Washington State has a large number of service members.  In fact, Katy and I have been volunteering with the Military Pro Bono Project with the American Bar Association in order to serve the men and women of Washington State that have been deployed and are in need of legal services. Serving one’s country as a service member is a tremendous responsibility and we want to ensure that every man and woman is fully prepared before deployment.  We hope the below article  provided by Nolo will aid service members in ordering their affairs before deployment.

by Melanie Cullen

Get your legal records, finances, and benefits in ship-out shape.

Deployment orders raise many personal and practical concerns. One of the most common is a desire to get things in order — and the need to do so quickly. You want to protect and care for your home and loved ones, even while away.

To help you achieve these goals, here is a checklist of important things to do before you leave.

Prepare Legal Documents

Powers of attorney. It’s a good idea to name someone to handle your bills while you’re deployed or, if you are the sole parent for minor children, name someone as a temporary guardian. Power of attorney documents can be written to grant specific powers to someone you trust (your “agent”). These powers may include paying household bills, accessing your safe deposit box, filing tax returns, renewing car registration, and providing care for minor children (even enrolling children in school and authorizing emergency medical care).

In a power of attorney document, you can specify how long the agent’s power will last — for example, one year, renewed as necessary with a field JAG (Judge Advocate General).

Will. If you own significant property, are married, or have minor children, you should prepare a will. In your will, you can name beneficiaries for your property and, if applicable, name a guardian for your children. Preparing a will doesn’t have to be complicated; for information on simple wills, see The Simple Will: No Frills, No Fuss, No Anxiety.

Review Insurance Policies

Auto insurance. Contact your car insurance agent to discuss the best coverage for your vehicle while you’re deployed. If your car will be garaged, your agent may be able to provide a rate reduction during that period.

Life insurance. Review your life insurance to make sure that the amount is adequate and that the beneficiaries still reflect your wishes. To make changes to your Servicemembers Group Life Insurance, complete the SGLI Election Form (Form SGLV 8286) available through the Department of Veterans Affairs at http://insurance.va.gov/sgliSite/forms/forms.htm.

Family medical insurance. If you have dependents, ensure that their medical coverage is in place and will continue throughout your deployment. Visit TRICARE on the web at www.tricare.osd.mil to verify coverage.

At the same time, make sure that your spouse and children have current DEERS (Defense Enrollment Eligibility Reporting System) cards, so that they can receive medical care and make use of other benefits, such as access to the base and exchanges. To confirm DEERS enrollment, call the Defense Manpower Data Center Support Office (DSO), 800-538-9552, or update your information online at www.tricare.osd.mil/deers.

Organize Your Finances

Lower interest rates. Many credit card and mortgage companies offer reduced interest rates during deployment. Be sure to call your lender to ask whether this benefit is available to you.

Routine expenses. The easiest, most effective way to ensure that your everyday expenses are covered is to name someone you trust as your agent under a power of attorney for finances, discussed above. Even if you’re married, your spouse can more easily manage your accounts and affairs with a power of attorney in hand.

Make important records available to the person who will manage your finances. Include payment information for:

• mortgage or rent
• utilities and telephone
• insurance premiums
• credit cards
• loans
• school or childcare bills, and
• other regular expenses.

Also provide information about the financial accounts your agent should use to pay bills. Describe any access steps (including passwords) or payment arrangements (such as automatic bill-pay) that your agent needs to know.

Direct deposit. You may want to set up direct deposit so that your pay is automatically credited to your checking or savings accounts. Contact your bank or credit union to make the necessary arrangements.

Tax returns. If you will be deployed when your income tax return is due, grant your agent (under a power of attorney) the authority to file your tax return for you. Also, be sure to tell your agent the location of your tax records, both those for the current year, as well as last year’s completed return.

You may want to file for an extension for filing your federal return. However, if you are serving in a combat zone on the filing deadline, you are automatically granted a filing extension of at least 180 days.

While most states honor an automatic federal extension, some may require a separate extension request. Contact your JAG office for assistance.

Retirement accounts. If you have retirement accounts (such as an IRA, 401(k), or another employer-sponsored retirement or pension plan), review your beneficiary designations to ensure they reflect your wishes. To make changes, contact the administrator of the plan.

Everyone can agree that the only constant in life is change.  Just as there are all different types of change ranging from major to minor in life, so too are there types of change in estate planning.  We’ve already talked about what to do if you want to entirely revoke a will but what if you only want to make some minor changes to a Will?

There are two basic options.  You can either revoke the current will and write a new one which follows the requirements for a valid will, or you can write a codicil to the Will.  “Codicil” is a will that modifies or partially revokes an existing earlier will.  RCW 11.02.005 (9)

The definition in Washington from RCW 11.02.005(9) says that a codicil is a will, therefore the document changing your will must meet all the requirements for a valid will which are generally set out in RCW 11.02.  The other important requirement is that the codicil must accurately identify the document it proposes to modify.  The codicil does not have to be attached to the will but it does have to identify the will to the extent that it shows that the testator intended to make the modifications to the previous will.

[Example language: "I, _________________, do hereby make this codicil to my last will and testament which was signed before witnesses and dated on ________, and confirm that no other codicils to my last will and testament have been made previously.  I hereby amend Paragraph ___ with a new Paragraph ___ that shall read as follows:  ..."]

Why would someone execute a codicil when you have to go through all the formalities of a will anyway?  That is the question that each person has to figure out for themselves.  However, if you are only changing a few things, like changing “$100.00 to Jenny Perez” to “$150.00 to Jenny Perez,” then re-writing a whole will doesn’t make sense.  That said, if you plan on re-structuring the entire estate plan then writing a new will is probably a better choice.

Help Your Executor: Secured Places and Passwords

by Melanie Cullen

Does your executor know how to find the things you’ve hidden?

When it’s time to wind up your estate, your executor  will need to find information and items that may be hidden away or protected by passwords: everything from your electronic banking records to your email accounts, from your safe deposit box to a home alarm.

You can provide essential directions for your executor for each locked place, login, or security measure. Here are some tips to get you started.

Services and Products

Make a list of each service and product for which you have a user name and password or personal identification number (PIN). Common items include:

• computers
• Internet service providers or Web hosting services
• email accounts
• online services
• software applications
• cell phones and pagers, and
• personal digital assistants (PDAs).

For each item on your list, note your account name or number and any password or PIN that you use.

Home and Vehicle Security

List all the ways you protect your home, vehicles, or other property. Be sure to include the following:

• vehicle and home alarm systems
• home safes
• mailboxes or gates, and
• locked boxes, drawers, or cabinets.

For each item, note passwords, combinations, or the locations of keys.

Safe Deposit Boxes

If you have a safe deposit box, you’ll want to be certain that your executor knows where it is. But you should also think carefully about what you put in your box. Your executor may not have access to the box immediately after your death, so it’s usually not the best place to store information your executor will need right away, such as your wishes for burial or cremation, or your will.

When you’re comfortable with your safe deposit box arrangements, make a list of each box you currently rent. You’ll want to include the following:

• contact information for the bank or other financial institution
• a list of the people who have authorized access to the box
• the box number
• the location of the box keys, and
• a brief description of what the box contains.

Other Assets, Other Locations

Think about any other property you may have safely hidden away. What little-known arrangements should you map out for your executor? Be sure to make a list of:

• financial assets that are not stored at a financial institution
• valuable items that your survivors may not find without direction, and
• other information known only to you — such as special recipes or a map to buried treasure.

Describe each item, its location, and the location of any documents related to the item — such as appraisal records or a storage agreement.

Keeping Your Information Safe

You can keep this sensitive information away from prying eyes by making sure that only your executor and others you choose will have access to it. Store your list of protected products, services, and places in a secure location, such as a waterproof, fireproof home safe. Then be certain to tell your executor — and any other loved ones who may need the information to care for you or your property — how to get to it.

Erase sensitive information. If you make your list of passwords and other information on a computer, remember to delete the files from your hard drive when you’re finished. You can store the list on a disk or CD that you keep with the list itself.

Remember to update your information periodically, listing new protected products, services, or places, and noting any changes to existing arrangements.

For other tips on making your estate plan easier to carry out, see Practical Estate Planning: Organize Your Documents.

© 2009 Nolo

I was having a conversation the other day with my hairdresser that made me realize that it is really important for people to know and understand the answer to the above question.  We were talking about the latest attempt to deny civil rights to same sex couples (this takes the form of Referendum 71 in Washington) and it came up that he had not given Power of Attorney for Health Care to his life partner.  He said that if he were really sick he would rather have his partner there with him and making decisions than his family.  However he had not created that document because he was under the impression that his family would just deny his partner the right to be there at his bedside in the event of his incapacity.

There are a lot of issues floating around here, i.e. the elephant in the room: same sex marriage.  But what I am going to focus on is who actually has the right to dispute a Power of Attorney for health care or file a court petition regarding the Power of Attorney and how they can win such a dispute.

The first thing to remember is that the reason people create these documents is so that their wishes are fulfilled in the event that they cannot express them because of incapacity.  Incapacity can mean a number of things, that a person is in a coma, that they are delirious, that they are so sick or in so much pain that they cannot make clear decisions, that they are unconscious.

If someone has gone to the trouble of expressing their wishes in a legal document then Courts are inclined to listen to them, as long as procedure has been followed.  Procedure is what Courts use to ensure that a person’s wishes are clear and their intent to express them is clear.  Procedure is a stickler but ultimately, if one follows the rules they will have a very tight, very clear, very difficult to dispute expression of their wishes.

So, who can file a Court Petition to dispute a Power of Attorney in Washington State?  Under RCW 11.94.100 the people who are allowed to file a petition are any of the following:

(a) The attorney-in-fact;

(b) The principal (that is the person who has created the power of attorney);

(c) The spouse or domestic partner of the principal (See RCW 11.94.080 for what happens if there is a divorce/dissolution);

(d) The guardian of the estate or person of the principal; or

(e) Any other interested person, as long as the person demonstrates to the court’s satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court’s intervention is necessary, and that the principal is incapacitated at the time of filing the petition or otherwise unable to protect his or her own interests.

However, you may specify in the power of attorney specific people who do not have the authority to bring a petition under RCW 11.94.090 with respect to the power of attorney. This provision is enforceable:

(a) If the person so named is not at the time of filing the petition the guardian of the principal;

(b) If at the time of signing the power of attorney the principal was represented by an attorney who advised the principal regarding the power of attorney and who signed a certificate at the time of execution of the power of attorney, stating that the attorney has advised the principal concerning his or her rights, the applicable law, and the effect and consequences of executing the power of attorney; or

(c) If (a) and (b) do not apply, unless the person so named can establish that the principal was unduly influenced by another or under mistaken beliefs when excluding the person from the petition process, or unless the person named is a government agency charged with protection of vulnerable adults.

So, the lesson in all of this is that if you know that your loved ones may not agree with your true wishes about how you would like to proceed if you are incapacitated then its important to prepare your Power of Attorney taking those factors into consideration.

A Will is the legal instrument a person (testator) creates in order to make decisions on how his or her estate (which may include both personal and real property) will be managed and distributed after his or her death.  Even if you believe that you don’t possess enough assets to make a Will, a Will serves many important functions including: letting you select your heirs (as opposed to the state choosing them for you); deciding which person in your life would be best to order your affairs ie. serve as your executor upon your death; and most importantly, creating a Will is especially important if you have children as it is in your Will that you designate guardians for your children and provide any guidance to your guardians for taking care of children.

A Will does not necessarily need to be drafted by a lawyer and may be perfectly valid and probated if all the below requirements are present. However, it is advisable to seek legal counsel to ensure you have met all the legal requirements and have created the most comprehensive estate plan possible.

For a Will to be valid:

1. A Will must be in writing (does not have to be typed) RCW 11.12.020

2. A Will must be signed by the testator.  To ensure the entire Will is probated, it is advisable for the testator to initial the bottom of each page of the Will RCW 11.12.020. If the testator cannot sign the Will, a person may sign on the Testators behalf, but only at the discretion of the testator and in the testators presence. (RCW 11.12.030)

3. A Will must be attested (signed) by two or more competent witnesses who actually saw the Testator sign the Will.  To ensure there is not any controversy upon probate, it is best to have two witnesses sign the Will that are NOT beneficiaries under the Will. RCW 11.12.020

4. Witnesses must sign the Will in the presence of the testator. RCW 11.12.020 To ensure no problems arise during probate the testator should sit at the same table, stand next to or at least be in the same room when the witnesses sign the will.

5. The Testator must have the present intent to make a Will. This simply means that the testator is intending to make their Will at the time and not, for example, intending to simply draft a pretend Will to use as an example for some other purpose.

6. Testator must be at least 18 years of age. RCW 11.12.010 Wills written by individuals under the age of 18 are not valid.

7. The testator must be of sound mind and competent to make a Will. RCW 11.12.010 A lot of litigation about Wills involve issues of capacity.  However being elderly, for example, does not make you incompetent, if one suffers from dementia however, capacity issues may be raised.

If you do not have a Will and are interested in having your Will drafted or have any questions about creating your Will or estate plan contact one of our attorneys at www.olealawyers.com

A testator may fully revoke or partially revoke their Will anytime before death. Revoking a Will is not as simple as stating that your Will no longer represents your wishes or telling your friend Mary that you no longer wish to leave her your house as per your Will. Instead, certain actions must be taken in order for your Will to be fully or partially revoked. Below is an overview of some of the ways your Will may be revoked or partially revoked.

Definitions:

1. Beneficiary: Person or organization benefiting under a will
2. Codicil: A properly executed change or addition to an existing will
3. Probate: The granting of the right to administer a will
4. Revoke: To annul by recalling or taking back
5. Revive: To restore the validity or effectiveness of
6. Testator: One who has made a testament or will

1. Make a new Will! (RCW 11.12.040 1 (a))
Individuals are only allowed to have one Will. Upon death only one Will goes to probate. If you have two Wills, in most circumstances, the second Will or newest Will will go to probate. Therefore if you want to revoke your existing Will one of the easiest ways to do so is to create a new one! To ensure there is no confusion about your wishes however, it’s always advisable to tear up your old will so that the only Will that exists is the new one!

2. Destroy it! (RCW 11.12.040 1(b))
Burning, tearing, canceling, obliterating or destroying your will with the intent to destroy it will successfully revoke the Will. In most cases, individuals tear or destroy their Will after they have prepared a new one that better expresses their wishes. If you choose however not to make a new Will, you may still destroy your current Will by any of the above methods. In this case, you will be left without a Will to go to probate.
*Note: Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator’s intent. (RCW 11.12.040 2)

3. Divorce, Annulment or Break-up? (RCW 11.12.051)
If after making your Will you get divorced or your domestic partnership comes to an end, all the provisions you made in your Will for your spouse or partner are revoked, unless of course, your Will states otherwise ie. “even if we divorce I would like Sally to have the house” Because of this provision it would be prudent to update your Will upon divorce or separation, especially if it is your wish to provide for your ex spouse or  ex partner in your Will.

4. One or more Children NOT named in Will. (RCW 11.12.091)
If you fail to name or provide for one of your children, usually this happens when you make your Will and then subsequently adopt or have another child, the ‘omitted’ child will take under the Will even though they were not named. However, if you intentionally omitted a child (disinherited them) and explicitly stated this in your Will or by other clear and convincing evidence, then the child will NOT become a beneficiary.

5. Remarried? (RCW 11.12.095)
If your Will fails to name or provide for a spouse or domestic partner whom you coupled with after you wrote your Will, and this individual survives you, the spouse or partner will receive a portion of your estate unless of course you explicitly state that they are not a beneficiary in your Will or by other clear and convincing evidence that they are not to take under your Will.

This list is not exhaustive and does not constitute legal advice. It is purely for your information. If you want to learn more about revoking a Will, or feel as though one of these situations may apply to you and you are concerned whether your Will fully expresses your true wishes, contact an attorney to discuss your specific situation.

1. Birth or adoption of a child or grandchild: Every time you have another child, or a new grandchild is introduced into your family, you should revisit your will to ensure you have provided for the new child.

2. Death or change in relationship with your Personal Representative/Executor or Trustee: You spent a lot of time carefully considering which individual would best be suited to managing a trust or handling your estate upon your death. Should one of these individuals no longer be able to perform their duties, you should carefully consider who you would like to replace them and update your will to reflect those wishes.

3. Divorce: It is very important that upon a divorce both partners update their will to reflect their new life circumstances and wishes.

4. Re-Marriage: Should you remarry, you should create a new will to ensure your new family is provided for.

5. Death of a Beneficiary: Whenever one of your named beneficiaries dies, you should reflect upon how you would like to distribute their share.

6. Increases or decreases in the value of your estate: Anytime you encounter a significant increase or decrease in your estate it is essential you contact your attorney to ensure your will reflects your new circumstances.

7. Move out of State or the Country: Every state and country has different laws and in order to ensure your will is easily probated and still valid, you should contact an attorney in your new location.

8. Change in tax laws: A change in tax laws may greatly impact the distribution of your estate. Anytime new tax laws are introduced, individuals should contact their attorney to ensure their will is drafted with these new laws in mind. To find out more about WA State Taxes visit: http://dor.wa.gov/content/FindALawOrRule/

9. Special Needs: Your will is a vehicle for you to provide for those who may need special care. If someone in your family becomes ill or requires extra care, such arrangements can be made in your will and your will should be updated accordingly.

10. Yearly Check-In: You should look over your will every year to ensure it’s a reflection of your current wishes and circumstances. Make it habit to check your will around the same time each year – perhaps when you do your taxes, as any new assets or significant changes with respect to your estate will become apparent!

1. Appoint Guardians: Aside from distributing your assts, Wills are extremely important if you have children under 18 of age. Writing your Will provides you the opportunity to assign guardians to care for your children in the event of your death. Choosing the right individuals to take care of your children and possibly raise your children may be one of the most important decisions you make.

2. Peace of Mind: A Will provides your loved ones peace of mind as your affairs will be in order and thereby prevent your family and friends from having to go through and try to locate your lifetime of paperwork, accounts etc. to put things straight. Your family and friends will be able to grieve and celebrate your life as opposed to trying to locate all your assets.

3. Distribution of Assets: Writing your Will allows you to put in writing what parts of your estate you would like certain family and friends to have. Writing a will also ensures that all your assets are distributed to the ones you love and not the state. Even with very small estates, giving your property to specific loved ones can be very gratifying.

4. Final burial wishes: Funeral arranging for a loved one can be terribly difficult and painful and a Will provides you with the opportunity to make your wishes known and even pre-arrange some aspects of your end of life ceremony. Expressing your final wishes regarding your burial is especially important if you wish to be buried in a unique manner.

5. Choosing a Personal Representative: In order to probate a Will, you must choose a personal representative to ensure all your debts are paid and that all your assets are distributed according to your Will. Choosing someone you trust is very important. Moreover, selecting a representative early allows you to prevent future conflict and will allow you to discuss your affairs with your chosen representative during your lifetime.

6. Too little too late: Sadly, death or incapacity due to illness may strike at any time. Writing a Will now however while competent and healthy will ensure your final wishes are recorded. With respect to writing a Will – there is no time like the present!

7. Keep the Peace: A well drafted Will prevents family members from arguing over what you might have wanted, or what should be done with your assets or who should get what. The last thing you want is a family battle upon your death.

8. Protect your Family: A Will is crucial to ensure that your family is well provided for upon your death. Without a Will your spouse or children’s guardians may not be able to reach your assets in a timely manner in order to take care of your debts or other obligations. A well-drafted will ensures that all your assets are distributed upon probate (the legal process in which a court oversees the distribution of property left in a will) without complication.

9. Those with Special Needs: If you have a family member or a child that may need more of an inheritance due to disability or sickness a Will or special needs trusts will ensure that individual is well taken care of.

10. Up-to-date: Even if you have a will, ensure that it is current and correctly describes your beneficiaries and assets. Any time your circumstances change you should up-date your Will to reflect those changes!

In November 2008 Washington State voters approved the Death with Dignity Act, codified as RCW 70.245, making WA the second state in the US (Oregon was the first) to allow doctor assisted suicide.  Specifically, the Act allows terminally ill adults seeking to end their life to request lethal doses of medication from medical and osteopathic physicians. These terminally ill patients must be Washington residents, at least 18 years of age, have less than six months to live and have been deemed mentally competent to make such a request. Other safeguards prescribed by statute include:

Waiting Period:

• Statute requires that at least a 15-day waiting period has taken place between the patient’s initial oral request and the  subsequent written request.

Written Request:

• A written request which must be signed and dated by the terminally ill patient.
• Written request must be witnessed by at least two people who attest the patient is capable and acting voluntarily, and not being coerced to sign the request.
• At least one of the witnesses shall not be the patient’s attending physician, a relative, or owner, operator, or employee of a health care facility where the patient is a resident or getting medical treatment.
• Even once a written request is made the patient may rescind the request at any time and in any manner.

Attending Physician’s Responsibilities:

• Determine whether the patient has a terminal disease.
• Is capable of making decisions and has made the request voluntarily.
• Inform the patient of diagnosis, prognosis, risk of taking the medication to be prescribed, feasible alternatives including comfort care, hospice care, and pain control.
• Refer the patient to a consulting physician for confirmation of diagnosis and determination patient is acting voluntarily.
• Refer to a mental health professional if the patient may be suffering from a psychological disorder.
• Recommend that the patient notify next of kin.
• Complete all required documents.

Once a request has been approved, it is the patient that administers the lethal dose of medication – not their doctor.  For more information pertaining to the Act visit the Washington Department of Health website at: http://www.doh.wa.gov/dwda/ Also, if you are seeking support regarding end of life choices visit ‘Compassion and Choices of Washington’ at the following address: http://www.candcofwa.org/index.html

A Health Care Directive or Living Will as it is sometimes called, is a legal document that sets out your wishes for medical treatment should you have a terminal condition as certified by your physician or are in an irreversible coma as certified by two physicians. In either situation, your directive allows treatment to be withheld or withdrawn so that you may die naturally. In your Health Care Directive, you may also direct whether you would like artificially provided nutrition (food) and hydration (water) stopped in the above situations.

Some individuals find it very empowering to create a directive stating that they do not wish life-sustaining treatment if it’s only purpose is to prolong the process of dying.
By expressing their wishes, they feel they unburden their families and those close to them from making such decisions on their behalf. Moreover, Washington State has a living will registry which allows individuals to store their living will documents for free in a secure, online database. Once you have registered your living will, a copy of your living will is sent to your attending physician and remains online for other authorized health care providers to access should you come under their care. The registry also stores your emergency contact information so that family and next of kin can be contacted. You are always free to update your living will and will be sent yearly reminders to ensure it is accurate and represents your present wishes.

For more information about The Washington State Living Will Registry click the following link:

http://www.doh.wa.gov/livingwill/