Estate Planning Definitions

A Durable Power of Attorney for Health Care Decisions is sometimes called the Healthcare Power of Attorney. It is a signed and witnessed or notarized legal document that allows a person to designate an agent to make health care decisions for him/her during a period of disability or incapacity. (The person who holds the power of attorney is called the healthcare agent or proxy.)

The terms of the document may be fairly general or very specific, as desired. The powers granted usually include the power to make decisions regarding hospitalization, choice of physicians and long term care. The document also may include the power to refuse or withdraw consent for the use of life sustaining procedures, even when the person is in a coma or persistent vegetative state, and for organ donation and autopsy.

This document may be used to nominate a guardian for personal affairs and/or a conservator for financial matters, in the event one needs to be appointed by a court.

Authorized by Kansas law. The person must be an adult (at least 18 years old) and competent when the document is signed. A person is generally assumed to be competent and does not need to prove it in the absence of actual notice to the contrary. Witnesses may not be relatives or have a financial interest in the person’s medical care or estate. The Healthcare Power of Attorney may be effective immediately, or may be made effective only when the person lacks the capacity (as determined by a physician) to make or communicate decisions.

DPOA Definitions & Instructions

The Durable Power of Attorney for Health Care Decisions, also called the Healthcare Power of Attorney, allows you to name an agent to make health care decisions for you when you lack the capacity to make decisions for yourself.

Healthcare Agent – The person you choose to make healthcare decisions for you when you cannot make or cannot communicate decisions for yourself. It is the agent’s job to carry out your wishes, so you should name an agent who knows your goals and values best, someone you trust. It is very important that you discuss your wishes regarding healthcare choices with your agent and make sure that person is willing to act on your behalf.

Alternate Agent – It is recommended that you name at least one alternate agent in case your agent is unavailable or unwilling when the time comes for decision-making.

Optional Guardian or Conservator – The Durable Power of Attorney for Healthcare Decisions may be used to indicate what your choices would be if at some time in the future a court is called upon to appoint a Guardian (for personal affairs) or Conservator (for financial matters and property) for you. If you nominate someone, the court will consider your wishes when a Guardian or Conservator is appointed.

Instructions

You may name a family member to be your healthcare agent, but it is not necessary to do so.

Your healthcare agent may not be your doctor or anyone who takes care of you unless that person is a relative or is bound to you by common vows to a religious life. Your agent may not be an employee, owner, director or officer of a facility such as a hospital or nursing home where you are receiving treatment unless that person is a relative or is bound to you by common vows to a religious life.

The Durable Power of Attorney for Healthcare Decisions shall be:

a. In writing

b. Dated and signed in the presence of two witnesses at least 18 years of age, neither of whom is the agent named in the document. The witnesses may not be related by blood, marriage or adoption, entitled to any portion of the estate, or directly financially responsible for your health care.

Or
c. Acknowledged before a notary public.

Other Provisions
1. Your healthcare agent has authority to make decisions for you when and only when you are no longer able to make or communicate decisions for yourself. The agent has a duty to make decisions as you have indicated you want them made. He/she must follow your wishes.

2. The decisions made by your healthcare agent while you are disabled or incompetent have the same force and effect as if you were able to direct your own care. However, your agent may not use the Power of Attorney to revoke or invalidate a previously existing “Living Will” Declaration.

3. It is the duty of the attending physician to determine in accordance with the law, when you no longer have the capacity to make decisions for yourself (unless the Durable Power of Attorney for Health Care Decisions states otherwise).

4. If you decide to revoke or change a Healthcare Power of Attorney you should do it in writing and have the revocation witnessed or notarized. You should also destroy all copies of any previous Healthcare Power of Attorney and inform your attending physician and your healthcare agent.

A decedent’s estate is a taxable entity for federal income tax purposes.
An estate exists from the moment of a person’s death, regardless whether or when a formal probate or administration proceeding is initiated. Income of an estate is received by the estate for federal income tax purposes during the entire period of administration or settlement of that estate, until all estate assets have been distributed.

 

Similarly, a trust may be a separate taxable entity for federal income tax purposes.
A trust is a fiduciary relationship whereby the person who holds legal title to the property is subject to fiduciary duties in dealing with the property for the benefit of another person. Thus, the legal ownership and the beneficial ownership of property held in trust are divided. A trustee holds the legal title to the trust property. That property is held, however, for the welfare of the beneficiary who is the “beneficial” owner of that property.

 

Trusts can be created for a variety of purposes, including estate planning, business arrangements, sales transactions, and debtor-creditor relationships. This discussion is devoted to the use of trusts in the context of estate planning, often including transfers of property within families. In the estate planning context, a trust can serve a variety of purposes, including:

• to conserve property for beneficiaries (including protecting them against their own asset mismanagement);
• to manage investments and to implement property investment strategies;
• to avoid guardianship (and related probate) requirements relative to asset transfers to or for minors and other persons who are legally incapacitated;
• to minimize probate costs by transferring property either at death or on other occasions pursuant to arrangements beyond the jurisdiction of the probate court;
• to assure privacy in the transfer of property, whether that transfer occurs at death or at other times;
• to utilize a structure which, more than a will, may have greater probabilities of withstanding a challenge made by disappointed beneficiaries; and
• to save taxes, including federal income and estate taxes, and state income, inheritance, and estate taxes.

 

A trust can take the form of:

• an irrevocable inter vivos trust;
• a revocable inter vivos trust; or
• a testamentary trust (which is created under the decedent’s will).

 

Both of the inter vivos trusts, revocable and irrevocable, are created by an agreement completed during the lifetime of the trust grantor.