• General instructions regarding scope of medical treatment and whether it should include use of mechanical breathing, intubation, and similar;
• Antibiotics;
• Artificial Nutrition; and
• Artificial Hydration.

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 Health Care Power of Attorney? Is It the Only Health Care Directive That I Need? What Is a Living Will? What Is a HIPAA Authorization? Why Is It Important? What is a DNR? What is a MOST? When Does a Health Care Power of Attorney Take Effect? What Are My Responsibilities?

 

The HIPAA Privacy Rule under the Health Insurance Portability & Accountability Act went into effect in 2003 and includes strict rules prohibiting health care providers, health insurance providers and similar from sharing your health information—including prohibiting them from sharing it with your spouse or family in an emergency.

While the law is well intended to protect our privacy, it has come with the tradeoff of creating cumbersome burdens for family members who may receive the ‘silent treatment’ from hospitals and doctors that will not speak to them.

When you visit your doctor, you may be asked to sign a HIPAA form including naming an emergency contact. Many think that this is all that is required, but unfortunately, those forms give you a false sense of security. Those forms only apply to that specific hospital or doctor and some may expire after a certain period of time.

For example, a while back we had a couple visit our office to update their planning. The wife had recently undergone surgery at Rex Hospital. When she had entered the hospital for her treatment, she signed the appropriate forms, including a HIPAA Authorization that Rex was authorized to communicate with her husband. Due to some complications that arose, the woman ended up being transferred from Rex Hospital to Wake Med. When her husband attempted to talk to the doctors and hospital staff at Wake Med they refused to speak with him. The forms that the woman had signed before the surgery were specifically for Rex Hospital and did not apply to Wake Med.

In addition to issues with hospitals and doctors, HIPAA also can rear its ugly head when dealing with insurance and billing matters. If your Durable Power of Attorney or Trustee needs to contact the hospital with a question about a medical bill or if they need to change your health insurance plan, they also can get stone-walled by the HIPAA privacy rule.

In addition to a thorough Health Care Power of Attorney and Living Will, we recommend that all adults have a standalone HIPAA Authorization that clearly authorizes your health care providers to communicate with your Health Care Agent, your Durable Power of Attorney, your Trustee, and any other family members or close friends you wish to name.

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 Health Care Power of Attorney? Is It the Only Health Care Directive That I Need? What Is a Living Will? What Is a HIPAA Authorization? Why Is It Important? What is a DNR? What is a MOST? When Does a Health Care Power of Attorney Take Effect? What Are My Responsibilities?

In a previous FAQ, What Happens If I Die Without A Will?, I discussed North Carolina intestacy law and who would receive your property if you were to die without a will. 

Distribution of your estate without an estate plan is probably not what you would want to happen. The following are my Top 9 Reasons Why You Probably Shouldn't Rely On the North Carolina Intestacy Statues to Carry Out Your Wishes When You Die.

#1 If You Have Minor Children, the Intestacy Laws Do Not Provide a Means of Appointing a Guardian to Care For Your Children

When it comes to your children, I’m sure you take precautions as to who cares for them.  You ask around for recommendations of a reputable babysitter.  You research their school districts, teachers, coaches, etc.  So why would you want to leave it to the courts to decide who cares for your children after your death?

#2 If You Have Minor Children, I Do Not Recommend You Leave Property To Your Children Outright

Under North Carolina law, children are not allowed to own property.  As such, if property passes to a child directly, either under a will or under the intestacy laws, the courts will appoint someone to manage the property on behalf of your child.  This process can be time consuming, frustrating and costly.  The person appointed must file an annual accounting each year reporting (to the penny) all money into and out of the children’s accounts.  While this might seem like a reasonable protection, the result is that it often binds the hands of a surviving spouse or guardian that is caring for the children, for example, making it difficult to handle such day to day responsibilities such as paying mortgage, utilities, educational expenses, etc.  It is instead recommended that you include a trust for minors in your will or have a separate trust agreement to provide for the management of the children’s property.  Such a document can be drafted to protect your children while still allowing flexibility to the surviving spouse or guardian.

#3 Problems Frequently Arise In Blended Families

In families with step-parents or step-children, certain family members that you do or do not want to be included may not receive the treatment you would like.  For example, if you are a step-parent that would like some of your property to pass to your step-children but you have not legally adopted the step-children, the step-children will not receive anything via intestacy.

#4 Couples Who Don't Have Children Usually Want Their Spouse To Receive Everything

In my experience, most married clients without children want to leave everything to their spouse.  However, under the intestacy laws, their parents would actually receive a substantial share of their possessions.

#5 Unmarried People May Not Wish to Leave Everything To Their Parents

Again, in many instances, unmarried persons would instead prefer to leave assets to their siblings, nieces and nephews, a friend, or a charity. Please note: North Carolina State Law does not recognize the concept of a "common law" marriage.

#6 The Intestacy Distribution Scheme Does Not Include Charitable Gifts

Many clients, even if it is only a small amount, like to leave a gift to charity.  The intestacy distribution scheme does not allow for such.

#7 Heirlooms and Sentimental Possessions May Be Sold

Often people have special family heirlooms, family vacation homes or other sentimental possessions, that they want to ensure remain in the family and are not sold upon their death.  If the property passes through intestacy, there is a greater likelihood that such property may be sold.  Having a valid will can ensure property treatment of such sentimental property.

#8 Equal May Not Be “Fair”

The intestacy statutes lean towards equal division of property to those within the same generation.   For example, equal division among parents if you property passes to your parents, or equal division among children if your property passes to your children.  The reality, for many, is that an equal distribution may not be a “fair” distribution.  For example, parents with adult children often use wills to leave unequal amounts to their children due to particular circumstances.  The parents may choose an unequal distribution because during lifetime they spent disproportionally more money putting one child through graduate school.  Another common reason is that one child may have stayed close to home and taken on the caretaker role as the parents aged.

#9 Special Circumstances Will Not Be Factored In

There are many, many reasons why intestacy will not fit most people’s wishes.  Intestacy statutes are drafted with a “one size fits all” mindset, and just like one size fits all T-shirts, the intestacy laws often end up fitting very few people properly.  The laws cannot take into account each person’s particular circumstances, so special situations will not be adequately resolved under the intestacy laws.  Such special circumstances might include the need to provide for a special needs child, a pet, a business ownership interest, a close friend, charity, and so on.

You Can Do Better!

Every day we are working with families in the Raleigh-Durham-Cary area to put together plans that preemptively address not only who gets what stuff, but how to carry on your values when you no longer can through services including:

• Asset Protection to help protect the inheritance your heirs receive from potential divorce, lawsuits, or creditors;
• Long-term care planning, to make sure you and your spouse can have the best life possible in your later years;
• Children's Safeguard Planning, if you have minor children, to make sure they don't end up in Child Protective Services if something happens to you unexpectedly; and
• Special Needs Planning, to make sure your loved ones are cared for when you no longer can provide for them.

With Estate Planning, things can go very right... or they can go very wrong. For more information on how Carolina Family Estate Planning can help you get it right, call our office at 919-443-3035 to discuss next steps, contact us online, or reserve your seat at an upcoming seminar. 

For 2019, the Federal estate tax exemption amount—the amount that you can pass free of federal estate taxes—is $11.4 Million.

This tax law is set to expire on December 31, 2025 and revert to prior the prior level of $5 Million indexed for inflation. The estate tax exemption can also be changed by Congress at any time. As a result, it’s prudent for high net worth individuals to establish estate tax planning to “lock in” the currently high estate tax exemption before the rules change again.

The applicable estate tax rate on assets in excess of the estate tax exemption 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.

North Carolina repealed the state-level estate tax effective January 1, 2013.

Estate Tax & Gift Tax Are Linked

Keep in mind that 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.

Estate Tax & Generation-Skipping Transfer Tax (GST Tax)

When the estate tax was first created, many affluent families (e.g., the Rockefellers, Vanderbilts, etc.) began using trusts to shelter assets from estate taxes for multiple generations by setting up their estate plans such that some assets would “skip” their children and pass directly to grandchildren or younger beneficiaries.  Here’s how it would work: Grandpa realizes that then he leaves his estate to his children, it will be subject to estate tax. And then later, when Grandpa’s children die and pass the wealth down to the grandchildren, it will be subject to estate tax again (as part of the child’s estate). So Grandpa decides that he has enough wealth that he will just leave part of his estate to his children, and then for the rest of his estate he’ll “skip” his children and leave it directly to the grandchildren, thereby sheltering the money from being taxed as part of the child’s estate.

Congress eventually got tired of these generation-skipping shenanigans and added the Generation-Skipping Transfer Tax to the law books. Essentially, if you leave assets to grandchildren or younger beneficiaries in an effort to “skip” a generation of estate taxes, there is a secondary tax that kicks in to make it as if you had paid estate tax at each generation.

The Federal generation-skipping transfer tax (GST Tax) exemption is currently the same as the estate and gift tax exemption: $11.4 Million.

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.

 

It is free! We think it is very important to educate our community and this is one of the many ways that we do this. Feel free to browse our free materials and information on our website or at our Learning Center while you are in our office.

 

The workshop last two hours. Don't worry, the time flies by! You do not need to bring anything with you. We provide everything you need, plus light refreshments.

Once you have attended the workshop, our office will follow up with you to discuss your initial consultation with Jackie and see if it is appropriate to schedule an appointment to explore how we can assist you.

Yes, of course! We encourage you to bring along anyone on your team. Due to limited seating, we just ask that you register each attendee so we can ensure enough seats for all attendees.

There is a lot of information packed into the workshop! We find that it is difficult for clients to relay the stories and their importance once they leave our office. In the past, when we've worked with clients where only one spouse attended the workshop, we found that the non-attending spouse was at a disadvantage during the planning process and were more likely to feet a bit overwhelmed.

We find that when people attend a workshop before their initial meeting, it's a much less overwhelming process. Rather than Jackie trying to teach you a lot of information during the meeting, she can instead focus on helping you uncover your planning goals. We feel so strongly about workshop attendance that we waive the initial consultation fee if you attend a workshop first.