At the completion of my document signing meetings for my estate planning clients, many have questions about what to do with their newly-executed documents.  As a result, I spend a good amount of time at the conclusion of these meetings educating my clients about their estate planning “next steps.”   Until recently, I always reminded these clients to provide a copy of their Advance Medical Directive (“AMD”) to the person they named as agent, as well as to their doctor.  I also encouraged them to bring a copy of their AMD with them to any hospitals they checked into and to keep a copy in their carry-on bag when traveling.   All of these reminders were necessary because, until recently, there was no centralized place for my clients to “store” their executed AMDs so that they were reasonably accessible to those who needed to see them.  

In 2008, the Virginia General Assembly passed legislation to create a secure online central registry for advance health care directives.  Over the course of the last four years, however, this registry seemed to be more of an aspiration than a reality. That was until December 7, 2011. 

On December 7, 2011, the Virginia Department of Health launched its Advance Health Care Directive Registry (the “Registry”).  A public-private partnership between the Commonwealth of Virginia, UNIVAL Inc., and Microsoft, the Registry will allow individuals to store their advance medical directives, health care powers of attorney, and organ donation information, among other things, securely online at no cost to the individual.  From what I have read over the last few weeks, those who sign up for the registry will be provided with an identification card with their personal registry information, and will be able to share access to their information with anyone they designate.    

The web address for the Registry is www.virginiaregistry.org.  I intend to try to register my own AMD shortly and will report back in another blog post in the near future.

As a lawyer who practices in both the areas of domestic relations and estate planning, I can’t help but think about the interplay between the two.

Recently, I had a potential client who came into the office wanting to divorce her husband, but not wanting to do without his money.   She relayed to me that, several years before she and her husband had started having marital problems, her husband had executed a Durable General Power of Attorney in favor of her (i.e., her husband had executed a document which gave her the almost unfettered ability to transact on his finances).  This potential client wanted to know if she could go down to the local bank and use the Power of Attorney to withdraw all of her husband’s money (which was held in accounts that did not have her name on them) and what implications, if any, there could  be if she later chose to file for divorce.  

While this woman was not yet a party to a divorce action, her situation gives rise to an important point relating to the intersection between domestic relations and estate planning: you must always trust the person whom you have named as your agent under a Durable General Power of Attorney and, if and when that trust ends, you need to remember to revoke your Power of Attorney.  Revocation may be as simple as tearing up the Power of Attorney.

Nowhere is it more important for a person to revoke his or her Durable General Power of Attorney than in the context of a separation.  Section 26-81 of the Code of Virginia provides that an agent’s authority under a Power of Attorney terminates when an action for divorce or annulment of the agent’s marriage to the principal (i.e., the person who executed the Power of Attorney) is filed or in the parties’ legal separation, but it does not protect two parties before a Settlement Agreement is signed.  As a result, if your family circumstances are bad enough that you are visiting a lawyer to obtain information and guidance about a separation or divorce, you  may want to strongly consider revoking your Power of Attorney as soon as possible to avoid any further difficulties.

Once you have decided that probate of the estate of a loved one is necessary, what do you do next? 

First, you must decide who will serve as executor (if the decedent has died with a will) or administrator (if the decedent has died without a will).  For guidance, you should first review the decedent’s will.  Most wills will include a provision which appoints a particular person or particular people as executor.  If the person who is appointed in the will does not wish to serve, there is the ability for someone else to serve as executor.  However, in most jurisdictions, you will need to have the person who was appointed sign a document indicating that he or she declines to serve.  If the decedent died without a will, you will need to consult the relevant sections of the Code of Virginia to determine who may serve as administrator.

Second, you will need to go to the probate (or wills and estates) department of the circuit court of the city or county in which the decedent was residing at the time of death to qualify as personal representative (the general term for an executor or an administrator).  Most probate departments require you to make an appointment, though you can usually get in fairly quickly.  When you attend this appointment, you will need to bring with you a list of the decedent’s assets, how they were titled, and their value as of the date of his or her death.  You will also need to bring sufficient funds with you to pay any probate tax and fees.

Once you qualify as personal representative, you should immediately begin the task of collecting the decedent’s assets and identifying the decedent’s debts.  As personal representative, you will be responsible for maintaining the decedent’s assets (with some exceptions) and paying the decedent’s debts (again, with some exceptions) until the estate is closed.  If you have any questions about how to do this, you should absolutely consult with an attorney working in the area of estate administration because, as personal representative, you could be held personally liable for any mistakes made in the administration of the estate. 

Probate is the process by which the assets of a person who has died (i.e., the “decedent”) are distributed to his or her heirs or beneficiaries and the debts of the decedent are satisfied by the decedent’s executor (if the decedent dies with a will) or the decedent’s administrator (if the decedent dies without a will).

Probate may be necessary if the decedent has died with a will (i.e., the decedent has died “testate”).  But, it may also be necessary if the decedent has died without a will (i.e., the decedent has died “intestate”).  How the decedent’s assets are held, the type of assets he or she had, and the value of his or her assets at the time of death will all impact whether probate is necessary.

If a loved one has passed away and you are unsure whether probate is necessary, you should consult with an attorney.  To get the most out of your meeting with the attorney, you should bring with you as much information you have regarding the decedent’s assets.

Potential clients often approach me about what arrangements, if any, can be made to grant their cohabiting partner the authority to make financial decisions for him or her.  Sometimes, they are surprised to hear that they have the same options as the members of a married couple.

Any individual over the age of eighteen years can execute a document called a Power of Attorney.  A Power of Attorney enables the person who has executed the document (called the “principal”) to name any other person who is also over the age of eighteen years (called the “agent”) to make financial decisions for the principal.  In this way, just as a wife can name her husband as her agent, a woman can name her cohabiting partner as her agent.

Before you execute a Power of Attorney in favor of another person, you should speak with an estate planning attorney, as there are different types of powers of attorney which become effective under different conditions.  For instance, a Durable General Power of Attorney confers authority on the agent as soon as the Power is signed by the principal and delivered to the agent.  A Contingent Power of Attorney, on the other hand, does not confer authority on the agent until the principal has been declared to be incapable of making decisions for him- or herself.  Regardless of which type you choose, it is incredibly important to name someone you trust (and who has good financial sense, or at least enough sense to find a professional who has good financial sense) as your agent.     

As an estate planning and domestic relations attorney, from time to time, I am asked whether there is a way to ensure that an individual in a non-marital cohabiting relationship can make health care decisions for his or her partner. The answer is yes.  By executing a legally valid Durable Health Care Power of Attorney, or an Advance Medical Directive with a provision designating an agent to make health care decisions, a non-marital cohabiting partner may be given the authority to make health care decisions for the other partner.  Under Virginia law, an individual can name any adult to make his or her health care decisions, so long as the document in which the designation is made is legally sufficient.

But what happens if an injured cohabiting partner does not have one of these documents? As with any other adult, the individual’s health care decisions will then be made by his or her default agent as set forth in Section 54.1-2986 of the Code of Virginia.  While Section 54.1-2986 of the Code of Virginia does refer to several blood relatives or relatives by marriage such as spouses, children, parents, and siblings, it does not refer to cohabiting partners and probably will not for quite some time, if ever.

As a family law attorney, I spend a good deal of my day helping others to plan for upcoming marriages or helping them to end existing marriages.  Within the last few months, however, I have met with a number of individuals contemplating, or already involved in, another type of relationship: a non-marital cohabitation relationship.  These potential clients have made the decision to live with another adult, but have declined, for various reasons, or have been legally unable, to marry.  Still, they come for advice as to how to best protect their interests as they enter into and exit their cohabitation relationships.

While marriage is a legally-recognized status here in Virginia, non-marital cohabitation, with very, very few exceptions (which I’ll talk about in later posts), is not.  Nevertheless, there are things that an adult who is contemplating cohabitation, or is already cohabitating, with his or her partner can do to protect his or her interests (and some limited legal protections he or she may enjoy).  Over the course of the next few posts, I will talk about some of these concepts.

As an estate planning attorney, I frequently (and, perhaps, naturally) speak about the importance of having an estate plan.  Often, though, I encounter people too late to have that conversation.  For instance, over the last several weeks, I have met with a number of older adults who have elderly parents without an estate plan.  Now, one (or, even worse, both) parents are incapable of monitoring their financial affairs and/or making their medical decisions, and the adult child is left to pick up the pieces.  What is the adult child in this situation to do?

If an adult parent does not have the capacity to execute a  financial Power of Attorney and/or a Health Care Power of Attorney, the next viable option would be for the adult child (or some other family member, etc.) to become the parent’s guardian and/or conservator.  As the parent’s guardian, the child will then be able to make all decisions pertaining to the parent’s person, such as where he or she lives and what medical treatment he or she receives (or does not receive).  As the parent’s conservator, the child will have the ability to manage the parent’s finances. 

Obviously, though, the preferred course of action is for the adult to execute any Powers of Attorney before he or she loses the capacity to do so.  Then, the adult can decide who to name as his or her agent, rather than leaving the task to family members when circumstances may already be stressful for the family.

I am often asked the question: “Why should I consult with an estate planning attorney if I’ve already had my estate plan done?”  The answer is: “Because things change.”

An estate plan is not a static concept.  At the least, an individual should have his or her estate plan reviewed by an attorney when he or she experiences a significant life change.  Such life changes may include getting married, having a child, getting separated or divorced, receiving an inheritance, or enjoying a substantial increase in one’s net worth.  These are all key times to have one’s estate plan reviewed, and possibly updated, by an attorney.

Another reason to revisit one’s estate plan is because there are often changes to the relevant law over the years.  For instance, in 2010, significant changes were made to the laws governing powers of attorney.  Additionally, over the years, there have been important amendments to the laws addressing the federal estate tax.  In the future, it very likely such changes will continue.  

For these reasons and many others, it is advisable to periodically have one’s estate plan reviewed by an attorney.  

Many of my potential estate planning clients come into their consultation determined that they need a revocable inter vivos trust (also referred to as a “revocable living trust”). Sometimes they are correct—based upon their financial, family, and/or personal circumstances, a revocable trust is a prudent, well-advised choice. However, on many occasions, the potential client mistakenly believes he or she needs a revocable trust. When, then, is a revocable trust a “good idea?”

Revocable trusts serve many purposes. One might consider creating a revocable living trust if he or she:

1. Is concerned about estate taxation;

2. Is concerned about becoming incapable of handling his or her financial affairs;

3. Is concerned about the public nature of probate and desires privacy;

4. Has a complex family situation such as a blended family; and/or

5. Has out-of-state real estate.

It is always best to consult with an attorney to determine whether a revocable inter vivos trust might be appropriate based upon your circumstances.