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IBA: Estate Planning 101 for Lawyers – Are You Prepared?

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By Rebecca Geyer, Hollingsworth & Zivitiz

Rebecca Geyer Geyer

As an estate planning attorney, I regularly counsel clients about disability and death planning. If truth be told, however, I’m not always good at following my own advice. Attorneys procrastinate as much as the clients we represent, too often getting caught up in our daily endeavors and failing to make sure our own affairs are in order. As fall approaches, I’m making time to review my estate planning, and I encourage you to do the same. Here are a few issues you might consider:

Wills and Trusts. If you have yet to do so, I strongly recommend taking the time to put a will or trust in place. Wills and trusts provide a mechanism for you to designate how and to whom your assets will pass following your death and who should administer such distribution. There are numerous ways to plan for the division and distribution of your assets to address potential concerns such as education planning, children with special needs, long term care concerns, or a beneficiary’s poor financial management skills. If you have minor children, your estate planning should address the issue of guardianship to ensure your children are raised by the people of your choice should you die. Although a will should address guardianship, don’t overlook Indiana’s new standby guardian statute (Ind. Code § 29-3-3-7) which allows the parent of a minor or the guardian of a protected person to designate a standby guardian for the minor or protected person in a written declaration. The designated standby guardian begins serving as guardian of the minor or protected person upon the death or incapacity of the parent or guardian. The statute is intended to ensure that a minor or protected person has a legal guardian in place until a petition for guardianship of the minor or protected person can be heard following the parent’s or guardian’s death.

Planning for Disability. Just as important as wills and trusts are documents designating someone to make financial and health care decisions on your behalf should you be unable to make such decisions yourself. A Power of Attorney allows you to designate someone to handle financial transactions for you should you be unable to act on your own behalf. Many married couples assume a Power of Attorney is unnecessary if their accounts are owned jointly as the non-disabled spouse can continue to access funds and pay bills. While this is true, a joint owner does not have authority to sign for you to sell or refinance an asset without legal documentation granting them such power. Most people also own at least one account, such as a retirement plan or life insurance policy, in their individual names, making a Power of Attorney necessary so that someone has authority to act on such accounts if the owner becomes disabled. Without a properly executed Power of Attorney, your family may be left with no choice but to pursue legal guardianship to access your finances in the event of your disability.

Health care documents are also extremely important. An Appointment of Health Care Representative or Health Care Power of Attorney allows you to designate someone to make medical decisions for you if are unable to speak for yourself. A properly designated HIPAA Release is also imperative. Since the passage of the Health Insurance Portability and Accountability Act (HIPAA), most medical providers will not speak to your family members about your medical condition without a HIPAA release so as not to violate your privacy rights. Indiana law also allows you to determine whether you want your life artificially prolonged by tubes and machines in a Living Will or Life Prolonging Procedures Declaration. If you have specific wishes for your funeral, you might also consider executing a Funeral Planning Declaration.

Review Your Existing Plan. If you have an existing estate plan, when was the last time it was reviewed? Numerous changes in Indiana and federal law may result in unintended consequences if your estate plan is not updated. Outdated estate tax clauses may require the unnecessary division of your assets at your death or result in loss of control for the surviving spouse. Reviewing the titles to your assets is also a must. Even with properly executed estate planning, your assets may not pass the way you envision. The title of your assets trumps your estate planning documents so carefully review each account to ensure you know exactly how it passes at your death. You may wish to take advantage of Indiana’s expanded Transfer On Death Act to transfer assets such as bank accounts, real estate, and motor vehicles at death without probate. If you have a living trust in place, are your assets titled in the trust’s name? Non-probate assets such as retirement plans and life insurance policies pass by beneficiary designation. Do you have primary or contingent beneficiaries named on such accounts? Failing to name a beneficiary on your life insurance policy may subject the proceeds to Indiana inheritance tax should the policy become payable to your estate. If you’ve set up a trust for your minor children, have you changed the beneficiary designations on your insurance policies and retirement plans so that such assets flow into the trust at your death? If your minor children are designated as the beneficiaries of your accounts, Indiana law will require a guardianship or protective order to collect such account proceeds (if they exceed $10,000), and they may pass to your children at age 18 instead of under the terms of the trust you established. You should also consider the income tax implications of your beneficiary designations. Proper planning can maximize the amount of retirement assets passing to your beneficiaries while deferring the payment of income tax over the course of such beneficiaries’ lifetimes.

Review Your Practice Contingency Plans. Do you have plans in place for your legal practice should you be unable to work or die? Now is the time of year we pay our annual dues to remain active lawyers in the state of Indiana. Part of the annual registration process is the designation of an attorney surrogate to cover your practice should you become disabled or die. Have you considered who this individual should be for your practice? If you are a solo practitioner, this issue is of extreme importance. Who will handle your cases should you be unable to work or pass away? Do you have disability insurance in place to cover your overhead expenses and provide you with income if you are unable to practice law? Taking time to consider these issues now can help alleviate some of the stress and uncertainty when the unexpected occurs. So practice what we preach and get your own planning in order this year.•

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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