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Estate Planning

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Any person over 18 should consider having a Last Will and Testament, a Durable General Power of Attorney, and a Healthcare Proxy (or similar medical document). The documents can eliminate stressful and expensive legal emergencies in the future. It is the practice of elder law attorneys, and Archer Brogan in particular, to advocate for advance planning whenever possible to prevent crisis and unintended consequences in the future.

A Last Will and Testament (often just referred to as a “Will”) is a document that gives a person the opportunity to designate where their assets go after they pass away, and who is responsible for their funeral arrangements, children, and for the administration of their last wishes. A Will can be a very simple document or it can be tremendously complicated, and the amount of money someone has is not always a good indicator of how simple or complicated their document is going to be. Factors such as the intended heirs under a Will, any trusts that need to be included, the conditions of any gifts made to heirs, or any specific bequests the testator (signer of a Will) place in a Will are the most common complications of a Will. Tax savings are also a concern, ranging from New Jersey inheritance tax to estate taxes on the federal and possibly the state level, to capital gains tax consequences after death. The most common after-death tax paid in New Jersey is the inheritance tax, paid at a rate of approximately 15% on any transfers to non-lineal (child, grandchild, parent, grandparent) heirs. There are, as one might expect, opportunities to minimize this tax given prudent planning, but New Jersey law especially rewards advance planning. Tax planning here may also involve being less a question of avoiding all tax, rather than just minimizing the amount of tax liability an estate might have.

A General Durable Power of Attorney provides someone else (an Agent) broad legal authority to act on behalf of the person signing the document. The authority can be anything from opening and closing account to buying and selling assets, and paying bills. The document does not usually give an Agent authority to make medical decisions, but almost anything else is a possibility. Powers of Attorney can also grant an Agent the ability to make gifts, even to themselves. While such a power can be important for planning purposes, it can also be misused to devastating effect. A person designating an Agent must therefore be absolutely sure they trust the Agent, and must be willing to reevaluate the document from time to time as family dynamics evolve.

A healthcare proxy or similar medical document accomplishes two main tasks: it allows a person to designate someone to make medical decisions on their behalf if and only if they cannot, and it gives that person an opportunity to specify some of the specific wishes and desires the person has. It is important to balance the specificity of those desires against general guiding principles which can more easily be conveyed by a conversation. Archer Brogan attorneys counsel clients as to the range of directives a person can place in such a medical document, and ultimately draft a document that gives the client peace of mind that their wishes will be followed if they are unable to communicate them.

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