Estate Planning

 Beneficiary Deed

The Arizona Beneficiary Deed was signed into law by the governor in 2001 and exists pursuant to Arizona Revised Statutes § 33-405.  By signing and recording an Arizona Beneficiary Deed, the owner of property located in the state may cause his or her interest in the property to be conveyed to the named beneficiary at the time of his or her death.
There are several advantages to using an Arizona Beneficiary Deed:

Beneficiary Deed:

1) Arizona real property transferred in this manner is not considered to be part of the decedent's probate estate and therefore, avoids the cost and delay of probate.  The typical cost of an uncontested probate in Arizona can be between $3500 and $5000 and is a lengthy and public process.  Property transferred by Beneficiary Deed avoids this entirely.

2) The Arizona Beneficiary Deed allows conveyance of property in a much easier way than creating and administering a trust.  There are no trust documents and no trustee needed.  The owner retains complete control over the property, including the ability to change the beneficiary, sell, encumber or otherwise deal with the property without any restrictions or limitations.

3) An Arizona Beneficiary Deed drafted and recorded by your Agins Law Firm estate planning attorney does not
transfer the property as a gift and, therefore is not subject to either federal or state gift taxes.

Financial Power of Attorney

An Arizona Durable Financial Power of Attorney allows you to designate someone you trust to make financial decisions for you in the event that you are not able to make them yourself because of mental or physical incapacity.  In order to make an effective Financial Power of Attorney, you must be at least 18 years of age, of sound mind at the time it is signed, and living within the State of Arizona.  A durable power of attorney remains effective unless and until (1) you revoke it; (2) a court invalidates it; or (3) no agent is available at the time the document becomes effective.  Arizona is a community property state but the durable power of attorney is not automatically terminated if you and your spouse divorce.  Accordingly, it is advisable to revoke your previous Financial Power of Attorney when you divorce and to make a new one in which another agent is designated who will carry out your financial wishes without conflict.  For the same reason, it is wise to name an alternate agent so that your Financial Power of Attorney does not become ineffective if your primary agent becomes unavailable or unwilling to serve.  It is important to understand that a licensed psychiatrist or psychologist must attest to your incapacity before your Financial Power of Attorney will become effective.

A Financial Power of Attorney is intended to eliminate the need for a court to appoint a conservator if the maker of the document becomes incapacitated - a time-consuming, lengthy and expensive process.  In Arizona, a bank may automatically freeze accounts upon learning of a depositor's incapacity, but the bank also has discretion to give over control of the accounts to an agent designated in a valid Financial Power of Attorney.

Contact the estate planning attorneys at Agins Law Firm today to prepare a Durable Financial Power of Attorney
for you at the same time as you have them prepare your Will or Revocable Living Trust.

Health Care Power of Attorney

There are slight, but substantive, differences between an Advance Healthcare Directive ("AHD") and a Health Care Power of Attorney  ("HCPOA").  The AHD  specifies your wishes concerning the use of various life-prolonging measures and the use  - or non-use - of certain interventions in the event that you are unable to express them to your health care providers yourself. You designate another trusted person,

your "agent," to ensure that your healthcare providers are

made aware of your wishes.

Under a HCPOA you designate someone to speak on your behalf if you are unable to do so.  Your agent is able to
make all healthcare decisions for you (unless you impose specific limitations), including decisions that may not have been anticipated at the time your AHD was drafted.  Therefore, the Health Care Power of Attorney is more flexible because it allows someone other than yourself to address unforeseen medical issues as and when they arise.

Your agent for medical decisions does not have to be the same person to whom you've given your financial power of attorney.  You should be sure that your health care agent has access to the original of the Power of Attorney document and that your primary care provider is kept informed of your agent's name and contact information and of any future changes to that information.  It would be prudent to ensure that your primary care provider has a copy of both your
AHD and your HCPOA in the event that your agents are unavailable in the event of an emergency.

As with all documents intended to become effective at a future time, you should contact your Agins Law Firm Chandler/Sun Lakes elder law attorneys to have your Health Care Power of Attorney reviewed  and updated annually
or as circumstances dictate.

HIPPA Authorization

The Health Insurance Portability and Accountability Act Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.  The Rule requires appropriate safeguards to protect the privacy of personal health information and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The Rule also gives patients rights over their health information, including rights to examine and obtain a copy of their health records and to request corrections.  Although the HIPAA Privacy Rule ensures that a patient's private information remains private, it also prohibits disclosure to just those people you would want to have access to it: your spouse, domestic partner, children, parents, other family members, and close friends.  At the time of your greatest need, those closest to you may be unable to learn of your medical condition or even where you are being treated.  Moreover, HIPAA imposes strict penalties on those entrusted with your healthcare information, making them reluctant to share it with anyone - even close family members.

The solution to this problem is for you to consult with your Agins  Law Firm Chandler/Sun Lakes elder law attorneys to prepare a HIPAA Authorization, by which you can designate those individuals with whom your medical providers can share information about your condition and treatment.  This will give you the security of knowing that those close to
you can remain informed throughout your treatment and for them to be with you if needed.  As with all documents intended to become effective at a future time, you should make sure that those designated in your HIPAA Authorization have an originally-signed counterpart of the document and you should keep your primary care providers informed of their contact information.  Please contact us to draft the original HIPAA Authorization and to revise it periodically so that it correctly reflects your wishes.

Last Will & Testament

There are times when a Last Will and Testament will best serve your needs and other times when a trust may be more beneficial.  These choices, among many others, will best be explained during a consultation with your Agins Law Firm Chandler/Sun Lakes elder law and estate planning attorneys.

The form and signing requirements of an Arizona Last Will and Testament are regulated by Arizona Revised Statutes §§ 14-2501 et seq.   Generally, the person making the Will - the "testator" - must be at least 18 years of age and of sound mind at the time the Will is signed.  The statutes contain specific requirements governing execution (signing) of the Will and after the death of the testator, the Will must pass through the probate process.  Arizona does permit a "Pout-Over Will," by which any estate property not included in a trust automatically pours over into the trust and therefore, avoids probate.

Medicare Planning

Careful advance planning is needed to ensure that your assets aren't totally depleted by the cost of long-term nursing home or assisted living facility care.  One of the greatest fears expressed by people approaching senior status is that they will not be able to afford the level of care they desire if they become unable to live independently.  This has far-reaching effects not only for the individual but for our society at large because the expenditure by Medicaid to maintain people in nursing homes has become one of the largest non-defense government expenditures in the United States and will only continue to grow as our society ages.

Medicaid Planning:

According to Elder Law Answers, "[m]ost people end up paying for nursing home care out of their savings until they run out. Then they can qualify for Medicaid to pick up the cost. The advantages of paying privately are that you are more likely to gain entrance to a better quality facility and doing so eliminates or postpones dealing with your state's welfare bureaucracy--an often demeaning and time-consuming process. The disadvantage is that it's expensive."  By contacting your Agins Law Firm Chandler/Sun Lakes Medicare/Medicaid attorneys we can help you with Advance Medicaid Planning now before this expense becomes a crisis.

As mentioned on our Asset Protection Trust Page, there are limitations on how a person's assets may be distributed within 5 years of entering a nursing home or assisted living facility when Medicaid is involved.  By engaging in Advance Medicaid Planning we can assist you and your loved ones to make the best use of your assets now and in the future,
so please safeguard that future and contact us now.

Medicare Planning:

Medicare is the government program that provides healthcare coverage to individuals aged 65 and over.
Medicare Part A provides coverage for:

  • inpatient hospital care;
  • inpatient stays in most skilled nursing facilities, and
  • hospice and home health care services.

  Medicare Part B  provides coverage for:

  • doctor and clinical lab service;
  • outpatient and preventive care;
  • screenings and surgical supplies; and
  • physical and occupational therapy.

  Medicare Part C (also called Medicare Advantage) combines parts A and B in one plan and can also be combined with Medicare Part D - Prescription Drug Coverage.

The choices of plans and coverage are bewildering and seniors often need assistance in deciding which plans and what levels of coverage make the most sense for them.  Agins Law Firm Medicare attorneys can assist in helping our clients and their families navigate these difficult choices to ensure that they are adequately covered and protected.  Contact your Agins Law Firm Medicare/Medicaid Planning attorneys now for help with Medicare Planning to ensure
that your coverage meets your needs.

Mental Health Care Power of attorney:

One definition of the word "attorney" is "a person legally appointed or empowered to act for another - an agent."  A "power of attorney" is the document by which that appointment is made.  Powers of attorney come in different flavors: A financial power of attorney empowers your agent to act on your behalf concerning financial matters.  A health care power of attorney allows your agent to make medical decisions for you.  A Mental Health Care Power of Attorney  ("MHCPOA") names the person you want to make decisions concerning your future mental health treatment if you should become unable to do so.  You may choose one or more persons to make those decisions and you may name an alternate agent in the event that the persons you designate are unwilling or unable to serve in that capacity either temporarily or permanently...

In order to make an effective MHCPOA, you must be 18 years of age and of sound mind at the time you sign the document.  The document must be signed in the presence of witness OR a notary public.  The Mental Health Care Power of Attorney becomes effective only when a licensed psychiatrist or psychologist attests that you are no longer able to give informed consent regarding your treatment.  Furthermore, the MHCPOA includes a HIPAA waiver of confidentiality for your agent or representative.  The Arizona Durable Mental Health Care Power of Attorney form advises that you speak to your doctor, clergyperson and a lawyer before executing the form.

We suggest that you contact your Agins Law Firm elder law and estate planning attorneys today to discuss whether you would benefit from having us prepare an Arizona Durable Mental Health Care Power of Attorney for you.

Revocable Living Trust:

The difference between a Will and a Trust is that the Will becomes effective only upon your death, whereas you retain complete control over the corpus (assets) of a Trust while you are alive. You have the ability to make changes and, in the case of a Revocable Living Trust, you even have the right to terminate the Trust during your lifetime.  A Trust allows you to circumvent the Arizona probate process, which is often costly, needlessly public and time-consuming.  With an Arizona Revocable Living Trust, you can designate any competent adult or qualified institution to act as your trustee, empowered to manage (administer) the assets in your Trust.  The terms of the Trust will govern how it is administered and how its assets are distributed, so that the Trustee does not have unfettered discretion, but must carry out the wishes of the Trust's grantor (the "settlor").

The settlor, who usually is the initial trustee, administers the Trust during his or her lifetime and upon his or her passing, a successor trustee (named in the Trust document) assumes administrative duties.  Moreover, the settlor usually is the only beneficiary during his or her lifetime.

Several advantages of a Trust over a Will are:

Avoidance of the cost and delay of probating a Will;

  • A named trustee can manage the assets for a settlor's benefit if she becomes incapacitated, thus eliminating the need for (and the cost of) a court-appointed conservator;
  • Reduction of taxes for a married couple in certain cases (contact us to learn more about this);
  • Beneficiary protection by setting up a continuing trust arrangement that controls assets for those who are either too young, or incapable of managing their inheritance if distributed in a lump-sum.

Estate planning is a process that requires the weighing of alternative options in order to provide each client with the right combination of tools and strategies to best fit his or her situation.  Please make an appointment today with an Agins Law Firm Chandler/Sun Lakes Trust attorney to help you begin the process of charting the course of your financial future in a way that fully reflects your desires and wishes, or to review your existing Trust to ensure that it properly fits your current and ongoing financial needs.  In addition, Agins Law Firm can serve as Trustee of your Revocable Living Trust and can administer it in accordance with its terms.

Ready to find out more?

Do you have questions? Please pick up the phone and give us a call. We would love to help give you the guidance and counseling you need.