Martin M. Shenkman, CPA, JD, MBA, PFS, AEP (distinguished), estate- and tax-planning attorney based in New York City. He is coauthor of Powers of Attorney: The Essential Guide to Protecting Your Family’s Wealth. ShenkmanLaw.com
Living with a chronic health condition— such as Parkinson’s disease, early-stage dementia, multiple sclerosis or a history of strokes—might require that someone else makes health-care and financial decisions at some point. New options can help with this difficult process.
You might already know that an estate-planning attorney can prepare documents that detail your health-care preferences when you cannot make them yourself…and safeguard your assets during your life, not just after your death. However, the standard documents—living wills and powers of attorney—are not always effective.
The newer options offer potential solutions. These options are especially important if you suffer from a health condition that might leave you incapacitated for extended stretches. Because a major health issue could arise without warning, these documents are worthwhile for everyone.
A Supplement to a Living Will
You may already have a living will—a document that lays out your health-care treatment preferences when you become unable to make decisions for yourself. This document might, for example, explain whether you would want mechanical ventilation and/or a feeding tube if there is no chance that you ever again would be able to live without these.
Problem: Living wills often focus on end of life, and they are not always properly enforced. Health-care providers sometimes fail to realize that a patient has a living will until the patient’s family brings the document to their attention—by which point unwanted treatment already might have been provided. A health-care proxy, also called a medical power of attorney, could help here—it authorizes someone to make decisions for you when you can’t. But what if you have no one to name…or if the person you do name is not available when you require treatment?
Better option: A Physician Orders for Life-Sustaining Treatment (POLST) details the health-care treatments that you would and would not want, much like a living will. But unlike a living will, a POLST is included in your digital medical records, which can be accessed by all health-care providers. It doesn’t require the physicians to contact a family member to make decisions—your wishes are stated in the POLST. That greatly improves the odds that health-care providers know about it and avoids the delays and possible issues of contacting a family member to make a difficult decision. There’s no harm in also carrying a copy of your POLST form and/or providing copies to your health-care providers and medical facilities where you receive treatment, though this is not necessary.
This form is not drafted by an estate- planning attorney—you fill it out with the assistance of your doctor or possibly your nurse practitioner or physician’s assistant. Keep a copy with your estate-planning documents so that it is readily available.
POLSTs have been around for several years but only now are becoming widely available. Nearly every state currently has or is developing a POLST program. Visit POLST.org/programs-in-your-state for details…or ask your primary care physician or other health-care professional for details.
A POLST does not necessarily replace a living will. POLSTs generally have been used to detail the patient’s treatment preferences for a specific illness or late-life condition. A living will, despite its flaws, might offer greater flexibility to address additional, unforeseen health conditions as well. Some in the estate-planning community do believe that POLST forms can be used more broadly, so it is possible that these might replace living wills entirely for some people in the future. For now, however, the safest solution for people who suffer from serious health problems or chronic conditions is to have both.
In Addition to a Power of Attorney
Many people have drafted a power of attorney with the help of an estate-planning attorney. This document designates someone who will manage your personal business in the event that you are not able to. Typically, this person is a close relative, such as a spouse or descendant. Having this document in place is considered especially important for people who have potentially debilitating chronic health conditions. For these people, the odds that someone will have to act on their behalf is high.
Problem: Not everyone has a close relative qualified to serve in this crucial role. This person must be financially savvy, willing and able to find the time to manage your affairs and honest enough to be trusted with your assets. Unfortunately, it’s not uncommon for powers of attorney to be used to commit financial elder abuse.
Even if the person you select to manage your affairs is capable, willing and honest, powers of attorney can be difficult to use. Financial institutions are wary of being sued for transferring control improperly, so they might insist on legal department reviews and other steps before allowing your agent to act on your behalf, inhibiting his/her ability to act promptly.
Better option: Instead of a power of attorney, use a revocable living trust, which allows you to better safeguard against financial abuse using several methods, such as appointing an institution as trustee. With a revocable living trust, some of your financial assets—but not retirement assets, annuities or other restricted assets—are transferred to a trust. Then the trustee you name manages the assets when you cannot. Depending on your condition, this trustee might be a co-trustee who works with you when you are able to manage your own affairs…or a successor trustee who takes over only as needed, based on criteria that you and your estate-planning attorney have written into the trust. In addition to the trust, you can use a power of attorney for assets you cannot transfer to the trust, such as an IRA.
Revocable living trusts are not an entirely new planning tool, but historically they have been used mainly to avoid the costs and hassles of probate for multimillion-dollar estates. A new approach by financial institutions makes them a suitable option for managing assets should you not have an appropriate friend or family member to designate as your trustee. Several large, reliable, low-cost financial institutions now provide professional trustee services with fees low enough that they are accessible for estates of relatively modest size.
Examples: Fidelity Personal Trust Company (0.45% fees on the first $2 million* in the trust with a $4,500 minimum annual fee)…Charles Schwab Personal Trust Services (0.5% on the first $5 million* with a $5,000 annual minimum fee)…Vanguard National Trust Company (0.55% fees on assets below $5 million* with a minimum annual fee of $3,500 but also a minimum account balance of $1 million).
That still may seem like a lot of money, but having a professional available may be well worth the cost, especially for someone with a chronic condition.
Other advantages of having a revocable living trust…
You can obtain a tax ID number for a trust rather than list it under your Social Security number. This tax ID number won’t be in dozens of files and databases the way your Social Security number is, reducing the odds that an identity thief will be able to gain access.
You can name a “trust protector” for a revocable living trust. This trust protector can be given the power to replace a trustee who is not doing a good job—an added level of checks and balances not possible with a power of attorney. An accountant you’ve worked with for years or a family member who is not a beneficiary could be ideal for this role.
Speak with your estate-planning attorney about whether a revocable living trust or a power of attorney makes more sense for you. When you do, be honest with yourself and your attorney about the level of faith you have in the loved one you have named to act on your behalf in your power of attorney. Costs could be a factor, too—in addition to the fees charged by institutional trustees, expect to pay at least a few thousand dollars to set up a trust and several hundred dollars to a tax preparer to file a return for the trust each year.