Elon Musk of Tesla was asked to fund a six-billion-dollar donation to the UN to address world hunger. He agreed to give provided they presented him with an acceptable detailed plan on how it was to be accomplished. Even such a large gift (2% of his estimated wealth) would not be a permanent solution. Solving world hunger, the effects of poverty, disease, and natural disasters not to mention research and long-term care require on going contributions from all who have means to give. We are all part of the solution and better for the sacrifice of time, change, small one time or regular donations, or a legacy after death thru a will or trust, land, life insurance or an annuity. As an estate planner I encourage my clients to consider gifting through their wills or as part of a trust. There is no limit on estate tax deductions that can be taken for charitable bequests.

Donors age 70 ½ and older may direct lifetime distributions from a traditional or Roth IRA to a nonprofit that counts toward your taking of the required minimum distribution. You effectively bypass income tax on the contribution! You can also avoid estate taxes with death time distributions to nonprofits. The cap for a death time retirement plan contribution is $100,000. There is no charge to update a beneficiary designation form if you decide to add a charity as one of you beneficiaries. These designations can be separate from your will or trust.

Creating a charitable gift annuity or a testamentary charitable remainder trust lets the non-spousal beneficiaries (i.e., children and other issue) of your IRA receive fixed payments of over a longer span of time than the 10-year distribution required by Congress as of January 1, 2020.

If you make a gift of stocks, bonds, and mutual funds you receive an immediate tax deduction for the fair market value on the date of transfer to the nonprofit with no capital gains! You can gift to a specific nonprofit and designate a particular project you like.

When gifting a paid-up life insurance policy, you receive an immediate tax deduction for the cash value of the policy. You have satisfaction knowing you made a significant gift without it affecting your cash now.

Likewise, you can gift a vacation home, commercial building, or undeveloped land. The IRS requires an independent appraisal to establish fair market value and there are additional IRS procedures. If interested check it out online. With these kinds of real property gifts, you can give up to 30% of your adjusted gross income and carry the deduction forward for up to five years. Good news after the gift you are free of property taxes, insurance, maintenance costs AND CAPITAL GAINS TAXES.  You can also keep a lifetime interest and pass the property at death via a life estate deed.

Some fun gifting ideas I have noticed this year are The Church of Jesus Christ of Latter-day Saints donation machines – it is like putting money in for a candy bar, but instead you buy a pair of gloves for a homeless person. They are also promoting The Light the World with Love Campaign that encourages you to do some act of kindness each day from December 1st until Christmas. You can find this online at LighttheWorld.org. I have a sign in my kitchen that reads “Kindness Begins with Me.”  And I believe it does.

I really like buying a cow, goat, some rabbits, or chickens for a family who then learns to raise animals for their milk or meat at Heifer International and eventually they earn enough to sell the excess and further their self-sufficiency. Oh, and it’s just not Christmas without something for children. Over the years we have been involved through various programs – Secret Santa, Angel Trees, the Smile Train, Make a Wish, and Toys for Tots. This year our ladies’ group at church made fleece blankets for at risk children.

I practice elder law and my office fills shoe boxes with small gifts for home bound seniors through our local programs on Aging.

I read a book a few years back titled Christmas Jars and started saving all my change to give jars of coins at the holidays to whoever my heart directs. I see people all around who need to be lifted with a little cash.

Here’s the final tip: Count your blessings at Thanksgiving.  I do which always opens my heart to prepare for Christmas.

DISCLAIMER: The information given in this article is of a general nature and does not create an attorney-client relationship. You should always consult with an attorney one-on-one regarding the specific facts of your situation. November 2021

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

Q. What things can be done to avoid probate?
A. A simple way to avoid probate is to give away property during your lifetime. But there can be consequences because you lose control and cannot recover the item, cash or property just by asking. The new owner has to agree to return something to you or even use funds for your benefit. You should only give away what you can spare. Gifting over $15,000 per person in a year requires you to file a gift tax return with the IRS.
A second thing you can do is to make an asset payable on death. An example is life insurance, an IRA, a 401k, or an annuity. As long as you don’t name your estate or fail to name any beneficiary the property will pass outside of probate to the person you designate. You should name a contingent beneficiary in case the first person you select predeceases you.
Likewise you can use payable-on-death (POD) accounts. These are also sometimes called multiparty accounts. POD accounts do not provide the beneficiary with immediate access to your financial accounts, such as checking and savings accounts. The funds are given to the named beneficiary after you die. With a multiparty account the other person on the account can have immediate access while you are alive and after you die it belongs to the other person and does not pass thru probate. This can be a useful way for loved ones to have quick access to funds to pay for funeral expenses, last bills, and even support themselves.
Similar tools are called transfer on death (TOD) accounts used for stocks, bonds and other securities. Some states do not allow this form of designation, but South Carolina does.
Joint ownership with right of survivorship or a life estate are often used with real property, vehicles, and mobile homes to avoid probate. These types of ownership create various rights and limitations such as needing the other owner’s permission to mortgage the property or sell it. You need to understand the drawbacks before creating any changes to your real property. This change in title is a gift and subject to the five-year-look-back-period for Medicaid eligibility.
Living trusts have grown in popularity because they avoid probate and let you retain control as long as you are competent. These kinds of trusts can hold your real property in multiple states, including time shares. Said trusts can also hold household goods, vehicles, cash, accounts, etc. They can work in conjunction with some of ideas above.
Do not act on any of these ideas if you feel pressured by someone or are confused. You should consult with an elder law attorney well versed in Medicaid law before gifting away property and assets, changing your beneficiaries, or even creating a living trust.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

Not necessarily. Medicare due to its privacy notice has its own form they want completed. A competent person can complete the form called 1-800-MEDICARE AUTHORIZATION to Disclose Personal Health Information. This allows the named agent to talk with Medicare, research, choose coverage, handle claims and file an appeal. Its best not to limit the information your agent might need, but you can. You can also state whether the authority is indefinite or for a specific period of time. There is NO FAX OR EMAIL SUBMISSION. You must mail the form so keep a second original at home. The individual has the right to revoke at any time in writing.
These forms are necessary even for spouses.
If the person is no longer able to give consent, then the attorney-in-fact can sign AND should attach a copy of the health care power of attorney (HCPOA). Note some HCPOAs require a doctor or two doctors’ statements to activate. Some durable powers of attorney for finance contain authority in these situations. A guardian should submit his or her certificate of authority when executing on behalf of the ward.
Once you put the initial form in place you can change, update and add Medicare representatives online through your account.
You still may not be done because each Medicare Advantage, Part D Plan for prescription drugs or supplement coverage seems to have its own form. It may be called authorization to release personal information. To complete this form check with the Plan’s member information or call a customer service representative.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

Living or revocable trusts are effective estate planning tools that can avoid the hassle and cost of probate and ease the transition of assets after the death of a grantor. Clients often think that because their trust contains some, if not all, of their assets, that they only need a living trust to direct distribution on the grantor’s death, but that is not true. Assets in a living trust will generally pass to the named beneficiaries just days or a few weeks after a grantor’s death, but a will is still needed and filed with the probate court. The purpose of a pour-over will is to direct transfer of the grantor’s other assets and possibly those tangible personal items acquired after creation of the trust. A grantor may inherit or purchase an asset that they forget to transfer into their trust and the pour-over will deals with these items.

IRA and other retirement accounts often don’t go into a trust to order to preserve the payable-on-death tax benefits. Many people opt to leave their cars or a small checking account out of their trust. Your attorney will be able to help you decide which assets should go into the trust.

A lessor know reason for having a will involves claims against the estate. Under probate you can limit the time period when creditors can file a claim. In South Carolina that time is usually 8 months. Without probate barring creditors, creditors may come after assets for years. Assets in a living trust are not necessarily safe from creditors just because the estate is probated.

A third reason for having a will is to be able to name a guardian for minor children, an incompetent adult child or spouse with diminished capacity. These are things you cannot do in a revocable trust.

While in most cases it will cost more to create a trust and a pour-over will than just a simple will, trustee fees are typically lower than those charged by personal representatives for assets probated through a will. In South Carolina a Personal Representative can charge 5% of the probate estate, which only includes real property if the land is sold as part of administration of the estate. Trustees fees are typically 1-2% of the total assets, but depend on the size and complexity of the estate. Often family members who serve as trustees do not charge fees, only seek reimbursement for actual costs, including hiring professionals to assist and advise them as needed. Family members or friends serving as personal representatives are not required to charge fees. Trustees and personal representatives who do charge fees often must report the monies paid to the IRS as earned income.

Another benefit of a living trust is that each named beneficiary adds $250,000 to the total FDIC protection available to the account for a maximum of $1,250,000. If you plan to have more than five beneficiaries check with your attorney because there are added requirements such as each beneficiaries must having an equal interest in the trust assets.

Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

Q. I did a living will almost three decades ago. Does it need to be updated?
Yes. A lot has changed since 1990. The law changes over time in response to changes in society. Medical advancements, especially technology has dramatically affected this area of the law.
Let’s look back at some of the important medical advancements in our lifetimes. Each summer from 1916 on there was an outbreak of polio in some part of the country, reaching epidemic proportions in 1949 when 2,700 died and over 42,000 cases were reported in the US and Canada. In 1952 the polio vaccine was developed and today the threat of that disease is nearly gone. In 1960 the first heart pacemaker was implanted. In 1967 the first heart transplant was performed. In 1970 the CAT scan was developed and in 1975 the first MRI. In 1998 the first live donor liver transplant happened.

In 1967 a Chicago human-rights attorney, Luis Kutner, suggested using a living will or A Declaration of a Desire for a Natural Death as they are called in South Carolina. Over the next ten years 40 states adopted some version of this document especially after the New Jersey case of Karen Ann Quinlan hit the media. When she was 21, Quinlan became unconscious after she consumed Valium along with alcohol while on a crash diet and lapsed into a coma followed by a persistent vegetative state. Her parents filed suit after doctors, under threat from prosecutors, refused.to allow them to disconnect Quinlan from her ventilator, which the parents believed constituted extraordinary means of prolonging her life and it was not required in her Catholic faith. The parents’ request was eventually granted. Their daughter lived another nine years on just a feeding tube, which they consented to.

Quinlan’s case continues to raise important questions in moral theology, bioethics, euthanasia, legal guardianship and basic human rights. Her case has affected the practice of medicine and law around the world. A significant outcome of her case was the development of formal ethics committees in hospitals, and a formal recognition of the right of people to refuse extraordinary means of treatment, even in situations where cessation of treatment could end a life.

A SC living will allows doctors (two are required to certify your condition and make the decision) to remove life support so one can die a natural death under one of these two conditions:

You have a medical condition that is incurable, terminal and you are going to die in a very short period of time (days not weeks); or,
You are in a permanent state of unconsciousness.
A health care power of attorney addresses some of the problems with a Declaration for a Desire of a Natural Death, which are that two doctors make the final decision, not family members. Its only suitable for a near death situation and does not cover decision-making for dementia, Alzheimer’s disease, Parkinson, chemo fog for cancer patients, car accident and unconscious etc. It does not address adults with temporary needs for help with decision-making like schizophrenia, manic state of bi-polar, severe depression, or suicide. A living will does not address limitations that affect competency like Downs Syndrome or autism.

First recommended by a Presidential Commission in 1983, the health care power of attorney became popular in SC in the mid-1990s and is now the preferred document of the SC Bar and Hospice. These documents vary widely by state, but all states have them with the common factor being that a HCPOA allows you to name an agent and alternate agent(s) to act on your behalf any time you can’t make your own medical decisions. A HCPOA can be customized and often contains language for a Declaration of a Desire for a Natural Death so two documents are not needed. The HCPOA requires two disinterested witnesses and a notary under the most recent revisions to the SC statute. Only about 1/3 of Americans have HCPOAs and many of those that do have documents have done little to customize them.

Another issue that occurs is when EMTs are called to deal with a medical crisis. By law EMTs must have a physician order in hand to limit medical care. Therefore in 1990 the Do Not Resuscitate Order (DNR Order) was introduced. A DNR Order can only be signed by a doctor, not a lawyer. Doctors often require you have a condition that is terminal or an otherwise severe heart or medical condition. It states resuscitation is not required if the heart stops. A HCPOA can authorize an agent to sign a DNR with a doctor on your behalf.

The Physician Orders for Life-Sustaining Treatment (POLST) form and program were originally developed in Oregon in 1991 to complement traditional advance directives, to help ensure that patient wishes to receive or to limit specific medical treatments are respected near the end of life. Programs based on the POLST Paradigm are now implemented throughout most states. The overarching goals are the same. orders are intended for persons with advanced chronic illness who wish to turn some aspects of their advance directives or advance care plans into action at the present time to ensure that their medical treatment preferences are respected. South Carolina allows use of POLST forms, although they are still not widely available in our part of the state. GA and NC have met the requirements for nationally endorsed POLST programs.

Although an advance directive is often not enough because it lacks customization, POLST form orders were always meant to support, not supplant, the advance directive. Part of the reason for the misunderstanding concerning how POLST form orders complement the advance directive is that general practice attorneys often lack familiarity with what happens in the clinical setting throughout the trajectory of a client’s illness.

You can also preselect and name a case manager or patient advocate in your health care power of attorney or at least indicate you want one, if you don’t have suitable family or a friend that could oversee your care in a crisis or prolonged illness.

April 16th is National Health Care Decisions Day. This month is great time to meet with an elder law attorney to discuss updating your living will.

DISCLAIMER The information given in this article is of a general nature and does not create an attorney-client relationship. You should always consult with an attorney regarding the specific facts of your situation. April 2020

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

1. Q. I did a living will almost three decades ago. Does it need to be updated?
2. Yes. A lot has changed since 1990.  The law changes over time in response to changes in society.  Medical advancements, especially technology has dramatically affected this area of the law.

Let’s look back at some of the important medical advancements in our lifetimes.   Each summer from 1916 on there was an outbreak of polio in some part of the country, reaching epidemic proportions in 1949 when 2,700 died and over 42,000 cases were reported in the US and Canada.  In 1952 the polio vaccine was developed and today the threat of that disease is nearly gone.  In 1960 the first heart pacemaker was implanted.  In 1967 the first heart transplant was performed.  In 1970 the CAT scan was developed and in 1975 the first MRI.  In 1998 the first live donor liver transplant happened.

In 1967 a Chicago human-rights attorney, Luis Kutner, suggested using a living will or A Declaration of a Desire for a Natural Death as they are called in South Carolina. Over the next ten years 40 states adopted some version of this document especially after the New Jersey case of Karen Ann Quinlan hit the media. When she was 21, Quinlan became unconscious after she consumed Valium along with alcohol while on a crash diet and lapsed into a coma followed by a persistent vegetative state.  Her parents filed suit after doctors, under threat from prosecutors, refused.to allow them to disconnect Quinlan from her ventilator, which the parents believed constituted extraordinary means of prolonging her life and it was not required in her Catholic faith.  The parents’ request was eventually granted.  Their daughter lived another nine years on just a feeding tube, which they consented to.

Quinlan’s case continues to raise important questions in moral theology, bioethics, euthanasia, legal guardianship and basic human rights.  Her case has affected the practice of medicine and law around the world. A significant outcome of her case was the development of formal ethics committees in hospitals, and a formal recognition of the right of people to refuse extraordinary means of treatment, even in situations where cessation of treatment could end a life.

A SC living will allows doctors (two are required to certify your condition and make the decision) to remove life support so one can die a natural death under one of these two conditions:

1. You have a medical condition that is incurable, terminal and you are going to die in a very short period of time (days not weeks); or,
2. You are in a permanent state of unconsciousness.

A health care power of attorney addresses some of the problems with a Declaration for a Desire of a Natural Death, which are that two doctors make the final decision, not family members.  Its only suitable for a near death situation and does not cover decision-making for dementia, Alzheimer’s disease, Parkinson, chemo fog for cancer patients, car accident and unconscious etc.  It does not address adults with temporary needs for help with decision-making like schizophrenia, manic state of bi-polar, severe depression, or suicide.  A living will does not address limitations that affect competency like Downs Syndrome or autism.

First recommended by a Presidential Commission in 1983, the health care power of attorney became popular in SC in the mid-1990s and is now the preferred document of the SC Bar and Hospice. These documents vary widely by state, but all states have them with the common factor being that a HCPOA allows you to name an agent and alternate agent(s) to act on your behalf any time you can’t make your own medical decisions.  A HCPOA can be customized and often contains language for a Declaration of a Desire for a Natural Death so two documents are not needed.  The HCPOA requires two disinterested witnesses and a notary under the most recent revisions to the SC statute.  Only about 1/3 of Americans have HCPOAs and many of those that do have documents have done little to customize them.

Another issue that occurs is when EMTs are called to deal with a medical crisis.  By law EMTs must have a physician order in hand to limit medical care. Therefore in 1990 the Do Not Resuscitate Order (DNR Order) was introduced.  A DNR Order can only be signed by a doctor, not a lawyer.  Doctors often require you have a condition that is terminal or an otherwise severe heart or medical condition.  It states resuscitation is not required if the heart stops. A HCPOA can authorize an agent to sign a DNR with a doctor on your behalf.

The Physician Orders for Life-Sustaining Treatment (POLST) form and program were originally developed in Oregon in 1991 to complement traditional advance directives, to help ensure that patient wishes to receive or to limit specific medical treatments are respected near the end of life. Programs based on the POLST Paradigm are now implemented throughout most states. The overarching goals are the same. orders are intended for persons with advanced chronic illness who wish to turn some aspects of their advance directives or advance care plans into action at the present time to ensure that their medical treatment preferences are respected. South Carolina allows use of POLST forms, although they are still not widely available in our part of the state.  GA and NC have met the requirements for nationally endorsed POLST programs.

Although an advance directive is often not enough because it lacks customization, POLST form orders were always meant to support, not supplant, the advance directive. Part of the reason for the misunderstanding concerning how POLST form orders complement the advance directive is that general practice attorneys often lack familiarity with what happens in the clinical setting throughout the trajectory of a client’s illness.

You can also preselect and name a case manager or patient advocate in your health care power of attorney or at least indicate you want one, if you don’t have suitable family or a friend that could oversee your care in a crisis or prolonged illness.

April 16^th is National Health Care Decisions Day.  This month is great time to meet with an elder law attorney to discuss updating your living will.

DISCLAIMER    The information given in this article is of a general nature and does not create an attorney-client relationship.  You should always consult with an attorney regarding the specific facts of your situation.  April 2020

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

Yes, the facts and details of your situation need to be discussed with an attorney and/or the probate court, but likely you can complete an “Appointment of Agent for Service of Process”, SCRCP Form #121ES naming a SC resident who agrees to receive service of all lawful process in any action at law or equity related to the estate.  Attorneys often serve in this capacity, but one is not required.

However, this is not the rule for all states.  A few states, including Kentucky, allow only relatives to serve as an out-of-state executor and Ohio allows it only if the out-of-state executor comes from a state that permits non-residents to serve.  Some states allow out of state executors for wills, but not for administrators of intestate (i.e. the decedent died without a will) estate.

There is no problem with a non-South Carolina resident serving as a trustee.

Check with an attorney knowledgeable on wills, trusts and probate administration.

Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column. 12/2019

WRITTEN BY LINDA KNAPP

You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.

Probably your health care power of attorney (hereinafter HCPOA) will be valid, but it may be difficult to reach your agent. I suggest you name a traveling companion as a co-agent or alternate agent to act only when your daughter can’t be reached, but having all the same authority and discretion to make decisions on your behalf. Your health care power of attorney should clearly spell out your desires under specific circumstances and allow the agent to have discretion. Many documents I review only address end of life situations. Your HCPOA should cover use of various treatments such as antibiotics, blood transfusions, dialysis and other restorative treatments. Many foreign countries have excellent medical facilities and doctors. Other places you might travel may have very limited medical care available. If you have a known medical condition you might want to wear a medic alert bracelet. Be sure your traveling agent has a copy of your HCPOA and reads it so he or she knows your desires before a crisis strikes. Your travel agent might be able to give you specifics for the countries you plan to visit with some consideration for your modes of transport.

Living trusts are defensive in nature dealing with wishes regarding removing life support that merely prolongs the dying process. Often they create a potential conflict unknown to the signer that requires the terms of a living will to override his or her HCPOA just when the situation happens and gives decision making authority to two physicians, not the person named as your agent. Also some people of faith might object to a hastening of death through pain medication. But many are in fact okay with pain medication that might hasten death as an acceptable side effect of reducing unbearable pain when death is inevitable, even if not immediate. I like HCPOAs because they can and should be customized to the signer’s values and preferences, and include the substantive language for a declaration of a natural death so you only need one document. The HCPOA also involves your spokesperson at all stages of decision-making.

The agent who will make medical decisions when you are incompetent or unable to speak for yourself can be anyone, including significant others and non-family members you trust to implement your wishes.

Happy travels!

Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column. 7/2019

WRITTEN BY LINDA KNAPP
You may reprint this article with my permission by showing the Firm’s name and attaching my contact information. If you wish to cite the article you must give full credit to the author, Attorney Linda Farron Knapp. Nothing in this article creates an attorney-client relationship. When the article was written it was good law, that may not be situation at the time of reprint. We advise you seek competent legal advise based on your own factual situation before relying or acting on any legal material you read online.