901.372.5003 24/7 Live Call Answering
August 31, 2016 In Estate Planning

IRS Eliminates Valuation Discounts for Family Owned Entities: TAKE ACTION NOW!

 

 The IRS Has Issued Regulations Limiting or Eliminating the Use of Valuation Discounts.

One of the key benefits of Family Entities over the last several years has been the opportunity for significant valuation discounts for estate and gift tax purposes for clients with taxable estates. Last year, we advised  in our Estate Planning Newsletter that we expected the IRS to issue regulations limiting or eliminating the use of valuation discounts for family owned or controlled entities. Earlier this month, the IRS finally issued those proposed regulations. The  regulations are set to virtually eliminate the use of family entity valuation discounts as an estate planning tool.

family entity valuation discounts estate planning attorneyHowever, there is still time to take advantage of valuation discounts. But, you need to act now. 

What is a Family Entity?

A Family Entity is exactly as it sounds — a company (limited liability company, corporation or partnership) that is owned and controlled by the organizer and the members of his or her family.

What Are Valuation Discounts?

Traditionally, ownership interests of a Family Entity have been valued at a reduced or discounted value. The basis for the discount is lack of control, lack of marketability, and other factors that result from the entity structure.  An ownership interest in a Family Entity is often valued at 20%-40% less than the actual fair market value of the underlying asset. This means that you could transfer an asset to a Family Entity and then later transfer your ownership interest in the Family Entity (either through lifetime gifting or at death) at a value significantly less than the fair market value of the underlying asset.

The use of family entities to obtain valuation discounts is a well-tested Estate Planning tool. Other methods of Estate Tax Planning often do not provide the same benefits. Because this method of estate and tax planning has proven so effective, it is imperative that clients with potentially taxable estates take advantage of Family Entity Valuation Discounts before the new IRS regulations take effect.

What’s the Hurry?

Entities created and funded prior to the enactment of the new IRS regulations will be governed by the current (more favorable) rules. But, there is very little time left to take advantage of Valuation Discounts. While it is not yet clear exactly when the new regulations will become final, many Estate Planning Attorneys believe they could become effective as soon as December 1, 2016.  No one can be certain of the date, which is why you should act now.

Our Advice to You

  • We recommend that any client wishing to take advantage of Family Entity Valuation Discounts as an Estate Planning strategy do so well before December 1, 2016.
  • If you already have a Family Owned Entity, this is a good time to consider whether additional gifts or sales of ownership interests would be beneficial in order to maximize the value of the gift or sale.
  • Anyone with a current Family Entity should contact us  to discuss taking further advantage of the current IRS regulations.
  • If you are concerned about the value of your estate for Estate Tax purposes or  if you are interested in learning more about Family Entity Valuation Discounts, please contact us at (901) 372-5003 or email us here so we can determine if a Family Entity can yield significant tax and other benefits for you and your family.
July 18, 2016 In Estate Planning

Digital Assets: Who can access my online accounts if I die?

Digital Assets: Who can access my online accounts if I die?

digital assets estate planning lawyerChances are, if you are reading this Blog Post, you own Digital Assets and have one or more online accounts.  As Estate Planning Lawyers, we continue to see changes in the law to address our increasingly tech-savvy culture. The use of electronic information has continued to play a larger role in the Estate Planning and Administration we do for our clients.

Have you ever thought about what might happen to your Facebook account if you died?  Who would get your iTunes library and how would they access it?

Tennessee Legislature Passes Revised Uniform Fiduciary Access to Digital Assets Act

The Tennessee legislature recently passed the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), which became effective July 1, 2016. The intent of the Act is to aid in a Fiduciary’s ability to access an individual’s Digital Assets.  A Fiduciary is someone either appointed by a person or a Probate Court Court to act on behalf of the person in the event of incapacity or death.  A fiduciary may be appointed by a person in a Power of Attorney or Last Will and Testament, or by a Court in a guardianship, conservatorship, or intestate estate proceeding.  The Act also attempts to protect a person’s privacy, as it also allows the person to restrict a fiduciary’s access to digital assets, and provides additional safeguards by allowing the Custodian of the asset to request certain documentation before providing requested information. A fiduciary granted access to digital assets is held to a fiduciary standard under the Act, requiring the fiduciary to act in the best interests of the person with a duty of care, loyalty and confidentiality.

What are Digital Assets?

The Act defines Digital Assets as “an electronic record in which an individual has a right or interest,” and this “does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”  The Act does not necessarily grant the fiduciary access to a person’s cell phone, computer, tablet, etc., but this class of assets includes a wide variety of items, including:

  • assets from Twitter and Facebook accounts
  • assets such as PayPal accounts
  • iTunes accounts
  • Accumulated frequent flyer miles
  • Online banking or trading accounts.

How is Access Granted?

The Act lays out specific requirements as to how the fiduciary must go about requesting access to the digital assets depending on the nature of the fiduciary representation, the type of document (if any) granting the fiduciary the authority to access digital assets, and the depth of the information needed by the fiduciary.

What Should I do about my digital assets and online accounts?

Granting a fiduciary the authority to access your digital assets (or limiting their access) should be done with specificity.   You can and should address these issues in your Last Will and Testament and Power of Attorney.  You should also make sure that any usernames, passwords, and account numbers for your digital assets and online accounts are in a safe place so that your fiduciary can get this information and provide it if requested by a custodian (such as the bank, Facebook, etc.).

If you are concerned about your appointed fiduciary’s current potential access to your digital assets, you should consult with an attorney experienced in fiduciary matters, who can review the relevant documents and properly advise you about your specific situation.

What if I need access to someone else’s online accounts?

If you are currently in a fiduciary position and you need to obtain access to that person’s digital assets or records or online accounts, please be sure to consult with an estate planning attorney to find out how you should go about obtaining this information/access, because the procedures can differ based on your fiduciary role, the powers you have been granted, and the type of information you are trying to obtain.

Let us help you

Our Estate Planning Attorneys can help develop a digital assets plan to best suit your individual needs.  Visit our website to learn more about our work and call us today at 901-372-5003.

July 11, 2016 In Contracts, Estate Planning

Joint Property Ownership Pitfalls and Solutions

Joint Property Ownership Pitfalls and Solutions

joint property ownershipOur law firm has worked on a couple of cases lately involving joint property ownership; that is, property owned by a group of several individuals. Owning a piece of land or real estate with a group of individuals or family members can lead to many problems, a few of which we will discuss here.

What Happens to Real Estate When a Person Dies?

In Tennessee, real property typically passes outside of Probate in accordance with the publicly recorded property documents in the County where the property is located.  A person can also plan for the disposition of real property in a Will or Trust.  If you die owning real property in your sole name, though, it can cause significant problems for your Beneficiaries that can be avoided by proper planning.

In both cases I mentioned above, the group of individuals came into joint property ownership because of intestate succession (i.e., dying without a Will).  You may think that you do not need a Will because your property will pass to your heirs regardless.  However, there are many problems and burdens that your heirs will face if property passes to them through intestate succession.  Here’s what can happen if a landowner dies without a Will:

  • Land may pass to heirs who do not wish to be landowners.
  • Land may pass to heirs who do not know that they are now landowners (i.e. lost heirs).
  • Land may pass to heirs who are not prepared for the responsibility of owning real estate (i.e. paying real estate taxes, maintaining insurance, upkeep of the property)
  • If there is a mortgage, payments may be required very soon after the death of the original owner and before any inherited owner has a chance to determine how to address the new ownership – i.e. sell the property, allow it to be foreclosed upon, etc.
  • The title to the property will be unclear and extra effort will be required to determine all legal owners in a joint property ownership situation. It can be very difficult to locate heirs and to determine with certainty who all owns a piece of property, especially if some of the original heirs have died, or if the family isn’t in close contact or is spread across the country. A title search may be required, and title searches can be expensive.

Increased Costs for Inherited Owners

When a piece of property passes through intestate succession, when ownership is unclear, or when a piece of property is owned by a large group of individuals, there will be extra expense involved when the property is sold. As a general matter, the entire sales process will take longer than usual. Each separate legal owner must be found and consulted with.  Then, each owner must agree to all parts of the sale process (i.e. negotiating the price, negotiating and completing repairs, and signing all required paperwork).  It can be very difficult getting a group of family members or individuals to all cooperate and agree during the course of a real estate transaction.

Inherited owners who want to sell property can expect to have to do some additional work with the buyer’s title company such as filing probate documents, getting releases from TennCare, and dealing with potential creditors of the deceased person.  A title company may require proceeds to be escrowed for up to a year after the deceased person’s death.

Legal Issues of One Owner Can Affect Other Owners

Inherited and multiple owners can also come with their own personal problems.  A judgment lien or a bankruptcy filing of one inherited owner will immediately attach to the inherited property, which could cause delays and problems for any co-owners wishing to sell the property.

Ways to Avoid Common Problems of Joint Property Ownership

If you must own property with a group of individuals or family members, or if you desire to pass property to a group of people, there are ways you can accomplish joint property ownership which lessen the burden and expense involved. Speak with an Estate Planning Attorney or Property Lawyer about the best way to achieve your personal goals. For example, more effective “joint ownership” can be achieved in the following ways:

  1. Own as Joint Tenants with Rights of Survivorship. This type of ownership is common with married couples, but it can also be used with any individuals wishing to create this type of joint tenancy.  Upon the death of one joint tenant, the remaining tenant owns the property outright.  This results in protection from a debtor-tenant’s creditors because liens can only attach to the right of the debtor-tenant, which is nothing more than a “potential survivorship right.”  This protection ends if the non-debtor tenant dies and the debtor- tenant then owns the property outright.  One negative of this type of ownership is that the property will only pass to the other joint tenant, so the Estate of the first to die loses any equity to pass on to other individuals.  In addition, potential gift tax issues may arise since the Grantor is “gifting” rights to the property to the person they are creating a joint tenancy with.
  2. Own the Property in a Limited Liability Corporation.  Ask a business organization attorney about property ownership through an LLC. The rights of the members will depend on the structure of the LLC. Creating an LLC requires maintenance of paperwork to the State to keep the LLC active which will be required if the LLC wants to sell the property.
  3. Put the Property Into a Living Trust.  This is achieved by conveying the property to a Trustee on behalf of a Trust. (A Trust itself can’t own property; rather it must be an individual Trustee on behalf of the Trust.)  The property will then be maintained and distributed in accordance with the Trust Agreement.  A Living Trust allows the Grantor to make changes during his or her lifetime (therefore keeping control and autonomy) but also allows for the streamlining of management and an easy transition of the property upon the death of the original Grantor.  The successor Trustee can sell or manage the property outside of Probate, and depending on the Trust terms, without the input of or disruption to the Beneficiaries.

Beneficiary Deeds

Tennessee does not offer this, but some states allow the use of a Beneficiary Deed to clarify how a property is to pass upon the owner’s death. Essentially, a Beneficiary Deed lets a person name a beneficiary and only takes effect upon the death of the owner. Ask your Estate Planning Attorney about the availability of Beneficiary Deeds if you own property in multiple states.

Right to Partition

If you are tied up in joint property ownership, or if you own a piece of property with a group of individuals or family members and you want to end the relationship and go your separate way, you can. In Tennessee, you have the legal right to what is called “partition.” Speak with a civil litigation attorney about filing a partition lawsuit. In this kind of lawsuit, you ask the judge to partition the property, either “in kind” or “by sale.”

Need Help with a Property Ownership Issue?

Have questions about joint property ownership or other real estate issues? Please call us at 901-372-5003 or send Patterson Bray an email.

May 9, 2016 In Business Litigation, Estate Planning

Wyoming Close LLCs Protect Assets

Wyoming Close LLC Asset Protection Memphis TNWyoming Close LLCs Protect Assets

A popular asset protection tool we use at Patterson Bray is the Wyoming Close Limited Liability Company.  One or more people can establish and own this type of entity and may also manage the LLC.   

Anyone can establish a Wyoming Close LLC, even if you do not live in Wyoming or conduct your business there.

Protection from Lawsuits

Under current law, assets inside a Wyoming Close LLC are protected from “outside” lawsuits and creditors, such as those resulting from a car accident or malpractice action.  In a few states, like Wyoming, the sole remedy for a creditor of an LLC member against that member’s LLC interest is a “charging order.”  A charging order only allows the creditor access to the debtor’s LLC interest to the extent distributions are made to the member.

Estate and Gift Tax Benefits

Under current law, the value of a membership interest in a Wyoming Close LLC may be subject to valuation discounts for estate and gift tax purposes. We anticipate in the future that the IRS will institute regulations limiting tax benefits.

Separation of  “Hot” and “Cool” Assets 

A “hot” asset is something like a rental property.  A “cool” asset is something like a brokerage account. Separate LLCs should be formed to keep “hot” and “cool” assets separate.  “Cool” assets should be isolated from “hot” assets because any “inside” lawsuits, such as those resulting from accidents occurring on property inside the LLC, will subject “cool” assets to claims of creditors of the “hot” assets.

Is a Wyoming Close LLC right for you?

If you have questions about whether a Wyoming Close LLC might be right for you, or if you’re curious about other forms of asset protection and business organizations, please call us at 901-372-5003 or email us here. We will examine your personal situation and work to develop the asset protection strategy that is right for you.

April 12, 2016 In Estate Planning

Basic Asset Protection in Tennessee

Basic Asset Protection in Tennessee

asset protection lawyer, asset protection attorney, memphis How do you achieve asset protection? How do you best limit your liability and protect the assets and investments you have spent so much of your life building up?  While you cannot completely eliminate exposure to potential liability, you can achieve asset protection through the use of simple techniques, like buying the right kind of insurance, or through the use of more sophisticated tools like asset protection trusts.


General Layers of Asset Protection Planning

  1. Purchase Protective Insurance.  Examples: long-term care insurance, professional liability insurance, and umbrella personal liability coverage. Insurance is the simplest and most affordable way to protect your assets.  When our clients ask us if we think they have enough insurance, we always tell them that you can never be over insured.
  2. Utilize Statutory Law Protections.  Examples: ownership of real estate as tenants by the entireties, homestead exemptions, retirement plans, and life insurance or annuities.  Real property owned by a husband and wife as tenants by the entirety is exempt from the separate creditors of each spouse.  Additionally, other statutory protections provide that specific assets may be protected from creditors in certain circumstances.  For example, in Tennessee, life insurance passing to a surviving spouse or child passes free of the claims of a decedent’s creditors.  You should consult an attorney to find out which of your assets may be statutorily protected.
  3. Domestic Asset Protection Trusts.  Tennessee is only one of a handful of states that has a specific statute allowing an individual to create a self-settled asset protection trust.  This means that a person can create the trust, have control over certain aspects of the trust, and also be a beneficiary of a trust.  The rules governing these types of trusts are very specific.  These types of trusts are also available in Mississippi, Delaware, Alaska, and Nevada. If you are interested in learning more, click here.
  4. Domestic Entity Planning.  Example: Wyoming Close LLC.  An LLC, unlike a corporation, allows the members of the entity to separate their personal liability from their liability as members of the company.  The most enticing feature of an LLC is the fact that a creditor of the LLC cannot attach the personal assets of the LLC’s members.  We prefer using a Wyoming LLC because the laws in Wyoming are among the most favorable in terms of the protection an LLC provides.


Need an Asset Protection Attorney to Help Protect Your Assets?

We are experienced asset protection attorneys with offices in Memphis and Nashville. We can help develop a plan to best suit your individual needs. Call us today at 901-372-5003 or email us here. 


Asset Protection Planning 101

It is not uncommon for people to have diligently planned and saved for financial security yet fail to implement any type of plan to protect those assets they have amassed. This leaves them vulnerable to asset seizure in the event they lose a lawsuit or are pursued by creditors. This is why it is so critical to work with a seasoned attorney who specializes in asset protection. The attorneys at Patterson Bray PLLC can sit with you and go over asset protection 101 in a way that is understandable and reassuring.


Benefits to Asset Protection

There are many benefits to having taken the steps to legally protect your assets. These can include:

  • Asset protection from creditors
  • Asset protection from divorce settlements
  • Asset protection from excessive medical bills when no health insurance or limited health insurance coverage exists
  • Asset protection from lawsuits
  • Asset protection from nursing homes or other assisted living facilities
  • Business asset protection from lawsuits, creditors, or other claims
  • Inheritance protection for adult children from divorce and/or creditors


Working with Our Asset Protection Law Firm

When you work with an attorney from Patterson Bray PLLC, we will work to develop strategies that will be specifically made for your situation. Some of the more asset protection 101 tools we can utilize include trusts and Family Limited Partnerships (FLP). Your attorney will also examine the different retirement accounts our clients have to ensure that they are maximizing the contributions made to their pension, 401(k), and IRAs. This not only benefits the client in increasing the amount of money they will have saved when they retire, but it also protects those assets in the event a creditor wins a judgment against the client or they lose any other type of lawsuit

Your asset protection attorney may also tell you that increasing the amount of insurance coverage you have may be beneficial. This can include homeowner’s insurance, business insurance, or a personal umbrella policy. Having significant liability insurance coverage can help minimize risks to your assets in the event of a lawsuit.

If you are a small business owner, your attorney will also examine the type of business structure you have set up. This can help to ensure that your personal assets are protected from any business liabilities that may arise. This is often done by creating a Limited Liability Company (LLC). By forming an LLC, small business owners will not be personally liable for any debts, judgments, or other liabilities of the business, and their personal assets and property are protected.


Call Our Office Today

If you would like to learn more regarding asset protection 101 and how to protect your family and/or business in the event of legal or financial issues that may arise, call Patterson Bray PLLC to schedule a free and confidential consultation.

 

 carlisle dale, memphis asset protection

By:      Carlisle Dale

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

(901) 383-6599 Fax

www.pattersonbray.com

 

 

March 23, 2016 In Estate Planning, General

Can I Write My Own Will? Is a Handwritten Will Valid?

handwritten will, holographic will, probate lawyerIn some cases, a handwritten Will can be considered valid and admitted to Probate Court.  Under Tennessee law, a handwritten Will is called a “Holographic Will.”  It is not necessary that the document be witnessed, but all the material provisions and the signature must be in the Testator’s handwriting.

What does “Testator” Mean?

The testator is the person who is making the Will.

How Do You Prove a Valid Handwritten Will?

The Testator’s handwriting must be proven by 2 witnesses.  Before petitioning the Probate Judge to admit the document to Probate Court as a valid Last Will and Testament, the Executor will likely have to find 2 people who can testify that the material provisions and signature are in fact written in the Testator’s handwriting.

Why We Don’t Advise Handwritten Wills

While writing your own Will seems like a simple solution to making sure your assets go where you want them to go after your death, there are many pitfalls. For example:

  • You may mistakenly believe that the disposition of certain assets will be governed by the terms of your handwritten Will.
  • A handwritten document is more easily lost.
  • A handwritten Will requires additional proof to be admitted to Probate Court.
  • When you handwrite a Will, you are likely to amend or rewrite that Will in the future.  You are more likely to leave multiple handwritten documents that contain conflicting provisions.
  • Pertinent provisions may be left out of a handwritten Will, including provisions relating to the disposition of assets or provisions that may ease the burden of administrating the Estate.
  • Many handwritten Wills are not properly executed and are unable to be admitted to Probate Court.

A Will drafted by a Probate Lawyer is likely to more clearly convey your wishes so that it can be correctly interpreted by your Executor and the Probate Court Judge after your death.

Need a Will? Call a Probate Lawyer.

If you would like to speak with a Probate Lawyer about a Will or about how to make sure your wishes are carried out after your death, give us a call at 901-372-5003 or email us today. With offices in Memphis and Nashville, you can also visit our website to learn more about our attorneys and the work that we do for our clients.

March 9, 2016 In Estate Planning, General

What does my spouse get when I die? Ask the Probate Lawyer.

What does my spouse get when I die? Ask the Probate Lawyer.

will for spouse, ask probate lawyerMany people believe that if you die without a will, that everything passes to your surviving spouse. Did you know that is not necessarily true? Read on to learn more from a probate lawyer about what a surviving spouse is entitled to in Tennessee.

If you die WITHOUT a Will

If you die without a Will, the distribution of your assets will be governed by the Tennessee laws of intestate succession.  If you die “intestate,” it means that you die without leaving a Will. This is what will happen if you die without a Will:

  • If you have a surviving spouse, he or she will receive your entire Estate if you had no descendants at the time of your death.
  • If you are survived by descendants, your spouse is entitled to either (a) one-third (1/3) of your estate, or (b) a child’s share, whichever is greater.

If you die WITH a Will

Even if you die with a Will that does not include your spouse, he or she will still be entitled to a portion of your assets. Your surviving spouse may take what it called an “Elective Share” against your Estate, which is based on the length of the marriage.  There is a sliding scale, but the maximum Elective Share a surviving spouse can take is forty percent (40%) of the net Estate if the couple was married nine (9) years or more.

You Cannot Disinherit Your Spouse in Tennessee

Whether you die with or without a Will, in all but a few rare cases, your spouse will be entitled to a portion of your Estate. Generally, you must be legally divorced from your spouse in order to prevent that person from receiving a share of your Estate.

Other Allowances for Spouses

Other allowances for surviving spouses (which may also apply to minor children) include a $50,000 exemption for personal property, a reasonable allowance for a year’s worth of support according to the previous standard of living, and either the right to the homestead or $5,000 from the proceeds of the sale of the home.  In some cases, a surviving spouse might be entitled to certain accounts of less than $10,000 or wages due to the decedent if no formal probate estate is opened.

Need a Will? Need a Probate Lawyer? 

Please contact Patterson Bray at 901-372-5003 or email us here if you have questions about leaving a Will, Estate Planning, or Probate issues.  We have a team of lawyers ready to help you.

 

February 1, 2016 In Business Litigation, Civil Litigation, Contracts, Estate Planning, General

I No Longer Want to Own Property with a Partner – How Do I Break Up?

I No Longer Want to Own Property with a Partner – How Do I Break Up?

picket-fencesImagine you and a partner purchase a rental property in the hopes of generating additional income.  Or perhaps you jointly inherit some property.  You own the property as tenants in common, meaning that you each own a ½ interest. You’re each responsible for ½ the property taxes and expenses, as well as ½ of any rental income.

A few years later, you decide you want out.  The income (when there is any) doesn’t seem worth the headache, and in some years, you even wind up paying more than your share of the expenses because your partner can’t seem to keep a steady day job.  The two of you don’t get along anymore and you really just want out. What can you do?

The law in Tennessee does not require you to continue owning property jointly with another person if you don’t want to. If you can’t reach agreement with your partner about an exit plan, then you can file what is referred to as a partition lawsuit.    There are two ways a Court can partition, and it depends on the particular facts of any given case. You will likely need an attorney to help you navigate the particular circumstances of your case.

Partition “in kind”

If a Court partitions a piece of land “in kind,” it means the property will be physically divided among the co-owners – almost quite literally splitting the baby.  An example would be if two people owned a two acre tract of raw land and the Court simply divided it in half, giving each person one of the two acres.

Partition “by sale”

A partition “by sale” is exactly what it sounds like. The Court will order a sale of the property and then distribute the money proceeds to the parties. The  Tennessee Code provides that a party is entitled to a partition by sale if either (1) the property is situated such that it can’t be divided, or (2) when it would be manifestly to the advantage of the parties for the property to be sold instead of divided.   For example, a Court can’t split a house and give each person half, so it would instead order the house to be sold.

Expenses and Distribution of Income

What if you paid more than your share of expenses prior to filing the lawsuit, or what if you don’t think the rental income was distributed properly? In a partition lawsuit, you can ask the Court to award you that money in addition to what you are owed for your ownership interest. The key to recovering this additional money is proving the amount you are owed. Hopefully, you have kept, or can obtain, records concerning your income and expenses associated with the property. In some cases, you might be able to obtain financial records during the partition lawsuit that may help prove what you are owed.

Settlement or Partition Lawsuit?  We can help.

If you currently own a piece of property with another person and you’ve decided you no longer want to continue in the joint ownership, we can help you fashion a solution.  Filing a lawsuit should not be your first step in any dispute, but a partition action is an available legal tool if an agreement can’t be reached. We are experienced at helping our clients negotiate resolutions without the necessity of filing a lawsuit; however, because we are trial attorneys, we know our way around the courthouse and are prepared to file and handle a partition action on your behalf, if necessary.   Please call us today at 901-372-5003 if we can help you.

January 29, 2016 In Estate Planning

Estate Planning 101: Power of Attorney and Living Will

Estate Planning 101: Power of Attorney and Living Will

living will power of attorney memphis estate planning lawyerA common question we receive from our estate planning clients is:  “What is the difference between a Health Care Power of Attorney and a Living Will?” Some people even incorrectly believe that a Living Will is the same thing as a Health Care Power of Attorney. While the two documents relate to your health care decisions, they are not the same. Both are important when planning for disability and death.

What is a Power of Attorney?

A Power of Attorney is a basic estate planning tool that is useful for ensuring that your financial and health care decisions can be made in the event of your incapacity.

Financial Power of Attorney

With a Financial Power of Attorney, you appoint an agent who is authorized to act on your behalf with regard to financial tasks and decisions (such as the payment of your bills and living expenses) in the event that you become unable to effectively manage your own property or financial affairs.  This authority may be granted at the time you execute the document or you can elect to make it effective only in the event of your incapacity.

Health Care Power of Attorney

With a Health Care Power of Attorney, you designate an Agent to make medical decisions for you if you cannot express your wishes or make the decisions yourself.  In addition, your Health Care Power of Attorney authorizes your Agent to obtain copies of your medical records

What is a Living Will?

In conjunction with your Health Care Power of Attorney, a Living Will serves to inform your doctors and your Agents that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process.  Although the  Agent you named in your Health Care Power of Attorney will ultimately make this decision, your Living Will provides guidance to your named Agent concerning your wishes.  Any person can deliver your Living Will to your doctors if the Agent you named in your Health Care Power of Attorney is unavailable to make health care decisions for you.

What if I change my mind?

You can revoke (i.e., cancel) your Financial or Health Care Power of Attorney  and Living Will documents at any time while you have capacity.

Need help with a Power of Attorney or Living Will?

Fortunately, Tennessee law governs what type of language should be included in these documents. The language requirements provide uniformity so that financial institutions and hospitals are familiar with the documents and can act accordingly.

If you have additional questions about a power of attorney or living will, or if you are interested in developing an estate plan, please call us at 901-372-5003 or   email us here.    We are experienced estate planners and regularly practice in Probate Court.

We assist personal injury, estate planning, business litigation, and business organization clients in the greater Memphis and Nashville areas. Cities covered include Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding towns and cities.