While making healthcare decisions is often difficult in the best of circumstances, making decisions for others is even more complicated. Each of us has the ability to guide our healthcare providers and our loved ones about what we want. Advance directives give you the ability to document the types of healthcare you do and do not want, and to name an “agent” to speak for you if you cannot speak for yourself. As Terri Schiavo’s situation vividly revealed, having an advance directive can be valuable for all adults, regardless of current age or health status.

With the Patient Self-Determination Act of 1990, Congress affirmed the right of every citizen to set forth his or her future healthcare wishes in writing with an “advance directive.” Yet, various estimates suggest that only about 25% of all Americans have done so.   In recognition of this, National Healthcare Decisions Day strives to provide much-needed information to the public, reduce the number of tragedies that occur when a person’s wishes are unknown, and improve the ability of healthcare facilities and providers to offer informed and thoughtful guidance about advance healthcare planning to their patients.

The National Health Care Decision Day Web site has a variety of free information (including free advance directives forms for every state) and tools to assist with thoughtful reflection on healthcare choices and ideas on how to get involved. Please share this information with your loved ones and colleagues.

Digital Assets covers a broad range of assets and accounts.  Do you have on line access only to a bank or investment account?  Do you have your photos stored on line?  What about a Paypal account, or a Facebook account or credits on a virtual game?  All of these assets or accounts may be lost if your successors do not know about them.

We have encountered situations where assets are trapped with no access by family due to the inability to login and access them on-line.  Clients may not even be aware that the assets exist, and may not have any mechanism to determine if they have missed anything.  In addition, social media accounts and access to those accounts following incapacity or death is increasingly becoming a problem.

Consider the need to give your successor agents or trustees, or even family members, a list of logins and passwords to all of your accounts.  Security issues are clearly a concern, and one way to still have protection is to give the logins to one child and passwords to another.  Another is perhaps to utilize a password protection system and only leave the main password locked in a safe that a trusted family member can access.  Financial Powers of Attorney should now contain language to authorize access to these accounts, including the power to change login and password information.  We should also consider providing instructions to our agents as to what to do with our social media accounts when we pass away.

It is critical to keep a list of all digital assets, covering everything from investments, to photos to social media,  how they can be accessed and then keeping it up to date.  However, keeping that list solely in the computer may not provide any assistance as the family may be unable to access the computer.  Thus, ensure that a paper copy of the list of all digital assets has been printed and is maintained with your other estate planning documents.

My elder law practice focuses on long term care planning and emphasizes planning for quality of life’s through quality care of elders.  While we do asset protection as part of the long term care planning, it is not intended to protect the assets for the children to enjoy, but instead for the children to use to provide quality care for the parents.   I frequently hear the boomer children say to Mom or Dad, “we just want to make sure there is enough money to care for you; if there is anything left for us after that, fine, but don’t worry if there is nothing left for us.” Perhaps I hear this so often because it is the PC thing to say or maybe I am putting the words in the children’s mouths.  Nevertheless, I believe that it is heartfelt by the children.

Boomer children, I believe, are setting the example that children should not expect an inheritance.  As boomer parents (yes, I am one), we have given our children good educations and helped launch them into life, sometimes helping them with the purchase of their first homes and the amounts we have spent on their weddings is outrageous!  We have admittedly experienced better earning levels than any prior generation and were able to buy our homes in desirable neighborhoods when they were actually affordable.

Now, as we enter our “golden years” we expect to live as well as we always have done.  We enjoy life and are not worried about spending money to do so.  When we get to the point where we need care, I cannot see us saying, “I want to save my money for my children.”  No, I believe we will not hesitate to spend whatever it costs to provide for the best quality of care that we can afford for ourselves and will not worry about leaving anything for our children just as we told our parents to not worry about leaving anything for us.

Unlike cash or other financial assets which can typically be easily divided between the children, tangible items are much more difficult to divide.  With only one piano or grandfather clock, who will receive those items when there are four children?  Trustees and estate administrators struggle with how to divide up the items, especially if the decedent left no specific instructions regarding their distribution.  In addition, the trustee is often struggling with their own grief and personal memories which are attached to some of the personal property items, and may find themselves having difficulties achieving an equitable division.

Jennifer Modenessi’s article Dividing Up a Life’s Worth of Memories (11 September 2011, Living Section) in  the San Jose Mercury News    discussed dividing up personal property following a parent’s passing and how difficult that process can be.  I find that in my practice, older estate planning documents tend not to mention the division of the personal property while current estate plans will often contain some sort of direction particularly regarding certain items.  When drafting estate plans, I do encourage clients to consider keeping a list which will indicate to whom certain items should be distributed.

However, for my administration clients, as there is typically little or no direction coming from the documents, I have to advise my clients to find a method which may work for them and their families to equitably divide up the personal items.  There is no one solution that will work for everyone, however it remains in everyone’s best interest to work through the difficult task of dividing up the personal items, as the probate judge would prefer to keep these issues out of the courtroom!

If you have been considering getting started on your estate planning and have been concerned about how to bring up the subject with family members, this article presents some practical ways to have discussions about estate planning with spouses, partners, adult children, and parents.

While the seminar confirmed many estate planning and tax strategies which we are utilizing for retirement benefits, a few warnings which were presented might impact our clients in the future. The IRS has now blocked the ability to reform trusts post-death to comply with the trust rules for minimum distribution purposes. The IRS is also apparently going to devote energy to auditing required minimum distributions as a result of non-compliance with people failing to take their annual required distribution.

“The modern era of the Internet is transformational,” Jeremy Toeman, the CEO and founder of San Francisco-based Legacy Locker, which helps customers get their loved ones’ digital affairs in order. “No one has really thought it through. It shouldn’t be up to Facebook or Twitter to decide what to do (with your holdings). It should be up to you.”

Yet there seem to be very few rules or instructions indicating when the accounts get shut down and who controls that decision. And the rules that are in effect are usually in the fine print presented when you initially sign on as a member, and which few people read.

Sometimes the terms give the deceased’s legal representative, such as the spouse or the executor of the estate, control over the accounts, says Rebekah Jackson Sapirstein, a San Francisco-based attorney specializing in estate planning and trust and probate matters. “For instance, Gmail allows the legal representative to take control of the account after death. However, they require a court order to prove you are the legal representative, which people in California with a trust would not normally need.”