If you are considering the creation of an estate plan, one important consideration is often the avoidance of probate. In order to understand why avoiding probate is such an important facet of estate planning, you need to have a firm understanding of what probate is and how the probate process operates.

Probate is the legal process that is often required when someone dies. Although the process may vary somewhat from one state to the next, there are commonalities. Probate begins when someone petitions the court to probate the decedent’s estate and admits the decedent’s Last Will and Testament to the court, if one exists. The court then appoints a personal representative or executor. If the decedent left a will, an executor was likely named in the will. The court must still approve of the nomination. In the absence of a will, the court will appoint someone as personal representative.

The executor or personal representative is then charged with making a complete inventory of the decedent’s assets. All assets must also be valued and an inventory list submitted to the court. Notice of the probate is required to be given to beneficiaries and/or heirs as well as to the public by publications in a local newspaper. Claims can then be made against the estate for debts which are approved or denied by the executor or personal representative. Taxes must also be paid by the estate in some cases. A final accounting is eventually submitted by the executor or personal representative to the court for approval, If no disputed claims or a will contest against the estate have been filed, the court will then release the assets to the beneficiaries or

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

If you have an elderly family member or loved one who has become incapable of caring for himself or herself, you may wish to step in and help make day to day decisions for your family member or loved one. Unfortunately, you may also have found out that having good intentions, or even being related to the person, is often not enough to allow you to make those decisions. Often, an appointment as guardian of the ward, or person who needs assistance, is required before you can help.

State laws determine when a guardianship is needed, how to petition for one and sets the limits of authority granted to a guardian. In addition, terminology may vary by state. As a general rule, a guardian has authority over the ward while a conservator has authority over the estate of the ward.

In order to become a guardian, you must file a petition for guardianship, or similar document, with the appropriate court. This is typically the probate court; however, it may vary by state or city within a state. After the petition is filed, anyone with an interest in the proceedings is entitled to be notified that the petition was filed, including the ward. The court will then schedule a hearing to determine two things — if the ward is legally in need of a guardian and, is so, whether you are an appropriate person to be appointed guardian. Given the importance of being appointed guardian, you may wish to consult with an elder law attorney once you see the need for appointment

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

When you decide that you would like to go on a trip you are generally going to invest a good bit of time making preparations. Of course you want to identify your destination, and you will probably develop an itinerary. And if you are like a lot of people, you will consider all the contingencies that may arise and make sure that you are prepared to handle them.

Life itself can be viewed as a journey, and along these lines it is important to make preparations for all the eventualities of aging. You can’t say with certainty what the future will hold, but what you can do is become aware of the facts, understand the possibilities that lie in wait, and make the appropriate plans for addressing them.

One of the challenges that many people who reach an advanced age experience is that of mental and/or physical incapacity. Believe it or not, upwards of half of the people who are described in geriatric circles as the “oldest old,” those 85 years of age and up, are suffering from dementia. This is largely due to the ubiquity of Alzheimer’s disease. Dementia can make it impossible for its victims to make sound decisions regarding health care and financial matters.

To prepare yourself for this possibility it is advisable to execute durable powers of attorney. With these documents you empower representatives of your choosing to make medical and financial decisions for you in the  event of your incapacitation. Because of the fact that they are in fact “durable” they do remain in effect upon the incapacitation of the grantor, unlike standard powers of attorney.

If you do not have an incapacity plan in place a guardian that you did not choose yourself could be appointed to act in your behalf should you be deemed incapable of making your own decisions at some point in time. Most people would prefer to select their own decision-makers, and this is why capacity planning is so important.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

If you have recently suffered the loss of a parent, you may have a number of practical and legal questions regarding whether or not you need to probate your parent’s estate. When a decedent dies, many states require the estate assets to pass through a legal process known as probate. Which estates require probate, and which type of probate process is required, or available, will depend on a number of factors.

The most important factor in determining whether an estate must pass through probate is what state the decedent died in, or was a resident in at the time of death. Complications can arise right away regarding which state has jurisdiction in the event that the decedent owned property in more than one state. Once the issue of jurisdiction has been settled, however, the laws of the state with jurisdiction over the estate will dictate which probate procedures are required or available.

Typically, estates with significant assets, real property or where the decedent died intestate–or without leaving a valid Last Will and Testament — must go through formal probate. Formal probate can be lengthy, costly and complicated; however, assets of the estate cannot be transferred until the probate process has been completed through the appropriate court.

While a formal probate process is often required, many states also offer the option of a less formal small estate administration or small estate affidavit. If the decedent’s estate is valued at under a certain dollar amount, which varies by state, then a small estate administration or affidavit may be an option. In essence, both these options allow the estate assets to pass to the beneficiaries in a more rapid manner than a formal probate as well as avoid the often high costs associated with formal probate of an estate.

The only way to know for certain which probate process is required in your particular scenario if to contact an experienced probate attorney. Choosing the wrong process can cost you significant time and money as well as hold up the transfer of your parent’s assets.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

Unfortunately, many Americans are without much needed health care coverage. As a result, people often cannot afford preventative health care or treatment for serious medical conditions. If you are without health care coverage, the Medicaid program may be an option. Most people have heard of the Medicaid program, but many do not know how the program is administered, what it covers and how you may qualify.

Medicaid is a program that is funded by the federal government; however, the program is administered at the state level by the individual states. As a result, eligibility requirements may vary from one state to the next as will the extent of the coverage provided by the program. Although there are differences among the states, the program is intended to provide health care coverage for low-income individuals and families who would otherwise be without health care coverage.

There are various factors common among the states that go into a decision regarding eligibility for the Medicaid program. First, you must be a U.S. citizen or lawful non-citizen. Your child, however, may qualify even if you do not meet the citizenship test as long as he or she does. After that, your income and resources will be evaluated to determine whether your household is considered “low-income”. Income limits will vary among the states as well as within the various classes of Medicaid coverage. Some classes of applicants can qualify with higher income limits than others. Children, pregnant women and the elderly or disabled typically have higher income limits than able-bodied adults. Most states also have different eligibility guidelines for persons living in a nursing home or long-term care facility.

The services that are covered by the Medicaid program are usually similar to those covered by private insurance companies. The principle difference is that you must find a doctor or healthcare facility that accepts Medicaid. While coverage for adults may not include preventative services, coverage for children often does include preventative services as well as services for illness or injury. Medicaid may also cover a significant amount of the medical care involved in caring for an elderly or disabled individual who is residing in a long-term care facility.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

Laws are often passed that provide some form of protection while simultaneously creating impediments that were really not intended, and the Health Insurance Portability and Accountability Act is one of these. The HIPAA was originally passed back in 1996, and the letter of the law was completed and passed down by the Department of Health and Human Services in 2001. Health care providers and medical insurers are in possession of the medical records of the people they treat and insure, and the HIPAA was enacted in part to require these entities to keep this information confidential. In most cases it cannot be divulged without the consent of the patient.

This is all well and good, but hospitals have interpreted the law and set guidelines that dictate the actions of the health care providers who treat patients in their facilities. Estate planning attorneys generally recommend that their clients execute a medical power of attorney that gives a person of their choosing the power to make medical decisions in their behalf should they be incapable of doing so for themselves. But due to the hospital HIPAA rules that doctors must work under, there are cases when health care providers will refuse to discuss a patient’s case with his or her chosen medical agent.

This is a problem that can be circumvented with some advance planning. Along with your durable medical power of attorney or health care proxy you can also include a HIPAA release that allows your agent access to your medical information. When this release has been signed the hospital is free of exposure under the HIPAA and your agent can be informed about your condition and act in your behalf. In fact, you can add multiple people to the release so that other family members can freely discuss your situation with health care providers as well.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

Modern estate planning involves more than just the financial realities that go along with aging, and more and more people are coming to realize this. Living wills and durable powers of attorney for health care are now typically included in estate plans, and this is a very positive step. In our culture we tend to shy away from discussions surrounding death, but it is important to let your family know your thoughts concerning the way that you would like to be treated at the end of your life.

Living wills and medical powers of attorney are part of the equation, but there are also some more subtle matters that should be ideally included. There is an advance directive that was first recognized in the state of Florida in the mid-nineties called Five Wishes that provides a good framework for addressing all of the topics that are of relevance to end of life planning. By simply elucidating these five wishes you are creating a comprehensive end of life plan that leaves no stone unturned. The five wishes involve stating your choices concerning these matters:

• The person who will make medical decisions in your behalf

• Which medical procedures you will allow

• Statement of comfort care choices

• How you want others to treat you

• Final messages to your loved ones

Five Wishes can provide you with a framework that simplifies a rather complex and multifaceted task. The first two are essentially a durable medical power of attorney assignment and a living will. The rest of the wishes involve the more personal and often overlooked aspects of end of life planning. In a very real sense stating these wishes, which include matters of a spiritual nature as well as forgiveness issues, is a way to make sure that you die with dignity and communicate your innermost feelings to your loved ones.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

The law firm of Purcell & Amen, L.L.C. announces a fourth attorney to join its staff, Jacquelynn M. Capriano. Capriano has been working for the law firm for the past three years as a paralegal while attending law school. She will now help sustain the business of estate planning, trust administration and probate while providing an avenue to grow in the areas of elder law, Medicaid and special needs planning.

“I’m excited to have the opportunity to stay on staff at Purcell & Amen,” says Capriano. “The past three years at our firm have helped me prepare for my future as an attorney and I am excited to continue learning from Mr. Purcell and Mr. Amen.”

Capriano obtained her undergraduate B.A. degree in History and Political Science from Webster University. She went to law school at St. Louis University, and obtained her Juris Doctorate in 2010. She will be admitted to the Missouri Bar in the fall of 2010.

The law firm of Purcell & Amen, L.L.C. has devoted its practice to estate planning matters for the last 30 years. They have been a member of the American Academy of Estate Planning Attorneys for 15 years and are the only firm accepted into the Academy in the St. Louis area. The firm has helped thousands of families in the St. Louis area meet their long-term financial and non-financial goals. For more information on attorneys David Purcell, Charles Amen, Paul Gantner or Jacquelynn Capriano about setting up an effective estate plan to protect your family and pass on your legacy or about Purcell & Amen, L.L.C. and its services, please call (314) 966-8077, or visit their website at www.yourestatematters.com.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

A Power of Attorney is a legal document that enables you to give someone you trust the authority to act on your behalf.

This is most commonly seen in real estate negotiations, where one or both parties assign authority to their attorneys to negotiate on their behalf.

But a Power of Attorney can also be a handy thing to have on a personal level too. A general Power of Attorney would allow your spouse to pay your bills for example, access your checking account and even discuss payment options with creditors.

If you’re someone who travels frequently or expects to be away on an extended business trip, this might be a document you want to consider utilizing while you’re gone.

But should you become incapacitated, that POA will immediately be revoked to prevent someone from taking advantage of your diminished mental capacity.

That sounds like a good precaution in theory but then, who will take care of your financial affairs if you’re not able to do it yourself?

A Durable Power of Attorney can help.

Like the general POA, it gives someone you trust the ability to act on your behalf but instead of becoming invalid upon your disability, a durable POA continues to grant authority, even if you can no longer speak on your own behalf.

This ensures that your bills are paid and your financial affairs continue to be managed, no matter what the future might hold. Of course, you’ll want to make sure you choose someone that is completely trustworthy, so that there’s no funny business with your finances while you’re incapacitated.

To learn more about planning for disability, contact our office today.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.

No one wants to think about the possibility of becoming disabled. However, like death, disability can occur without warning at any time. You might want to consider having a plan in place in the event of an unexpected disability. A good estate planning attorney can help you create a plan that meets your needs, using a variety of incapacity planning documents.

Create a Living Will

A Living Will is designed to describe what sort of medical treatment you want prior to death. It is not used to assign assets to certain people, but to explain how you want to be treated. Your Living Will can include provisions for your treatment in the event of severe mental or physical disability.

Living Wills cover things like organ donor preferences, long-term care wishes, and your feelings about treatments like medical life support.

Powers of Attorney

There are two types of Powers of Attorney you may want to consider. The first is a Healthcare Power of Attorney that grants authority for someone of your choosing to speak out on your behalf with regard to healthcare matters and medical treatments. This can come in handy if your Living Will does not address your particular medical situation.

The second POA you’ll want to consider is a Springing Financial Power of Attorney. This document allows someone you choose to handle your financial affairs for you if you are no longer able to do it yourself. The “springing” portion of the document means that it only goes into effect when you have been declared incompetent or otherwise unable to make decisions on your own. As an alternative, a Durable Power of Attorney grants this authority to someone without requiring a formal assessment of your mental capacity.

Create a Revocable Trust

A revocable trust, also called a living trust, can be set up to designate where certain parts of your estate should go in the event of mental or physical disability. You can use this to keep assets in your possession before death or to cover your children’s care during a severe disability. This kind of trust can help to protect you, your estate, and your descendants from financial hardship resulting from injury or disability.

To ensure you have a solid plan for disability, consult with a qualified estate planning attorney.

Purcell and Amen, Attorneys at Law – Your Estate Matters, LLC is a member of the American Academy of Estate Planning Attorneys.