Our Estate Planning Frequently Asked Questions

Our estate planning clients have a lot of important questions. We share the answers to some of the more common questions we get in these FAQs.

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  • Why do you recommend a healthcare power of attorney over a living will?

    Living Will Paperwork With GavelA well-meaning family member or even your doctor may advise you to create a living will to document your wishes for your care if you are unable to make treatment decisions for yourself. However, while a living will is a legally binding document that will be respected by caregivers if you become incapacitated, the estate planning attorneys at Littlejohn Law recommend that you instead draft a healthcare power of attorney.

    Why Is a Healthcare Power of Attorney Better Than a Living Will?

    A living will declaration is a simple document that is often available as a free, fill-in-the-blank form. In Ohio, a living will does the following:

    • Documents your wish that life-sustaining treatment be either administered or withheld if you are unable to make informed medical decisions. If you indicate that you want treatment to be withheld, this document effectively serves as a Do Not Resuscitate (DNR) order.
    • Indicates if you wish to donate your organs.
    • Provides the names of people you would like to be contacted in the event of your death.

    Under Ohio law, a living will declaration is applicable only to individuals in a terminal condition or a permanently unconscious state.

    What this document cannot do is take into account the specific circumstances of your illness or incapacity. A healthcare power of attorney, on the other hand, is a much more flexible option. With this document, you designate a trusted person, known as the agent, to make healthcare decisions on your behalf. The advantages of this option include the following:

    • Your agent can assess your current situation and, in consultation with medical professionals, make decisions about your care.
    • You do not have to be in a terminal condition or permanent unconsciousness in order for your agent to make decisions.
    • You can make your wishes known and give additional instructions regarding organ donation, end-of-life care, and more in the healthcare power of attorney document.

    Healthcare powers of attorney allow for better decisions to be made on your behalf and are most effective when you discuss and update your wishes with your agent when you are healthy.

    Talk to Our Team About Your Options

    Regardless of your age or the current condition of your health, we recommend including a healthcare power of attorney in your comprehensive estate plan. When we meet to discuss your plan, we will be happy to explain the limitations of a living will and the benefits of a healthcare power of attorney. Fill out the form on this page or call our office to talk to a member of our team today. It's never the wrong time to think about your estate plan!

     

  • Ohio Valley Law Firm answers Frequently Asked Questions about Trusts.

    How much time will be devoted as Trustee? 

    Once a Trust is established do we need an Attorney to move assets?

    What if the 5 year look-back changes, will I be grandfathered in with my assets?

    Can I downsize and get a smaller house? 

    Can the Trustee get sued for something that’s wrong with my house when they decide to sell it?

    Q: How much time will be devoted as Trustee?

    In general, Trustees have limited daily involvement when it comes to Trust. Most of the time devoted by a Trustee arises when a beneficiary decides to receive withdrawals or a grantor wants to add an asset to the Trust. Other than that a Trustee is generally on call or waiting until someone needs something.

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    Q: Once a Trust is established do we need an Attorney to move assets?

    No, a good estate planning attorney will sit-down with the Trustees and explain to them their duties and responsibilities as a Trustee. Once the Trustee gets the idea of how it works the Trustee can handle the day-to-day aspects of the Trust, if any are required. In this situation, your estate planning attorney will only be used in cases of emergencies or when the Trustee has no idea what to do.

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    Q: What if the 5 year look-back changes, will I be grandfathered in with my assets?

    The 5 year look-back is exactly what it is a 5 year look back. In essence, the government will look-back to the last 5 years to determine what assets that you had. But there is no-grandfathering if the law changes.

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    Q: Can I downsize and get a smaller house? And if so does the 5 year look-back start again?

    Yes, you can get a new house. But remember once your assets are in the Trust, they are owned by the Trust. Therefore, the Trustee would have to decide to get a new house for you. The 5 year look-back would not start again because you are not buying a new house or taking possession of a new asset, but rather it is the Trust by way of the Trustees that are doing so.

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    Q: Can the Trustee get sued for something that’s wrong with my house when they decide to sell it?

    In general, courts will not hold a Trustee liable for something that they did not know. However, if the Trustee actively participated in the concealment or some sort of fraudulent activity then the Trustee could be held responsible.

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