1 ADVANCE DIRECTIVES, THE NECESSITY OF A WILL, AND THE PROBATE PROCESS March 14, 2016 David M. Cook, David M. Cook, Of Counsel Of Counsel The Hardison Law Firm, P.C. The Hardison Law Firm, P.C. 119 S. Main Street, Suite S. Main Street, Suite 800 Memphis, Tennessee Memphis, Tennessee

2 “[T]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.” Planned Parenthood v. Casey, 505 U. S. 833 (1992).

3 ADVANCE CARE PLAN (TN) TN Advance Care Plan Form

4 TN Advance Care Plan Form (continued)

5

6

7

8

9 MEDICAL POWER OF ATTORNEY TN Medical Power of Attorney Form

10 TN Medical Power of Attorney Form (continued)

11 APPOINTMENT OF SURROGATE TN Appointment of Surrogate Form

12 TN Appointment of Surrogate Form (continued)

13 PHYSICIANS ORDERS FOR SCOPE OF TREATMENT (POST) TN POST Form

14 TN POST Form (continued)

15 TN POST Form (continued)

16 TN POST Form (continued)

17 Tennessee Case on Advance Directives San Juan-Torregosa v. Garcia (2002) FACTS FACTS –Patient in a persistent vegetative state and was on life support; received nutrition by a PEG tube. There was no chance of recovery. –She did not have an advance directive. –While her family decided discontinuing artificial nutrition was best, her spouse disagreed. –It was custom to allow the spouse to make the decision on withholding or withdrawing life-sustaining treatment. –The family sought Court intervention to discontinue life-support.

18 Tennessee Case on Advance Directives San Juan-Torregosa v. Garcia (2002) IMPACT OF DECISION IMPACT OF DECISION –The final decision allowed the family to terminate the artificial nutrition and hydration despite the fact that the patient did not have an advance directive. –In Tennessee, executing a living will (or advance care plan) is only one way an individual’s rights may be exercised. –A living will or other document is not necessary to allow a person to exercise their fundamental right to die with dignity and to refuse medical care.

Tennessee Healthcare Decisions Act Effect on Old Forms Effect on Old Forms –If you have a “Living Will” or a “Durable Power of Attorney for Health Care” Form, these are still valid. –For new forms, please use the “Advance Care Plan” and/or “Appointment of Health Care Agent”.

20 An Introduction to Wills and the Probate Process

21 Intestate Estate Succession Process Spouse If no children, then the spouse receives the entire estate; If children, the spouse receives 1/3 of estate or child’s share of the estate; If no spouse, then to children; Children of decedent take equally; If decedent’s child has died, then his or her issue will step in and divide up share; If no children at all or spouse, then to decedent’s parents equally; No children or parent, then to siblings, and then to their children per stirpes; If no other survivors, then to grandparents Half to maternal, half to paternal; If no family, then escheats to the State.

22 What is a Will? A will is a written document containing your instructions and wishes as to how your property and assets are to be distributed after your death. A will is a written document containing your instructions and wishes as to how your property and assets are to be distributed after your death. It is a legal document containing the names of the people you want to benefit, as well as details of your possessions at the date of your death. It is a legal document containing the names of the people you want to benefit, as well as details of your possessions at the date of your death. Every adult, whether single or married, who owns property should create a will. Every adult, whether single or married, who owns property should create a will.

23 What is a valid Will? A valid will is accepted by the court and put into effect by the court. A valid will is accepted by the court and put into effect by the court. In Tennessee, the will In Tennessee, the will –Must be signed by the testator; –Must be witnessed by at least two other disinterested persons present at the time of signing; –May be self-proving.

24 Why Do You Need a Will? A will is the only way you can ensure your assets will be distributed according to your wishes after your death. A will is the only way you can ensure your assets will be distributed according to your wishes after your death. Goes through Probate Court which provides: Goes through Probate Court which provides: –Security; –Court oversight of the management and distribution of assets; –Official notice to those who have an interest in the estate, including creditors. If a valid will has not been prepared and executed, your family may be forced to deal with costly litigation. If a valid will has not been prepared and executed, your family may be forced to deal with costly litigation.

25 The Probate Process: What is it? “Probate” means to prove. “Probate” means to prove. Probate is a court-supervised process which takes place after someone dies. Probate is a court-supervised process which takes place after someone dies. It sorts out the transfer of the deceased person’s property. It sorts out the transfer of the deceased person’s property. It entails proving the deceased person’s will is valid, identifying and inventorying the deceased person’s property, having the property appraised, paying debts and taxes, and distributing the remaining property as the will (or state law) directs. It entails proving the deceased person’s will is valid, identifying and inventorying the deceased person’s property, having the property appraised, paying debts and taxes, and distributing the remaining property as the will (or state law) directs.

26 The Probate Process: Who Handles It? The executor The executor –The will names the executor. –If no executor is named, the Court may appoint an administrator. –It is the responsibility of the executor to track down property and accounts to pay creditors, debts, taxes, and beneficiaries.

27 The Probate Process: Should I Plan to Avoid It? Probate is rarely a benefit. Probate is rarely a benefit. It costs time and money. It costs time and money. The process only makes sense if the estate faces complicated problems. The process only makes sense if the estate faces complicated problems.

28 How to Avoid Probate: Living Trust Establish a Living Trust Establish a Living Trust –It is a trust you create while living, rather than one that is created at your death. –Property you transfer into a living trust before your death doesn't go through probate. –The person you appoint to handle the trust after your death transfers ownership to the beneficiaries you named in the trust. –No lawyer or court fees to pay.

29 How to Avoid Probate: Living Trust Disadvantages Disadvantages –No tax advantages; –Costs associated with transferring ownership of assets; –No notice of trust’s provisions.

30 How to Avoid Probate: Joint Ownership Joint Tenancy with Right of Survivorship Joint Tenancy with Right of Survivorship Tenancy by the Entireties Tenancy by the Entireties Tenancy in Common Tenancy in Common

31 How to Change a Beneficiary on an Insurance Policy Insurance policies specify the mode of changing the beneficiary. Insurance policies specify the mode of changing the beneficiary. The proper form should be procured from the insurance company. The proper form should be procured from the insurance company.

32 Setting Up Testamentary Trusts for Minor Children Testamentary trusts are established by a provision in a will. Testamentary trusts are established by a provision in a will. This type of trust, as opposed to living trusts, will establish a way to control and preserve assets until the child matures into a responsible adult. This type of trust, as opposed to living trusts, will establish a way to control and preserve assets until the child matures into a responsible adult. Usually, money is placed in an account until the child reaches a certain age. Usually, money is placed in an account until the child reaches a certain age. An individual is appointed in the will that sets up the trust as the trustee to manage the trust for the minor. An individual is appointed in the will that sets up the trust as the trustee to manage the trust for the minor. As beneficiary of the trust, your child is entitled to whatever income and principal from the trust that the trust document says he or she is entitled to. As beneficiary of the trust, your child is entitled to whatever income and principal from the trust that the trust document says he or she is entitled to.

33 Spendthrift Trusts A trust created for someone who the grantor considers to be irresponsible regarding money. A trust created for someone who the grantor considers to be irresponsible regarding money. The trustee keeps control of the trust income and corpus, giving money to the beneficiary as necessary. The trustee keeps control of the trust income and corpus, giving money to the beneficiary as necessary.

34 QUESTIONS?