August 10, 2008. Do you remember: Michael Phelps won his record 8th gold medal at the Beijing Olympics, Pádraig Harrington won the rain delayed PGA Championship at Oakland Hills Country Club, soul singer and actor Isaac Hayes died, AND my first Planning Matters column was published in the Port Huron Times Herald? I had written a number of legal articles over the years. I edited eight of the general interest articles as newspaper columns. In early 2008, I emailed those eight columns to the editors of every newspaper in St. Clair, Sanilac and Lapeer Counties, along with my bio, picture and permission to publish the columns.
With the exception of the advertising agents of two of the papers inviting me to pay to publish the columns as advertising, I heard nothing but crickets for months. Then about four months after I emailed the columns, I received a call from Jeanie Ruddick, then executive editor of the Times Herald. She said, “Hey Matt, these are pretty good. Can we use them? I would like to start Sunday.” I said, “Of course you can.”
Those eight columns were a hit with readers and Jeanie asked me to continue writing columns. For the next two years until she took ill and passed away, I sent my column to her weekly and we became great friends. I still miss her. In the last ten years, my column has been in every Sunday’s edition of the Times Herald all but about five times. Also in the last ten years, we have seen major legal changes in estate planning and elder law, which have been the primary focus of my law practice since 1999. The folks in Lansing and Washington DC have to justify their existence by regularly passing new laws.
In 2008, the year my column was first published, there were significant changes in the laws relating to the instructions you should include in your health care power of attorney. Since 2008, if your health care power of attorney does not include the power to make mental health care treatment decisions, then your patient advocate would be unable to make those decisions for you, such as regarding Alzheimer’s, dementia, anxiety or depression. Similarly, if anatomical gift powers are not included, your patient advocate cannot make any decisions regarding your organ donations or other anatomical gifts.
In 2010, our state adopted the Michigan Trust Code, which significantly changed the rules for trusts, how they are interpreted and how they are administered, many of which are not favorable to trustmakers. Fortunately, there were also provisions in the Michigan Trust Code to allow trustmakers to avoid many of these unfavorable provisions. Since 2010, you must include numerous additional terms in your trust if you want those unfavorable provisions of the Michigan Trust Code to be overridden.
If your trust is only about 20 or 30 pages long, the likelihood is that it will still be subject to many of those unfavorable provisions. More comprehensive trusts of say 50 pages or more would likely include terms to address and avoid those unfavorable provisions of the Michigan Trust Code.
2012 brought about some major changes to financial power of attorneys, including changes that affect your ability to protect your assets in the event of a nursing home admission. Without proper updated instructions, in the event of a nursing home admission, you may be unable to protect your assets for your loved ones. You may end up having to spend them down to certain limits before qualifying for Medicaid to pay for nursing home expenses. Also since 2012, your financial agents in your financial power of attorney are required to sign a 1 to 2 page statutory acknowledgement form that they are acting on your behalf.
In 2014, there was a major rewrite in the Michigan Do Not Resuscitate (DNR) statute. If your health care treatment documents do not comply with the requirements of the new statute, your wishes for a DNR may not be followed. Two weeks ago, I reviewed a senior facility’s DNR form; not only did it not comply with the current DNR statute in place since 2014, it did not comply with the previous statute.
Beginning in 2016, for the first time, the state of Michigan has allowed you to designate the person(s) who would handle your funeral and final wishes. If you do not designate a funeral representative, your closest heir(s)-at-law are in charge, regardless of what your wishes are or what you have included in your prepaid funeral.
The amount of assets that you can leave estate tax-free to loved ones has risen since 2008. The federal estate tax exemption amount in 2008 was $2 million, which rose in fits and bursts to $11.18 million in 2018. And starting in 2010, a spouse’s unused exemption amount at death is portable, in that it can be transferred to the surviving spouse, and added to the survivor’s exemption amount.
I’ll bet there have also been changes in the last ten years in your personal and financial situation, such as births, deaths, marriages, divorces, illness, injury, disability, retirement, the stock market goes up and the stock market goes down.
There are also changes in your estate planning attorney’s experience and training. Many attorneys regularly attend continuing professional education programs. As a result, they should always be improving. However, attorneys are one of the few professions in Michigan who are not required to take any continuing professional education as a condition to maintain their licenses to practice law. And many do not. It is not unusual for the divorce, criminal, real estate or personal injury attorney who does estate planning, to never attend estate planning or elder law continuing professional education.
Estate planning is the legal equivalent to heart surgery. Estate planning attorneys are attorneys who have the majority of their practice devoted to estate planning and elder law matters and have comprehensive knowledge and experience in six key legal areas: estate planning, elder law, business, real estate, taxation and probate. If your estate planner is not familiar with all six legal areas, he or she may not be able to properly advise you on estate planning matters. On almost a daily basis in our office, we are repairing these plans which are drafted by estate planners who are clearly unfamiliar with all six of these legal areas.
Because of all of these changes happening all the time, I recommend that you review your estate plan with your estate planning attorney on an annual basis. By reviewing your plan and knowing what options are available to you, you should be able to make sure that your plan still meets your needs. But how do you know what options are available to you? Review my prior columns.
Over 500 of my columns have been published in the Port Huron Times Herald newspaper and over 30 columns have also been in Savvy magazine, also published by the Times Herald. Many readers have told me that they have cut out my columns and have saved them for future reference. If you haven’t cut the columns out and have an internet connection, you can still access my columns. Most all of my recent columns and many of my older columns have been posted on www.thetimesherald.com website, some of which are accessed by subscription.
In addition, all 500+ of my columns going back to 2008 are on my website at www.happylaw.com. You can use Google to find anything on the website. If you type “happylaw.com” in your Google search bar before you type the topic for which you are searching, the columns on the website relating to that topic will usually be near the top of the search results after the Google ads. If you want to limit the Google search to just the one website, type in “site:happylaw.com” immediately before you type the topic for which you are searching. Then, only the Google ads and the search results from www.happylaw.com will be shown.
So don’t think that once you do your estate plan, you can just kick back and forget about it. Make sure you review it every year with your estate planning attorney.
By Matthew M. Wallace, CPA, JD
Published edited August 12, 2018 in The Times Herald newspaper Port Huron, Michigan as: Everything changes; update your plans