By Meg Abney, Jesson & Rains PLLC Intern

If you are a professional, like a therapist, CPA, or attorney, you know exactly how your business should be run. But what happens when incapacity or death intervenes? Who will pick up where you left off?

A “Professional Will” can help provide guidance and critical instruction for what comes next.

While not a true legal document, like a Last Will and Testament, a “Professional Will” is essentially a roadmap explaining how to terminate or continue operations at your business or practice. Unlike your Last Will and Testament, which concerns distribution of assets, a Professional Will names a trusted individual or emergency response team to handle business affairs like:

• Notifying clients
• Collecting pending billing 
• Making referrals for continued care or service
• Appropriately handling records
• Making decisions for the business 

Depending on your profession, you may be obligated to provide some form of advance planning for your business or practice. In North Carolina, psychologists, LPCs, NCCs, and LMFTs are required to make advance plans for the transfer of clients and to protect the confidentiality of records and data. A Professional Will satisfies this ethical responsibility.

Even if not specifically required in your industry, all professional business owners can benefit from a Professional Will. Professionals often have an obligation to protect the interests of their clients, and a Professional Will can help avoid a breach of duty. Individuals whose clients rely on continued care or service should strongly consider a Professional Will to help prevent disruptions.

Ideally, you should create your Professional Will alongside your personal will since your Last Will and Testament supersedes all other testamentary documents. Therefore, it is best to work with an experienced attorney to ensure that there are no discrepancies between these two documents. 

Please call Jesson & Rains PLLC if you have questions about whether your business could benefit from a Professional Will or want to learn more about protecting your business’s future.

By Associate Attorney Danielle Nodar

Do you have a child getting ready to start college or already away at school? While going through the college essentials checklist, make sure to consider what your child may need in the event of an emergency, including legal powers of attorney allowing you to make healthcare, financial, or legal decisions for them in event of an emergency. Once a child turns eighteen, the child is considered an adult in the eyes of the law. This means that parents are no longer given access to their child’s financial, health, and educational records without the consent of their adult child. For this reason, it is essential for parents and young adults to discuss the importance of healthcare powers of attorney and durable powers of attorney before a child heads off to college.

A healthcare power of attorney allows a person to name an agent to make healthcare decisions on their behalf in the event that the person is unable to communicate their wishes to their medical providers. This document contains authorizations allowing the health care agent to access private health information while they are acting as agent. Without these authorizations, medical providers are legally prohibited from releasing such information. No parent should be put in the position of being in a different state from their child and being told that their child has been hospitalized, but the hospital is unauthorized to release any other information about the child’s condition or care. A properly executed healthcare power of attorney can avoid this situation and allow parents to easily step in and access medical information during an emergency. This document also allows your child to include instructions relating to their healthcare, including
wishes related to organ donation or wishes relating to religious or cultural practices. The student can keep these documents on file with their university or medical provider so that it can be easily accessed if needed.

A durable power of attorney allows a person to name an agent to make legal, financial, and business decisions on their behalf if the person becomes incapacitated (unable to handle their affairs). The power of attorney can be used to allow parents to help pay a child’s bills, access the young adult’s personal bank account or education records, or manage the child’s finances or legal decisions in the event of an emergency. Without a durable power of attorney, you would not be able to manage your child’s financial and legal affairs during an emergency without petitioning a court to be appointed the child’s legal guardian.

If a child is going to college outside of North Carolina and does not have these legal documents in place, the laws of that state will control who may be able to make decisions on behalf of the child if they are incapacitated. For example, in North Carolina, if an adult does not have a health care power of attorney and is unmarried, the majority of the child’s parents can make healthcare decisions if the child is unable to. This means that parents will be joint decision-makers and must agree on all actions taken by doctors. In North Carolina and most states, there is no default decisionmaker for legal and financial decisions, so a parent must seek to be appointed the child’s legal guardian by the courts. This process is more costly, stressful, and time-consuming than having documents in place before the need for them arises. If your child resides in North Carolina but is going to school out of state, these documents will allow you to act on behalf of
your child in an emergency regardless of the other’s state’s rules on default decisionmakers as North Carolina documents will be valid in another state.

During this exciting time where a young adult is gaining more independence, they may be reluctant to give their parents decision-making power over health or finances. However, they can be assured that these documents only go into effect after doctors certify that they cannot make their own decisions. During normal circumstances, the young adult still maintains their privacy and autonomy over their healthcare and financial decisions; these documents only assist in the event of an emergency. Finally, now that your child has turned eighteen and is getting ready to enter adulthood, it may be a good time for you to review your estate plan to make sure that it still meets all of your needs and goals. Please call Jesson & Rains if you have questions about these documents or want to learn more about protecting you and your child’s interests through estate planning.

​By Attorney Kelly Jesson

        With estate planning, like many other things, cheaper is normally not better. With online, fill-in-the blank options, the question assumes you understand it and know the answer. If you do not, you could be filling it in incorrectly. One top DIY legal document company used to have a note on its website that said “80% of people do not complete online forms correctly” (trying to get people to upgrade to a “live attorney” package). Specific words have meanings, and if you do not understand the law in your state, there can be some unintended consequences when doing it yourself. For example, you could unintentionally disinherit a child. You could accidentally leave money to someone you didn’t know was included in a class of people.

        Most do-it-yourself forms leave out provisions that makes things easier and less expensive to manage, like extra powers in the Durable Power of Attorney that can help your loved ones if you are incapacitated or including the power to sell real estate in a will (saving your estate thousands of dollars). You may also accidentally leave assets in the wrong hands, such as having minors inheriting property, resulting in costly court proceedings to fix. Many companies rely on documents and laws that are not always up to date or they may not be state-specific (although advertised to be), and the remedies may be expensive and require an attorney or court proceeding to fix.

        Additionally, estate planning attorneys are not just document drafters. There’s a reason why it is called “estate planning” and not “will drafting.” We counsel our clients as to their choice of guardian and executors, leaving money to kids, helping ensure that ex-spouses don’t inherit, etc. We help our clients plan for death or incapacity utilizing real estate deeds, beneficiary designations on retirement and life insurance policies, and business agreements. Did you know that your will could leave everything to one person, but if you have someone else named as a beneficiary on a policy, that trumps your will? Some surviving spouses are sad to learn that they do not inherit real estate outright due to the owners on the title. We update titles for our clients if they want to, in advance. If you wait until someone has passed, it is too late.

        If something goes wrong with an online legal document, you are SOL (so out of luck). Just look at LegalZoom’s terms of service: “. . . LegalZoom cannot guarantee that all of the information on the Site or Applications is completely current. The law is different from jurisdiction to jurisdiction, and may be subject to interpretation by different courts. The law is a personal matter, and no general information or legal tool like the kind LegalZoom provides can fit every circumstance. Furthermore, the legal information contained on the Site and Applications is not legal advice and is not guaranteed to be correct, complete or up-to-date. Therefore, if you need legal advice for your specific problem, or if your specific problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area.” If an attorney does something wrong that results in damages, you or your family can sue them for malpractice.

        Using online forms gives the drafter / purchaser a false sense of security. While they may have saved a few thousand dollars, the true price may be far greater and paid by undeserving family members. Investing in estate planning is investing in your family’s future, and who can put a price on that? If you’re ready to get your estate plan in order, give Jesson & Rains a call.

By Attorney Kelly Jesson

I am not an insurance salesperson. However, I often give my estate planning clients one common piece of advice – get life insurance if you can. This is typically easier for my younger clients, but for my older clients, the importance of having life insurance is greater.

Here’s the reason for my advice: First, life insurance passes outside of the probate estate, beyond the reach of any estate creditors (for a refresher on what is included in your “probate estate,” see this blog post). This means that your loved one will receive a check without an estate being opened or finalized and it will belong to them outright. Often, my probate clients who have lost loved ones have already received their life insurance check before they ever even come into my office to see me to probate a will or settle an estate.

This can result in a tremendous burden being lifted. While your loved one is still obviously grieving the loss, your loved one does not have to be concerned with paying funeral expenses, medical bills, or even a mortgage payment, for example. This is especially true if you do not have joint bank accounts. If an estate has to be opened and settled for your loved one to receive their inheritance, they will not get that money for at least six months (and sometimes even one year). Also, spouses are required by law to pay the funeral expenses and medical expenses of the deceased spouse. These bills can sometimes wipe out savings. Additionally, if you pass away with debt, some savings accounts and other assets are included in your probate estate. Your loved one may not inherit anything if your estate assets are needed to pay your final debts.

Many people opt to forego life insurance in exchange for passing on retirement accounts like 401Ks and IRAs. While this is certainly an option, your loved one may not have near instant access to pay your final expenses. Depending on whether your surviving spouse is your heir or your children (or someone else), there may be restrictions on the use of the funds. Importantly, life insurance is passed on tax free while your beneficiary will be responsible for paying taxes on withdraws taken from retirement accounts.

Furthermore, if you are a business owner, and especially if you are in business with a spouse, life insurance can ensure the survival of your business.

Finally, I have started recommending life insurance policies that contain long-term care riders. If there is ever a need for you to enter a long-term care facility, you can use those funds for that. I have a couple of clients who are in moderate-to-nice assisted living facilities who have told me that they would not be able to live there had they not purchased long-term care insurance years ago. People are living longer, and medical care is getting more expensive.

While some people use these products to ensure they pass along an inheritance to their loved ones, these products also alleviate stress and potential burden on your family members (whether that means at death or in the event you can no longer care for yourself). Do not hesitate to contact me if you would like to be referred to an insurance professional to find out more information. I am not being paid to promote life insurance, but I feel strongly about these products, and I believe that it is an important part of the estate planning process.