Planning for the Future / Dealing with the Past
The Burley Law Office - Your Family Lawyer

440-967-1529

Planning for the Future / Dealing with the Past

Four Documents that Every Adult should Have: #3 – Last Will and Testament

by Betty Burley on 11/07/18

This is the third in a series of Four articles that discuss the four documents that I think every adult should have.

Last week I discussed the Ohio Living Will Declaration, which tells your health care team what your wishes are if you should no longer be able to make informed health care decisions for yourself because you are terminally ill or permanently unconscious.

This week the topic is your Last will and Testament – more commonly known as your “Will.”

3.  Last Will and Testament – Your Will

What is a Last Will and Testament?

A Last Will and Testament (Will) is a legal document that serves several important purposes:

1)      It gives instructions that tell the people who survive you and the Probate Court how to distribute your property after you die;

2)      It names an Executor – a person who will ensure that your last wishes are followed;

3)      It gives your Executor powers – including the power to pay your creditors, to file a last tax return; to distribute, sell or dispose of your property, and to operate your business until it can be sold or wound down.  As technology has become a more important part of our lives, your Will can even give your Executor the power to close your Facebook account and archive your email; 

4)      Your Will allows you to divide your money and property the way that you want – instead of the way that state law dictates for people who die “intestate” (without a Will);

5)      If you have minor children, your Will tells the court who you would want to act as your child’s guardian if you die;

6)      If you leave money for your children, your Will can provide for a Trust to be set up for your children and name a Trustee who will take care of the money for the children, releasing it for purposes that you have laid out in writing, until the children reach the age that you choose to inherit the remaining money.

Who should have a Last Will and Testament?

Every adult should have a Last Will and Testament.  If you die without a Last Will and Testament, you are said to have died “intestate.”  If you die intestate, the court will need to appoint someone as an administrator to wrap up your affairs.  Unless you took steps to keep your bank accounts, car titles and real estate out of probate (a plan we will discuss in a later article), your property will be liquidated and transferred according to the Ohio Revised Code.

Why do I need a Last Will and Testament?

I have heard many people state that they are still young – they don’t need a Will.  However, if you have any money or property whatsoever – even your last paycheck sitting in your checking account – someone is likely going to have to open an estate to transfer what you own.  If you haven’t left a Will, someone will have to apply for the powers that your Executor would have had.  If more than one person wants the job, then there may be a fight.  If nobody steps up, then the court may name a complete stranger as the administrator of your estate.

Where do I go to have a Last Will and Testament made for me?

While there are many online companies that will allow you to enter information into a form and then will spit out a document for a low, low price, the old adage applies, “You get what you pay for.”  Unless you understand all of the legalese in both the document and the website, the document that you create yourself without ever talking to a lawyer may or may not accomplish what you want.  In some cases, that document may not even be valid.  I think you owe it to yourself and your potential heirs to talk with an attorney about your wishes.  Having a Will drafted by an attorney probably isn’t as expensive as you think.

The next article in this series will discuss your Ohio Statutory Form Power of Attorney – what it is, what it does (and does not) authorize, and why you need it.

***

Attorney Betty Burley has been practicing law in Vermilion, Ohio since 2010.  She offers consultations in person, by telephone or through Facetime / Skype.  Attorney Burley offers special pricing on a “Four Documents” package that includes a Healthcare Power of Attorney, Ohio Living Will, Last Will and Testament and Durable Power of Attorney.  Your planning consultation is provided free of charge.  


Call 440-967-1529 or visit our website at www.burleylaw.com to schedule your Four Documents planning appointment.

All information provided in our blog posts is intended for educational purposes only.  This article is not intended as, and should not be substituted for legal advice.  Attorney Burley is not your attorney unless you have signed an agreement and paid any required fees.

Four Documents that Every Adult Should Have: #2 – Ohio Living Will Declaration

by Betty Burley on 10/29/18

This is the second in a series of four articles that discuss the four documents that I think that every adult should have. 

Last week I discussed the first of four documents that every adult should have – the Healthcare Power of Attorney.  This week we continue that discussion with information about a document that complements the first- the Ohio Living Will Declaration. 

2.       Ohio Living Will Declaration

Who should have an Ohio Living Will Declaration?

Ideally, every adult (beginning at age 18) should have this important document, as well as a Healthcare Power of Attorney.  These documents are usually executed at the same time because they work together.  Although our chances of actually needing these documents increase as we age, even young people can be gravely injured in an accident or develop terminal illness. 

What is an Ohio Living Will Declaration?

The Ohio Living Will Declaration is often referred to as just you “Living will.”  This is a document that allows you to state your wishes about health care in the event that you are unable to speak for yourself because you are terminally ill or permanently unconscious AND can no longer make health care decisions for yourself.

If, in your doctor’s medical opinion, you no longer have the capacity to make informed health care choices for yourself AND you are terminally ill OR you are permanently unconscious, then, and only then, does your Ohio Living Will Declaration come into play. 

Your Ohio Living Will Declaration has multiple parts.  It tells your physician whether to begin life-supporting measures, including hydration, nutrition and artificial respiration if you are terminally ill or permanently unconscious.  It tells your physician whether or not these same measures should be removed if they already have been started and you are terminally ill or permanently unconscious. 

There are spaces provided in the document for special instructions for your medical team.  My mother passed away in November 2017.  Years prior to that, she told me that if she was unable to take fluids by mouth, she wanted an IV for fluids right up until death, but no feeding tube and no respirator.  She had a fear of being thirsty while she was dying.  She made sure that I knew this as her Healthcare Power of Attorney as well.

Why do I need an Ohio Living Will Declaration?

Several times, a potential client has told me, “My family knows that I want no heroic measures if I am dying.”  I tell these clients that “no heroic measures” may mean something completely different to them than it means to me – or more importantly – what it means to their physicians.  By filling out an Ohio Living Will Declaration, you are transmitting your thoughts about “no heroic measures” to the people who will be caring for you.

Where should I keep my Ohio Living Will Declaration?

Keep this document with your Healthcare Power of Attorney form.  Your doctor should have a copy in your record.  If you know that you are going to be undergoing treatment in a hospital, they should have a copy as well.  Your designated agent in your Healthcare Power of Attorney should know where these documents are – and it is a good idea to give them a copy.

What an Ohio Living Will Declaration is NOT

Your Ohio Living Will Declaration is not the same as your “Will” or your “Last Will and Testament.”  The Ohio Living Will Declaration does not appoint an executor for your estate or tell the probate court how to distribute your money and your possessions.  The Ohio Living Will Declaration and your Last Will and Testament are not substitutes for each other.  You’ll need both documents.  We will talk about your “Will” or “Last Will and Testament” in the third installment in this series.

***

Attorney Betty Burley has been practicing law in Vermilion, Ohio since 2010.  She offers consultations in person, by telephone or through Facetime / Skype.  Attorney Burley offers special pricing on a “Four Documents” package that includes a Healthcare Power of Attorney, Ohio Living Will, Last Will and Testament and Durable Power of Attorney.  Your planning consultation is provided free of charge.  


Call 440-967-1529 or visit our website at www.burleylaw.com to schedule your Four Documents planning appointment.

All information provided in our blog posts is intended for educational purposes only.  This article is not intended as, and should not be substituted for legal advice.  Attorney Burley is not your attorney unless you have signed an agreement and paid any required fees.

Four Documents that Every Adult Should Have: #1 – Healthcare Power of Attorney

by Betty Burley on 10/23/18

This is the first in a series of four articles that discuss the four documents that I think that every adult should have. 

1.       Healthcare Power of Attorney

What is a Healthcare Power of Attorney?
A Healthcare Power of Attorney is a legal document that appoints someone to make healthcare decisions for you if you are unable to speak for yourself. 

Why do I need a Healthcare Power of Attorney?
A Healthcare Power of Attorney isn’t just for elderly people in the end stage of life.  Young people should have a Healthcare Power of Attorney, too.  Why?  Consider this scenario:

22 year old James is on his way home from college for a weekend break.  James has just finished his cross country season.  James doesn’t drink of smoke.  He is in prime physical condition.  James’ car is hit by a drunk driver.  James is thrown through the windshield.  He is unconscious.  His left leg and pelvis are badly broken.  The doctors believe that James will regain consciousness and as there is minimal swelling inside his skull, they believe that his brain will function normally.  His leg, however, needs intervention.  The orthopedic surgeon wants to operate. There are two options – one carries a small risk of paralysis but has a better chance of restoring full function.  The other is less risky, but James will never run competitively again.  James is an adult.  He has not completed a Healthcare Power of Attorney form.  His divorced parents do not agree on his treatment.  James’ surgeon opts for the less risky procedure.  James wakes up.  He is able to go back to college during the next semester.  He is able to walk after some physical therapy, but he never runs competitively again.  He would have chosen the riskier procedure, but it’s too late to revise the surgery.

How do I Choose a Person to Name in My Healthcare Power of Attorney?

I take an active role in managing my health.  Whenever possible, I treat my symptoms holistically.  When my blood pressure started to climb a few years ago, I asked my doctor to give me some time to bring it down myself – through diet and exercise – before putting me on another pill.  I don’t like pain medications.  They make my thinking fuzzy.  Over the counter pain medications give me stomach problems.  I don’t like to take them, either.  I’ll put up with a moderate amount of pain before I pop a pill.  I like to think of surgery as a “last resort.”  I think the body has a great ability to health itself if we give it a chance. 

Why, you might wonder, am I sharing these personal things with you in a legal blog?  The simple answer is that these are the kinds of issues that you need to discuss with the person who is named as your agent in your Healthcare Power of Attorney.  My agent knows what is important to me.  If I cannot speak for myself, he has promised to tell my doctors what is important to me, and if an important decision needs to be made, he has promised to make the decision that he believes I would make for myself – even if he disagrees. 

You should name someone who your trust – someone who would make the decision that they believe that you would make for yourself if you were able – not necessarily the decision that they would make for themselves.

**

The next article in this series will discuss your Ohio Living Will – what it is, and why you need it.

***

Attorney Betty Burley has been practicing law in Vermilion, Ohio since 2010.  She offers consultations in person, by telephone or through Facetime / Skype.  Attorney Burley offers special pricing on a “Four Documents” package that includes a Healthcare Power of Attorney, Ohio Living Will, Last Will and Testament and Durable Power of Attorney.  Your planning consultation is provided free of charge.  


Call 440-967-1529 or visit our website at www.burleylaw.com to schedule your Four Documents planning appointment.

All information provided in our blog posts is intended for educational purposes only.  This article is not intended as, and should not be substituted for legal advice.  Attorney Burley is not your attorney unless you have signed an agreement and paid any required fees.

Custody and Visitation - Never-Married Parents

by Betty Burley on 08/08/18

Many of my "Can she DO that?" phone calls start out the same way.  Never-married parents who have had a falling out go their separate ways and the mother takes the child with her.  For weeks or months, things seem fine.  Father is allowed to visit the children - perhaps even take them for days or weeks at a time.  Suddenly, something changes and the mother won't allow the father to take the child out of her sight.  In some cases, she won't allow access even under her watchful eye.

"Can she DO that?" the distressed father asks.  After finding out more about the situation and checking off the boxes:

  • Never married
  • No court-ordered parenting time

My answer is, "Yes, she can do that - for now."

Ohio Revised Code Section 3109.42(A) says:

An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.

In layman's terms, an unmarried woman who gives birth is that child's sole legal custodian until the father legally establishes paternity and files for allocation of parental rights and responsibilities.  This applies even if the mother has filed for child support and father is current in his payments.  This applies even if the couple has lived together for years and raised the children together without a marriage certificate.

The second part of that section of the Ohio Revised Code is important, too.  It says that when the father seeks an order granting him parental rights and responsibilities, the court must not give the mother special favor in this situation.  From a practical viewpoint, however, the longer the mother is the child's primary caretaker and the longer the father waits to take action, the stronger the mother's case is that she should continue to be the primary caretaker.

There are people who seem to be able to make  informal custody arrangements work for their situation.  When that is the case, my advice to them is to formalize their agreement while they are still in agreement and working cooperatively.   A Shared Parenting Plan or other parenting order puts in place a default schedule that will come into play if the parents are no longer able to agree.  The parents are still able to make flexible arrangements for their child as long as they agree what is in their child's best interest.

***

This is the third in a series of articles that will discuss common questions about child-related issues.  If you have found this article useful, I hope that you will consider subscribing to my blog at https://ohiodivorcesource.com/blog/ so that you will receive future posts.

This article is shared for educational purposes only.  It is not intended as, and it no  no substitute  for a careful reading of your individual court document and advice from an attorney who has actually read your documents.  No attorney-client relationship is intended to be created by sharing this information.  Attorney Burley is not your lawyer unless you have both signed an agreement and paid any required fees or retainer.

Your Child and "Days of Special Meaning"

by Betty Burley on 05/14/18

I had every intention of writing this post last week, but time didn't allow it.  Still, the information is valuable, and I hope that if you are co-parenting a child with someone with whom you are no longer in a relationship, you will take this to heart.


Yesterday was Mother's Day.  Most visitation orders state that the child will be with the "appropriate parent" on Mother's Day or Father's Day.  That means most children of divorce or of never-married parents spent the day with Mom.  I hope that you had a lovely day together.

Dads, your 3, 8 or 12 year old probably doesn't have an income to support buying a gift for her mother.  Yes, I know that "that woman" already receives a substantial portion of your income in the form of child support.  I am, however, asking you to dig into your pocket next year and spring for a small token for your child to present to his or her mother on Mother's Day, on Mother's birthday, and on Christmas.  Dollar Tree is a magical place for a child.  

Many years ago, I was co-parenting my oldest son with my ex-husband.  He had remarried and my son was spending the Christmas holiday with his father.  I made sure that our son had gifts for his father, stepmother and stepbrother.  It was the right thing to do.  He was so joyful.  

Unfortunately, that experience wasn't repeated.  I was younger, and more self-centered, I suppose.  My son returned without a gift for me, and it hurt my feelings.  I never sent another gift because I didn't think his father would reciprocate.  That should never have been the point.  

My son is 30 years old now, and he has a good job and buys his own gifts.  He spent the day with me, his mother, on Mother's Day.  We had a blast.  Despite the many mistakes I made while he was growing up, he turned out to be a really, really great person.

I still wish that I could have  a "do-over."  I wish that I had taken my son to buy gifts for his "other family" for every holiday - or at least to have made a card -  because it would have made him happy.  

Father's Day is just around the corner, so if your a co-parenting mother, this applies to you, too.  A dollar (two if you count the wrapping paper) is all it takes.

Make the next "day of special meaning" special for your child.  You won't regret it when he's 30.  I promise.