Don’t overlook digital assets when protecting estate

By Andrew Zashin*

Now, more than ever, we regularly rely on our phones and other electronic devices to not only assist us in navigating our daily life, but also to also store information. This information and the devices which hold that information can range from important to some to invaluable to others. Therefore, have you ever considered what should happen to your possibly invaluable data and your essential devices upon your passing? If not, it may be worth revisiting your estate and probate documents to ensure that your digital asset directives are clear.

What are digital assets? Digital assets are anything from online accounts, including social media and emails, to photographs and documents that you store in your computer. Essentially, anything that’s not on paper and that you access with an electronic device is a digital asset including, but not limited to the following: online communication tools; social media accounts; shopping accounts; photo and video sharing accounts; video gaming accounts; online storage accounts; websites and blogs; and loyalty programs such as credit card, airline, car rental, hotel, etc., and any benefits that may have accrued over time.

In electing what happens to your digital assets upon death or incapacitation, it best practice to first identify your digital assets. In other words, inventory all your accounts, apps, programs and devices. This list should be kept in safe place but also somewhere where your fiduciary can get access. For instance, you can place the list in a safe deposit box or you can upload the information to an online storage site that allows you to give a trusted person access to the information.

Next step is creating or amending your estate documents to memorialize your digital asset directives. Fiduciaries and executors cannot demand access to your digital assets unless you specifically give them authority to do so. This may not matter so much if you wish for your Candy Crush Saga scores to die with you. On the other hand, without a written directive, your loved may not have the ability to access the hundreds of digital pictures on your phone or your iCloud.

In Ohio, you may authorize a fiduciary through a power of attorney, trust document, or will to have access or control over your digital assets following your death or possible incapacitation. Therefore, following your death or incapacitation, your fiduciary submits the pertinent document to the relevant online account manager to effectuate your directives.

However, it is important to note that some online accounts are governed by the “terms of service” or a “privacy policy” of that particular service, such as Facebook and Twitter, which wish for you to determine what should be done with your account after you die. For instance, Facebook offers a legacy contact and Google has an inactive account manager, which assumes that user will take the time to get their digital affairs in order in life.

If you are concerned about your loved ones having the ability to access accounts and other digital assets, you might want to consider giving your fiduciary the passwords to your digital assets and devices. This list should be kept in an extremely secure place and should be regularly updated as your passwords change. Further, if you are concerned about the managing of your digital assets following your death, it is best to speak with an estate planner to ensure that you have your bases covered.

This article originally appeared as a column for the Cleveland Jewish News.

Take control of future by giving away some control today

By Andrew Zashin*

Most people have heard of the legal document called a power of attorney, but few understand the true effectiveness and limitations of a POA. To make sense of this and related documents, one must first unpack an alphabet soup of legal terms.

To start with, the person that initiates and signs the POA is the principal or grantor. The person given authority is the attorney in fact.

A simple POA allows the AIF to do and sign documents on behalf of the grantor. Sounds good in the right situation, right? But, a simple POA is something that is seldom used. Why? A simple POA becomes ineffective upon the incompetency of the grantor of the POA. As a result, when a POA is presented to someone as evidence that the AIF has authority to act on behalf of the grantor, there is no way to know if the grantor is competent, so the POA will most likely be rejected. How is this problem solved?

The Ohio Legislature has solved this problem having created the durable form of a POA which is referred to as a durable power of attorney. The DPOA survives incompetency. Therefore, for the company or individual who is presented with a DPOA by an AIF, there is no need to confirm the competency of the grantor. The DPOA is commonly presented to banks and brokerage houses to allow the AIF to handle financial matters. But, because the AIF does have power to manage financial matters, it is important to name an AIF who is reliable and with whom you have complete trust.

The biggest and most important limitation of a POA or a DPOA is that it becomes void upon the death of the grantor. This is not commonly known but it is a serious limitation. The death of the grantor is the reason it is important to have a will which names a personal representative or a trust which names a trustee. The personal representative or the trustee is able to act on behalf of the deceased. This is an over-simplification and a full explanation is beyond the scope of this article. Suffice it to say that POAs and DPOAs operate before death, and wills and trusts function after death.

A health care power of attorney is a form of DPOA. What distinguishes a HCPOA from a DPOA is the HCPOA deals exclusively with health care issues. The DPOA deals with financial matters. The HCPOA allows the AIF to make medical decisions on behalf of the grantor.

Depending on how the HCPOA is drafted, the AIF’s power can be limited to making decisions regarding the treatment of the grantor, but it can be expanded to making decisions to withhold treatment to the extent it can result in the death of the grantor. Literally, the AIF has the power to pull the proverbial plug on the grantor. Obviously, that kind of power is only given to someone the grantor trusts and is fully aware of the grantor’s desires. The power to end the grantor’s life can also be limited so that it can only be done if a physician, or even two physicians, agree the grantor is in a persistent vegetative state.

The properly drafted HCPOA also opens the door to allow a health care provider to give medical information to the AIF which would otherwise be prohibited because of a patient’s privacy rights, legally known as HIPAA protections.

Like any other matters of legal significance, a DPOA and a HCPOA should be drafted by an experienced attorney. It is tempting to pull a form off the internet, but you will not know if it is a legally sufficient document until, perhaps, it is too late.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:07-05:00March 19th, 2021|Power of Attorney|

Living will, health care power of attorney key documents

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

The health care power of attorney and living will are two of the most important documents you could have in your life care plan. The former names a trusted loved one who would make medical decisions on your behalf in the event you were no longer able to make your own decisions. The latter specifies your wishes on a number of end stage issues, including palliative care and resuscitation.

A health care power of attorney document gives you wide flexibility to specify what powers you do and do not want your proxy, or “agent,” to have. For example, you can specify whether or not your agent can consent to disclosure of your confidential health information, to select and admit you to any medical or health care facility, or to complete a do not resuscitate order on your behalf. Of course, in a true emergency situation know that you will receive care, and health care personnel are able to see that you get treatment irrespective of the existence of this document. But this document does allow you to give your agent all or some authority to make the same health care decisions that you could.

Keep in mind that your agent won’t actually be able to make these decisions for you unless and until you should become incapacitated and cannot make decisions on your own behalf. When selecting your agent the most important consideration is whether you feel that you can trust him or her, not only make sound decisions on your behalf, but to make those decisions in keeping with your faith and values. And, of course, it is extremely important that you make your agent aware of your wishes.

The second important document in your life care plan – aside, of course, from an actual will – is a living will. A living will specifies whether you would or would not like certain types of life-saving efforts. For example, you can state that CPR is acceptable, but artificially supplied nutrition or hydration is not. A living will document does not remove health care providers’ responsibility to provide care to make you more comfortable. But, instead, it deals directly with the sort of life supporting care that would be intended to postpone death.

Both health care power of attorney and living will forms are widely available online and from health care providers. You will want to be certain that you’ve selected an Ohio-specific form as certain formalities must be observed. The commonly available form – which was prepared as a joint effort of the Ohio Bar Association and a number of medical associations – combines both documents into one, and was specifically created to meet all requirements, no attorney necessary.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

Failing to plan creates big headache for your heirs

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Death – right up there with taxes – is one of the few certainties, yet estate planning is something that many fail to consider until it is too late. Rather than leaving it to your spouse, your children, or worse, the state, to figure out, your best bet is to make your wishes are known while you are still healthy and of clear mind.

The last will and testament, often just called a “will,” is the estate-planning vehicle with which most individuals are familiar. A will specifies how you want your property to be divided. You can divide your estate by percentages, for example, in equal parts to your children. You can designate that certain things go to certain people (your grandmother’s diamond ring to your niece, for example). You can make provisions for the care of pets, and, more importantly, you can make provisions for the care of minor children, including naming the person you would want to become your child’s guardian if you died. You have the ability to be very flexible in creating a will that meets your needs. You don’t even need an attorney to create one for you, though that is certainly preferable; very specific requirements must be met to make sure it is valid.

Of course, there is a variety of types of trusts that you may wish to create. A trust is, generally speaking, a financial agreement that allows a third party “trustee” to hold assets on behalf of one or more beneficiaries. Very often that agreement will include specific instructions about how and when the beneficiaries can get and use those assets. For example, a trustee might be instructed to pay the beneficiary a monthly stipend from the trust. Whether you are wanting to protect your estate from lawsuits, to provide ongoing support for your child until he or she is responsible enough to be trusted with a larger sum of money, to ensure family wealth lasts for generations, to provide for a charity, or for some other purpose, trusts can be an important part of your estate planning.

A financial power of attorney can be created to allow your designated agent – usually a spouse or other trusted loved one – to handle your financial affairs in the event you can no longer do so yourself. A medical power of attorney is similar, but for medical decisions. Living wills specify your thoughts and wishes on the types of life-saving procedures you consent to being used on you and under what circumstances. Organ donation is often a polarizing topic and, if you wish to be an organ donor upon your death, you must enroll in the Ohio Organ Donor Registry and clearly specify which organs you are willing to donate and for what purpose.

Of course, if you don’t take steps to plan, these decisions will be left to your heirs, or possibly even the state. While estate planning is not a pleasant task, it is an important one, and a little planning will both ensure your wishes are followed and save your heirs from a big headache down the road.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

‘Til death do us part’ not as long as you think

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

When a couple gets married, it is common to do a bit of estate planning. A person, for example, might make his or her spouse the beneficiary on any life insurance policies and retirement plans. A joint and survivorship deed on any real property might be executed. The couple might also execute reciprocal healthcare powers of attorney, naming the other as the person who can make medical decisions should he or she become incapacitated.

When that couple has children, they might do some more estate planning. They might take out new life insurance policies to ensure their children will be provided for. They might decide it is time to write wills. And they might select a person or people to be named guardian of their children should the unthinkable happen and they die prematurely.

Estate planning is, generally speaking, planning for what happens to your worldly possessions upon your death. Death, particularly one’s own, is something that no one likes to think about. But barring some scientific breakthrough, it is unfortunately inevitable. What happens next, though, need not be. Most people consider their estate planning when major life events happen – marriage, births and deaths. Should you find that divorce is also going to become part of the time line of your life, don’t forget to revisit your estate plan and revise it appropriately.

After a divorce, wills may need to be changed. Generally an ex-spouse is automatically written out of a will by operation of law, but other items may need to be addressed, such as who will become the guardian of your children if they are minors at the time of your death. And, depending on how contentious the divorce was, there is a reasonably good chance that you no longer want your former spouse to be named as the person authorized to make important medical or financial decisions on your behalf. So, you may need to execute new healthcare and financial power of attorney forms. Real property should have been distributed as part of your final divorce award or settlement, but you should make sure any necessary deeds get properly prepared and filed so that the property is titled the way you intended it to be. Any trusts established by you or on your behalf should similarly be reviewed and revised as necessary, as should custodial accounts. And beneficiaries of life insurance policies and retirement plans may need to be updated.

Potentially more problematic is what happens in the rare event that an individual dies during the pendency of a divorce. For purposes of the probate laws, you are still married until the day you aren’t – that is, you are still married until the day your divorce decree is signed. And, as much as the divorcing parties wish differently, divorces do not happen overnight. In Ohio, a marriage simply cannot be terminated in less than 30 days, and as a practical matter, it is more likely to take several months to a year or more.

If you are considering filing for a divorce, you may find it beneficial to ask your domestic relations attorney about steps you can take to manage your estate plan before you file, as once the divorce proceedings have begun, you will be limited by both court order and law as to what you can change.

You should not – and the courts will not allow you to – use this as a tool to hide marital property from your spouse. But if you, for example, have children who were not born of the marriage, have a terminal illness, or are about to undertake an especially dangerous action such as contracting to work in an active war zone, it may be particularly important for you to consider these issues.

No matter your situation, a conversation with your attorney and a little planning can ensure that your loved ones will be taken care of, while those you no longer love will not unintentionally benefit.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

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