Understanding Living Wills

Expressing Wishes in Writing

Many people do not understand the difference between a living will and a final will and testament. While both are very important legal documents, a "Living Will" is completely different form a "Final Will and Testament". A "Final Will and Testament" specifies to whom individuals will leave personal assets, property, valuables, or custody of minor children. A "Living Will" is for use in a health care aspect. Individuals without tangible assets may still wish to enact a "Living Will".

So, what is a "Living Will" anyway?

A living will or advance directive generally directs health care providers whether or not to use heroic treatments or extraordinary measures that would delay death, such as breathing machines (respirators/ventilators), or to stop such treatments if they have been started. Individuals can also specify their views about giving food and water through a tube (artificial nutrition or hydration), as well as the length of time such treatments are to continue.

Who carries out these wishes?

The party responsible for following specified wishes is completely up to the patient. A Health care Power of Attorney is given to the person named to make medical decisions predetermined by the patient. This person is called a "health care agent" or "proxy." The agent or proxy is the voice of the patient and voices only the feelings and thoughts that the patient has expressed. They are to present decisions in an unbiased manner, regardless of their own viewpoints.

Will physicians and staff ignore the patient and go directly to the Power of Attorney or Proxy?

No. Make no mistake, patients' thoughts, feelings, and values take priority over anything else. Health care providers will provide any available information so that patients may make an educated decision, but the final decision rests with the patient and those wishes will be respected. A health care Power of Attorney or Proxy only becomes effective in the event that is physically or mentally unable to make their own choices known.

What happens if there is not a Living Will or Advance Directive in place?

The decisions of health care become the responsibility of next of kin, even if the patient would not want that person to be involved. If the patient does not have proof of their wishes outlined, there is no way for anyone to know what they would have wanted.

The topic of living wills or advanced directives may be one of the most uncomfortable conversations a family ever has, but the only way to ensure that everyone understands and respects each others' wishes is to maintain an open dialog. This discussion will also relieve some of the stress and tension from grieving family members during a difficult time.

Article Source: http://EzineArticles.com/7397666

Reasons Why It Is Important to Assign Someone Power of Attorney

Establishing the extent of, and limitations to, the agent's power is essential to a successful relationship between the two parties. An agent can be anyone the principal trusts (who is typically 18 years old or older) to carry on the principal's important matters, which may include financial, personal tax, and real estate matters. The letter of attorney may identify alternative agents if the named agent dies, becomes legally disabled, resigns, or refuses to act on behalf of the principal. A letter of attorney sets the standard for the amount of authority that the agent will have. It should be very specific about what powers are being granted and what limitations are placed on these powers.

With a durable letter of attorney, the document typically states that the transfer of power is effective immediately or when the principal is unable to coherently make decisions on his/her own due to some disability or incapacity. If the durable letter of attorney is to become effective when the principal becomes disabled or incapacitated, the definition of "disability" and "incapacity" should be included in the power of attorney, along with a method of showing the existence of a disability or incapacity. This helps the agent and third parties know when the powers pass to the agent. This is important because some third parties may be cautious about recognizing the agent's power to act on behalf of the principal. A statutory power of attorney, simply tracks the language from the State's letter of attorney statute. To make a legally binding, it must comply with all state laws, and should be signed, dated and notarized by the principal.

Medical power of attorney assigns an agent to make health care decisions for the principal when a physician certifies in writing that the principal is no longer able to make these important decisions. For example, a person is unable to make health care decisions while in a severe coma. Despite the significant grant of power, an agent is obligated to follow the principal's instructions when making decisions on his/her behalf and the principal may revoke the authority granted to the Agent. Two witnesses must be present for the signing of the written medical power of attorney, and there are limitations on who may serve as witnesses.

The letter of attorney is a valuable tool that can provide the principal with the peace-of-mind that his/her affairs will be taken care of. If you would like to know more about durable, statutory and medical power of attorney, consult with a trusted legal professional.

Article Source: http://EzineArticles.com/7455977

Planning for Incapacity: Control Your Fate

Mention estate planning and most people think of Wills and Trusts. But a good estate plan includes things to help you if you become incapacitated (Alzheimer disease, dementia, coma, vegetative state, severe illness, etc.). Three documents should be considered: an Advance Healthcare Directive, a Power of Attorney for Finances, and a Trust. The first two are vital. The third is usually advisable, but may not be necessary in all cases.

An Advance Healthcare Directive is sometimes called a living will or a power of attorney for health care. It is a document that tells your doctors and your loved ones whether you want to be placed on life support, and who will have authority to access your medical records and consent to treatment for you. (It is a good idea to name at least one backup as well.) Be sure to discuss your wishes with the person you nominate as your decision maker. Not everyone is comfortable with such responsibility. You should also discuss these things with your loved ones. It's always easier to hear when things are calm, rather than suddenly learning of your wishes in a crisis situation.

A Power of Attorney for Finances appoints someone to handle your money, your property and your bills when you are incapacitated. The person appointed is called an attorney-in-fact," which has nothing to do with being a lawyer (a lawyer is an attorney at law). The person nominated should be someone who is good with money and responsible enough to care for your property.

Sometimes the Advance Healthcare Directive and the Power of Attorney are sufficient, especially if you have few assets and nothing very complicated. But for many people, having a Trust is also a very good idea. Think of a Trust as being a special box into which you place your assets (bank accounts, stocks, your home, rental properties, etc.) The person you appoint to take care of the box is called the Trustee. This person is NOT the Executor. An Executor is appointed in a Will, approved by a court, and only has authority after you die. A Trustee generally does not need court approval, and can handle things during your lifetime, as well as after your death. A Trust can provide greater protection and easier management than relying upon a Power of Attorney alone.

The number one mistake people make in estate planning is putting things off until it's too late. Without a directive, your care is left to fate. We all hate to think about our own mortality, so most of us do nothing. As the saying goes, "Failing to plan is planning to fail." Don't be the next headline court case because you failed to provide for your end-of-life wishes. Don't leave your family unable to mange your affairs without a court order. With proper planning, you are in control. Make arrangements. It's unpleasant to think about, but believe me - you'll feel much better once it's finished.

Article Source: http://EzineArticles.com/7470211

Expungement - How Long Does it Take to Expunge a Criminal Record?

In legal terms, an expungement is a legal procedure where someone who is a first time offender tries to have the records of their offense sealed by the courts, thus making them unable to be seen in police and federal criminal databases. When the record is sealed, the legal term commonly used is that it has been "expunged", essentially making it as if it never even happened. You should not get the terms "expunge" and "pardon" confused however, as they both mean very different things in the legal system. When a criminal record is expunged, as far as everyone is concerned, the record never existed in the first place. If someone is granted a pardon, they essentially given forgiveness, but the record still remains on their profile and is never erased.

There are a number of reasons why someone would seek expungement and every legal jurisdiction is free to set their own rules regarding how the procedure is carried out. It is widely accepted that the word expunge means to take a record away from where it can be seen for general review. However, a large number of states have provisions set up so that the expunged records are not gone completely from databases that are accessible by police officers, judges, who made need the information to determine future sentencing and lock up facilities, which may house an inmate for a future conviction.

Keep in mind, though, that not just any crime can be expunged. There are certain crimes that are eligible and others that are ineligible for expungement. Most crimes are able to be expunged as long as a certain number of requirements are met beforehand. Some of these include things like waiting a certain amount of time between the crime and requesting expungement, not having anymore related crimes, having less than a certain number of crimes, the cannot be too serious of an offense, and a probation period completed. Some of the crimes that are ineligible to be expunged include felonies where the victim was younger than 18, rape, sexual assault, corrupting someone who is underage, sexual annoyance and obscene gestures aimed at or pornography involving an underage individual.

As mentioned earlier, each jurisdiction can set its own expungement rules. And each state can determine what can qualify to be expunged, as well as decide to not allow any records to be expunged whatsoever. If a record is eligible to be expunged, it can take anywhere 3 months and sometimes as long as year for more complex crimes. The average should be around 6 months however.


Article Source: http://EzineArticles.com/3890259

Power of Attorney and Living Trust: Why Do I Need Both?

A Trust and a Power of Attorney for Finances serve two separate, but complimentary functions.
A Power of Attorney for Finances appoints someone to handle your money, property and bills when you are incapacitated. The person nominated should be someone who is good with money and responsible enough to care for your property. The person appointed is called an "attorney-in-fact", which has nothing to do with being a lawyer. A lawyer is an "attorney at law". A Power of Attorney for Finances is sometimes called a Durable Power of Attorney. "Durable" means the Power of Attorney remains valid, even if you become incapacitated. There can also be a "power of attorney for healthcare," that is a separate document and unrelated to your finances. Most lawyers mean a Power of Attorney for Finances when they say "power of attorney." If they mean the kind that is for healthcare, they generally say so.
A Living Trust can provide greater protection and easier management than relying upon a Power of Attorney alone. Think of a Trust as being a special box into which you place your assets (bank accounts, stocks, your home, rental properties, etc.) The person you appoint to take care of the box is called the "Trustee". This person is NOT the "Executor". An Executor is appointed in a Will, approved by a court, and only has authority after you die. A Trustee generally does not need court approval, and can handle things during your lifetime "and" after your death. This is why it is called a "living" trust. It is customary (though not required) to name the same person as Trustee and as attorney-in-fact, so that control of both Trust and non-Trust financial matters are centralized with one person.
Even if you have a Trust, you still need a Power of Attorney because it applies, during your lifetime, to management and control of your property that is "not" in the Trust. Certain property does not get put into your Trust during your lifetime. For example:

• If you try to title your IRA to your trust, the IRS will treat that as an early withdrawal of the entire account. Your attorney-in-fact can direct IRA investments, contributions and withdrawals.


• If you're receiving social security, your right to benefits can only be held personally, not in a Trust. Once a monthly benefit is paid to you, the amount paid can be placed in your Trust, but not prior to payment. Your attorney-in-fact can transfer social security payments into your Trust and access your records with the Social Security Administration.


• Your attorney-in-fact has authority to prepare and sign your personal tax returns or speak to the I.R.S. about your taxes. Your Trustee does not.


• Your attorney-in-fact, but not your Trustee, can make Medicare benefits elections and enforce your rights under Medicare.


• If you forgot to put an asset into your Trust, your attorney-in-fact can make that transfer.

A good estate plan contains both of these important documents, but if you can only have one, choose the Power of Attorney. Without it, your loved ones will need a court ordered conservator or guardian to handle your property. This requires an expense and very public procedure.

Article Source: http://EzineArticles.com/7470816

How Is Child Custody Percentage Determined in an Uncontested Divorce?

Uncontested divorces are generally cheaper and less of a hassle, making them very popular options for couples who are pursuing a divorce. One of the most hotly contested issues in a divorce is child custody, although when an uncontested divorce is pursued both parties must agree on an arrangement. Otherwise, the divorce turns from an uncontested one into a contested one. Lawyers may still be consulted during the divorce process when the other spouse does not contest it, but generally both parties must agree on all issues outlined in the divorce agreement including child custody, child support, visitation rights as well as asset division and other legal matters. The moment that any of these items cannot be agreed upon, the divorce turns contested in which case the Court may ultimately determine the terms of the agreement and child custody.

Whether to pursue a 50/50 child custody arrangement or a 60/40 arrangement or any other division of time spent with the child is largely up to the parents in an uncontested divorce. Cases of joint physical custody typically involve an arrangement that has both parents spending relatively equal amounts of time with the child. In cases of sole physical custody, the child may live with one parent, but that does not mean the non-custodial parent is not able to see the child. Visitation rights (holidays, weekends, etc.) are still involves in many cases of sole physical custody. Joint legal custody, which means both parents may make decisions involving the child's health care, religion, education, etc., may be present even if sole physical custody is present.

When determining the child custody arrangement while pursuing an uncontested divorce, it is important that both parties be fair with the other. Joint custody, whether physical or legal, should only be an option if both parents provide a safe, nurturing environment for the child. If this is the case with both parents, finding a way to divide the time equally will be helpful in the pursuit of a non-disputed divorce. The parents may also opt for sole physical custody in which one parent sees the child on weekends and holidays while still pursuing an uncontested divorce as long as both parties agree to the arrangement.


Article Source: http://EzineArticles.com/5985719

LLC FAQs - What Is an LLC?

When in the process of creating a new company, the business organizers have several options to choose from. The decision will impact tax status, liability and how the profits are shared. Although the options depend on the type of business that is being formed, owners can choose from corporation, sole proprietorship, partnership or the relatively new limited liability company (LLC).

The LLC is a flexible option for organizing the owners of a company. The LLC partners are called associates. Individuals, partnerships or any other business entity can all be associates in an LLC. The main benefit for choosing this method is that all owners are protected from any losses that the LLC might incur. The company is an entity on its own. Associates are not personally responsible for taxes, and if it is sued, only the company itself will bear any responsibility from damages. The main benefit to forming an LLC for the associates is the ease in which it is possible to get the profits. The losses stay on the books of the company.

This form of a company has been on the law books for over 30 years. In 1977, it began in Wyoming, but adoption was slow until Florida followed suit in 1982. It was in the 1990's that forming a company as an LLC really took off and started becoming a popular option that took the place of the other business ownership formats. Since then, it has remained on of the most popular options when creating a new business.

The structure of an LLC is simple. There can be an infinite number of partners in the entity, or there can be just one. Although corporations require bylaws and annual meetings for shareholders, these are not required by an LLC. The only requirement is to record the formation of the company with the secretary of state and pay the proper filing fees.

Among the many benefits of forming an LLC, there are a few disadvantages to associates who choose to structure their company this way. Since each state has its own laws governing LLCs, your company will be treated differently state to state. The earnings of the members of an LLC are also subjected to a self employment tax. This is not the case for corporations where profits are passed on as distributions and are not taxed this way. The final disadvantage only applies in certain states. Some states will apply a tax to an LLC but not to a business formed as a partnership. In those states, it may make more financial sense to form a partnership instead of an LLC.

Article Source: http://EzineArticles.com/7520499

Valuable Information for People Planning to Form an LLC

Putting up a business is a good way to earn money. While it can be rewarding, it can also come with a few potential risks. For instance, starting a corporation during challenging economic times may not be ideal. This can cause substantial losses especially when you are putting up the corporation on your own for the first time. Forming an LLC can be your best option when looking for an alternative that is less formal but is as flexible as a corporation.

What is an LLC?

A Limited Liability Company or LLC is a relatively new business model slowly becoming popular among small business in the US. This type of business combines the limited liability feature of a corporation and the operational flexibility of a partnership.

The concept of an LLC was introduced in the late 70s. In other countries, this business model came much earlier and has different statutes and guidelines than that of the US.

Advantages of forming an LLC

LLCs in the United States normally call its partners "members." These members benefit from the incorporation while maintaining small business setups. They also report losses and profits on their individual tax returns much like in a partnership or proprietorship. On the other hand, members also have protection from personal liability. This means they are not responsible for any company debts just like in the setting of a corporation.

Moreover, if the company encounters any legal trouble, only the company assets are at risk. Credit companies cannot go after any of the members of the LLC and their respective personal assets. This is the reason many people today want to form an LLC.

How to form an LLC

The first step is to choose a business name. It must be distinct from other businesses in the state. It also needs to have a clear labeling as an LLC. There are states that do not allow using certain words in the name of the LLC. "Bank" and "Insurance" are two examples. Make sure to choose the proper words for the company.

The next step is to file for the Articles of Organization. This document contains a complete overview of your business. The Articles of Organization include basic information such as your business name, address, and its members. It also documents the stocks that your LLC may issue and legitimizes the operation of your enterprise.

Another important document is the Operating Agreement. It contains the written code of conduct of your company. This actually works as a binding contract among the members. This document also needs formal adaptation and amendment. While this may be not required in most states, people who want to form an LLC are advised to at least draft one.

Like other business models, you also have to secure the necessary licenses and permits. These may vary depending on the nature of the business and the state laws. Document filing companies can be of great help when you are too busy to file the necessary documents.


Article Source: http://EzineArticles.com/6936491

Essential Elements of Durable Power of Attorney

Durable power of attorney is used to authorize a person to legally make decisions on your behalf about finances and health care. The 'durable' part keeps the powers in place until death; allowing the attorney-in-fact to carry out duties such as paying bills, making deposits, filing tax returns, or obtaining medical records.

Without a durable power of attorney, relatives won't be able to have any input regarding medical or financial decisions. In order to manage affairs they have to go to court to appoint a person as the attorney-in-fact and obtain permission to act on your behalf. Not only is this inconvenient, it adds to existing burdens of coping with the crisis at hand. This can be averted by setting up financial and medical POA forms.

The simplest way to execute these documents is by hiring a lawyer. Other options include utilizing legal service providers like LegalZoom or purchasing do-it-yourself kits via the Internet or office supply stores.

A financial POA is advisable for everyone that has any kind of personal finance matters. This document grants permission to the designated attorney-in-fact to pay bills; make deposits into bank accounts, financial portfolios, and retirement accounts; file tax returns; and engage in specific transactions documented in the POA form.

Medical power of attorney forms let people state what kind of health care procedures they do or do not want to receive if a life-threatening event occurs. Some states require people to execute a living will in lieu of medical POA, so it's best to obtain legal counsel to determine appropriate forms.

Healthcare directives should include a consent form to release medical records to the attorney-in-fact. Confidentiality laws prohibit medical personnel from releasing personal health information to others without proper consent.

For most people, the logical choice for attorney-in-fact is family members. It's important to realize that the person chosen will have access to sensitive financial and medical information, so it's crucial to choose wisely. In lieu of relatives, attorney-in-fact can also be financial planners, attorneys, or a personal friend.

In most situations it is advisable to designate one attorney-in-fact for both financial and medical durable power of attorney. While not mandatory, having one person in charge can be more efficient. If this isn't feasible, it's best to designate two people that are capable of working well together.

Establishing POA is also an important estate planning strategy. One of the most valuable gifts anyone can provide to their family is making certain their affairs are in order. Settling loved ones estate can be a complicated issue if directives aren't provided in a last will and testament.

Writing a Will helps to expedite the probate process which is used in the U.S. to settle decedent estates. Wills are needed to ensure that loved ones receive the inheritance property you want them to have. They also are used to establish guardianship for minor children and appoint a personal representative to manage estate matters.

Both Wills and durable power of attorney forms grant authority to those charged with specific duties and helps make their job easier. For a nominal fee and a few hours of time, these documents provide peace of mind knowing that everything is in order should the unthinkable occur.

Article Source: http://EzineArticles.com/6598820

By The People, Fairfield CA does over 80 different legal forms to help you get what you need done effectively and efficiently. Give us a call at 707-428-9871. Let us know how we can help you. If it isn't something that we do, we certainly know places to direct to you.

10 LLC Secrets To Protect Your Assets And Financial Future

Most are unaware that a Limited Liability Company may be taxed in four different ways: disregarded, partnership and S or C corporation.

Let me share with you 10 LLC secrets that will not only keep you out of tax trouble but help you better avoid pitfalls down the road.

1. Can an IRA invest in a Limited Liability Company? There are a couple of major issues with this strategy that could create problems with the IRS. First, if you are the manager of the LLC and you are on the LLC checking account that has IRA funds, that means you have "check book control". There are prohibited transactions in where you can not use that money, but more importantly if the signer on the account uses the LLC money for personal use that is a big problem and could create serious IRS issues. The second issue centers around who can be the manager of the Limited Liability Company. Can it be you? Is that self-dealing? That means you are running the same entity that is owned by the IRA and that is an issue with the IRS. It appears that having a separate self directed IRA only to own the real estate may be a better approach. You do want to isolate the safe and risk investments.

2. What are the advantages of a Limited Liability Company over an S corporation? When you capitalize an S corporation, code section 351 allows shareholders to transfer appreciated assets to the corporation taxfree. But, the shareholder who is transferring the asset MUST own 80% of the S corporation.

3. When should an entity convert to an LLC? Many times if you formed a corporation it may be less steps and cheaper to form a new LLC. Many statutes authorize the merger of an LLC with another entity like a partnership or corporation. Some state LLC acts provide that an LLC may NOT merge with another entity unless there is unanimous consent of the members for such merger.

4. What are the consequences if an LLC is "doing business" in a state but is not registered as a foreign LLC? Typically, the entity will need to foreign register where nexus (or a business presence) is located. Even an internet business can make the argument you can be based from anywhere, but if you are working in your home office in California with a Nevada LLC, you have nexus in California. Besides how do you claim a home office deduction when the LLC is not in your state doing business?

5. When do LLC members have limited liability? No member of the Limited Liability Company is personally liable for the LLC's debts and obligations (as opposed to by individual action, such as by personal guarantee or commission of a tort). A member of the LLC has personal liability if a creditor of the LLC has the right to require a member to satisfy a debt of the LLC to the extent that the Limited Liability Company assets are insufficient to satisfy the LLC's debt to the creditor.

6. How will a single member LLC, taxed as a disregarded entity for federal income tax purposes be treated for state tax purposes? Where state laws follow federal laws, a single member LLC would be disregarded for state income tax purposes when disregarded for federal income tax purposes. At least two states have indicated that a single member Limited Liability Company would be taxed as a partnership for state tax purposes, New York and Wisconsin.

7. How much capital must be contributed to an LLC? Except when required by state law, there is no minimum amount that must be contributed to an LLC in exchange for an interest in the LLC.

8. What type of reporting is required if real estate is contributed to an LLC in exchange for a membership interest? According to the Treasury Regulations Section 1.6045-4(b)(1), a transfer of real estate to a partnership must be reported, even though it is tax-free under Code Section 721 (a).

9. When can a Limited Liability Company make distributions to members? LLCs generally can distribute cash or property, whether income or capital, to the members as provided in the Operating Agreement, or otherwise agreed by the members.

10. What is a series Limited Liability Company and what issues does it bring? The series LLC is similar to a corporate controlled group with several operating corporations, but there is only one legal entity. The benefit is that you could put 10 rental properties into one series LLC and provide protection of each property from the other because each is owned by one cell.


Article Source: http://EzineArticles.com/7207342