The New York Times did a wonderful article this week on complicated grief. At Phinney Estate Law we work with a lot of clients dealing with grief. I would agree with the expert quoted in this article that a factor that can make the difference between grief where people are still able to manage their lives and complicated grief is the circumstances of death including whether there was adequate planning by the deceased about end of life care to allow that process to be conflict free and directed. That is why we always include medical powers of attorney and advanced health care directives in our all of our planning and encourage clients to see this as part of the legacy they leave their family. If you would like more information on how to create this kind of planning, please contact us for a free 1/2 consultation at (206) 459-1908 or email@example.com.
1. Keep the original copy of your Advance Health Care Directive and other estate planning documents some place they can be easily found in your home - not your safety deposit box!
2. Give your chosen Health Care Agent a copy of you Durable Power of Attorney for Health Care and Advance Health Care Directive. Make sure that your agent knows where to find the original.
3. Give your doctor a copy of your directive, and make certain it is put in your medical records. If your doctor is not affiliated with any hospital you may also send a copy to the nearest hospital.
4. If entering a hospital or nursing home, take a copy of your directive with you and ask that it be placed in your medical records.
5. Some people choose to keep a card with directions to finding their directive in their wallet.
6. When medics enter your home in an emergency they will look in your bedside table, on your refrigerator door and on your bedroom door. You may want to leave a copy in one of these locations.
An Advanced Health Care Directive is a document that we recommend all clients complete. This is a guide for a patient’s agent(s) and doctors regarding what health care choices the patient would like to make if they can’t speak for themselves.
While doctors are not required to follow a directive, if they are unwilling to, they must make every reasonable effort to transfer the patient to a doctor who is willing to obey the instructions.
The statute recommends that directives include information about whether the patient would want resuscitation and/or artificial food or hydration if they were either terminally ill or in a permanent unconscious condition. In our experience these directives are more useful if they provide more guidance to doctors and families.
When working with clients who are not currently facing a terminal diagnosis, we ask them to consider various scenarios and decide what treatment philosophies they would want to guide their doctor and agent in making decisions about their care.
Questions? We can help. Contact us by email or call 206.459.1908 for more information.
A beneficiary is a named recipient of a gift.
The beneficiary designation is the document that names a beneficiary of a contract such as an annuity, life insurance policy, or retirement account. Beneficiaries can also be designated in a person's Last Will and Testament or in a Trust.
This is quite different than the more traditional heir...
Historically, heirs are the class of persons entitled to take or share, in whole or in part, any real property of an intestate decedent, now generally broadened to include all the property of an intestate decedent who hasn't named beneficiaries.
Instead having to abide by a document, heirs receive inheritance. For probate purposes, inheritance is receipt of property from an intestate decedent, by right of succession rather than by will.
For community property characterization or estate tax purposes, inheritance is receipt of property simply as a result of death.
Beneficiaries and heirs are not always the same people and do not necessarily have the same rights or receive their property in the same way.
To learn more about how to make sure those you want to inherit at your death receive what you would like, contact us to schedule a free 1/2 hour consultation at firstname.lastname@example.org
Here are some of the questions to think about for any person you are considering having serve in the role of caring for your child after you pass.
Remember: The perfect guardian may not exist. Don’t let that stop you from choosing the best of your options!
1. Does this person have experience in raising or caring for children?
2. Does this person share your core values about life? Would he or she model these for your child?
3. Does this person share your philosophy about parenting? Does he or she take a similar approach to discipline?
4. Does this person share your cultural and religious background so that he or she can carry on important traditions with your child?
5. Does this person have the emotional resources to take on the responsibility of raising your children?
6. Is this person easily affectionate? Would he or she deal well with a child who is experiencing grief?
7. Is this person young and/or healthy enough that he or she would be physically up to raising a child until your child reaches 18?
8. Does your child have an emotional relationship with this person to help your child to make this transition?
9. Does this person live near you so that your child could remain in the same school and/or maintain contacts with friends?
10. Does this person have ties to both sides of the family so that the child would have regular contact with extended family on both sides?
11. Would your child support your choice? Would this selection create conflict for your families?
12. Is this person in a stable relationship that would provide your child with a two-parent home?
13. If this person is currently closer to one child than the other, can he or she avoid playing favorites?
14. Will this person be able to afford to care for your children with the resources you can leave to care for them?
Choosing a guardian for your child is not always easy. However, planning ahead thoughtfully can save a lot of time and heartache in the case of an unexpected loss.
Want additional information about creating a plan for your family? Phinney Estate Law offers free community classes. We've love to speak to your group or organization. Click here to learn more.
Phinney Estate Law Attorney Jamie Clausen will be teaching a Continuing Legal Education (CLE) class on the topic "Collaborative Law 101" today, October 8, 2014, for the King County Bar Association Solo Small Firm Section. The CLE is scheduled from noon to 1 pm at the King County Bar Association offices at 1200 5th Ave, Suite 700 Seattle, WA 98101. The CLE is open and free for all members of the King County Bar Association. For more information contact the KCBA at (206) 267-7100.
Wondering what the Supreme Court decision not to take up the marriage equality means? The short answer is progress and continued confusion.
The Supreme court was expected this session to take up and rule on challenges to lower court ruling that found state laws that didn't grant marriage equality were unconstitutional. These rulings rested on a variety of grounds varying from the right of privacy to the best interest of children. By deciding not to take up the issue, the Supreme Court leaves those ruling intake and spread marriage equality.
The decision not to make a decision immediately effects five states in which federal appeals courts had already struck now bans on same sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, and Utah. In the case of Virginia, marriage certificates are being issued now. In other states it may take up to 30 days for the process to start.
Eventually it will also bring along North Carolina, South Carolina, West Virginia, Colorado, Kansas, and Wyoming as those states are in the same federal circuits. That means that as soon as someone files suit in those states challenging those state's bans on same sex marriage the courts will be bound by precedent to overturn those bans. Those suits are expected to be filed within days and be could be decided in the next few months. That means by that within a year we can expect same sex marriage to be legal in at least 30 states.
That still leaves 20 states without marriage equality. Such a patchwork approach leaves many gaps for same sex married couples with regard to rights to custody and the right to divorce as they move from jurisdiction to jurisdiction. Which is why we still encourage all same sex couples to complete a co-habitation agreement and follow up with step parent adoptions to make their rights portable even if they are legally married.
It also means that there are now a large number of states were same sex couples are free to marry but are not protected by anti-discrimination statutes so they can still be fired or denied housing or other rights crucial to actually protecting the rights of their families.
Most Court watchers thought that the Supreme Court would be either granting same sex marriage nationwide or endorsing bans that set the movement back. Instead it seemingly endorsed the slow patchwork movement toward progress. As MLK Jr said "The arc of the moral universe is long, but it bends towards justice." We are now eleven states closer.
If you have questions about how to best protect the rights of your family, please contact for a free consult on estate planning, relationship agreements, step parent, or adult adoption at email@example.com or (206) 459-1908.
For a helpful map of the impact of today's decision see this helpful map.
The most important decision new parents must make in creating an Estate Plan or updating an Estate Plan is who they want to take physical custody of their children if they should be temporarily disabled or die. This person can be the same person or a different person than the one who is selected to care for the child’s finances.
To make this choice, it is important to understand the circumstances in which this person would assume this role and what their duties and powers would be.
In Washington, if there are two biological or adoptive parents who are both willing and able to care for a minor child and both are taking part in raising the child, then if one parent dies the other will have the right to assume full custody of the child, whether the parents are still married or not. If both parents die or are temporarily disabled so that they cannot care for their child, any willing and able adult can come forward and the court must choose between them based on the best interests of the child.
The person who takes physical custody of your child is known as the guardian of the person of your child. They are in charge of choosing where your child lives, health care choices, and education choices. They are also the ones to take over the key intangible parenting responsibilities of providing attention and affection and providing social, ethical, and religious training modeling.
While parents do not have to name the same person in their wills to serve as guardians it is usually better for all involved if they can come to an agreement so that it isn’t left to fate based on who dies first. You must also decide whether to name a single individual or couple. If you select a couple, the court will decide custody as between them if they should later divorce.
Most important, the person must be willing to accept the appointment and should ideally be willing to be spend some time talking to you about what your expectations are and establishing a strong relationship with your child while you are alive and healthy. Don’t forget that this isn’t a draft. Ask the person you select to make sure they are able and willing to serve in this capacity.
Need some insight on the process of choosing someone? We're here to help! You can contact us via email or call 206.459.1908.
In Re: Marriage of Margaret Byerley provides new guidance on quasi-community property rules for unmarried couples
On September 16, 2014 the Washington State Court of Appeals, Division II issued a new opinion, In re Marriage of Byerley, that addressed the ways courts should determine whether homes lived in by unmarried couples should be treated as quasi-community property.
By way of background, Washington State has for many years had case law that allowed courts to treat property acquired by unmarried couples who were living in "intimate and committed" relationship as "quasi community property" and divide that property between them when that would be the most equitable outcome. These laws have applied to both same sex and opposite sex couples, but one of the public policy issues such cases seemed to be aimed at addressing was ways to allow same sex couple, unable to legally marry, to have their property divided at breakup or death in the same way married couples were allowed to do so. It has been unclear how strong the courts commitment to this case law would be with the legalization of same sex marriage and this case is one of the first in recent years to appear to take a less generous stance on quasi community property.
In Byerley, the couple were married and seeking a divorce. One of the disputed assets was a property purchased by the husband, before the marriage but around the time that the couple began living together in an intimate and committed relationship. The husband signed a purchase and sale agreement in July of 1996, took title in September of 1996, and began living in the house with his then girlfriend, soon to be wife, at that same time. The house was titled in his name alone and refinanced several times in his name alone. The couple used joint resources to pay the mortgage and other household expenses. The trial court found that the property had been acquired during the relationship and was to be treated as quasi-community property. The appellate court disagreed. It held that the property was "acquired" for purposes of determining its characterization on the date the purchase and sale agreement was signed, not the date the deed transferred. Therefore, it was acquired before the couple began living together and was assumed to be separate property absent evidence that the party who owned it as separate property intended to transfer it to the community.
It is not uncommon now for unmarried couples to live together in homes one of them purchased prior to the relationship. As joint assets are used to maintain the property and improve it, the nature of the property can become less clear and this can lead to serious problems when the couple splits or one dies. Couples wishing to avoid such disputes are often best served by setting out how that property should be treated in a co-habitation agreement that states what property will remain separate and what will be treated as community property. While this most recent case seems to be a bit of a reversal of the trend to find greater and greater rights to quasi-community property, it also shows how contentious and expensive such disputes can become.
If you are interested in finding out more about how to create a co-habitation agreement with your partner, contact us to schedule a free half hour consultation at (206) 459-1908 or firstname.lastname@example.org.
This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik.