Estate Planning In North Dakota

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Introduction to Retirement Planning

What is retirement planning?

What decisions need to be considered as one plans for retirement?  Source and adequacy of income? Activities? Living arrangements? Changing needs?  Reduced abilities (e.g., driving)?  Living expenses?  Health care directives?  Persons to assist in managing your affairs? Health insurance?  Life insurance?  Many of these topics need some consideration.  This page offers brief thoughts on several of these questions.

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Health Care Directive

A common concern is to arrange one's affairs to address the possibility of not being able to care for oneself.  One practice is to direct/authorize someone to make medical decisions for you if you are unable to make those decisions.  State law defines such authorization as a Health Care Directive.

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State law "enable[s] adults to retain control over their own health care during periods of incapacity through health directives and the designation of an individual to make health care decisions on their behalf."
  • The statute includes an optional directive (N.D.C.C. 23-06.5-17).  Although persons may not want to use this directive, it does provide some guidance for individuals to consider

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The health care directive addresses three topics:
  • Name a health care agent to make health care decisions when one is unable to make and communicate health care decisions. 
  • Provide health care instructions for the health care agent to use; the instructions may also be used by health care providers and the person's family in the event the person cannot make and communicate decisions.
  • Make an organ and tissue donation upon death by signing a document of anatomical gift.

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Name a Health Care Agent

  • Persons may appoint a health care agent (and an alternate agent, if so desired) to make health care decisions.  The person can change the agent or alternate agent at any time.  An agent or alternate agent do not need to be appointed.
    It is recommended that if an agent is appointed, the person should discuss the health care directive with the agent and give the agent a copy.
  • If a person does not wish to appoint an agent, you may leave Part I blank and go to Part II and/or Part III.
  • None of the following may be designated as a person's agent: treating health care provider, a nonrelative employee of your treating health care provider, an operator of a long-term care facility, or a nonrelative employee of a long-term care facility. 
  • The health care agent makes health care decisions for the person based on the instructions the person has provided in a document, or the health care agent must act in the person's best interest if the person has not made their health care wishes known.
  • (I know I can change these choices)
    The health care agent is automatically given the powers
  • (A) Make any health care decision for me. This includes the power to give, refuse, or withdraw consent to any care, treatment, service, or procedures. This includes deciding whether to stop or not start health care that is keeping me or might keep me alive and deciding about mental health treatment.
    (B) Choose my health care providers.
    (C) Choose where I live and receive care and support when those choices relate to my health care needs.
    (D) Review my medical records and have the same rights that I would have to give my medical records to other people.
  • The health care agent must follow my health care instructions in this document or any other instructions I have given to my agent. If I have not given health care instructions, the agent must act in my best interest.
  • A person can indicate whether any of the four powers are not granted or are limited. 
  • Explicitly grant the agent authority to decide 1) whether to donate any parts of my body, including organs, tissues, and eyes, when I die, or 2) what will happen with my body when I die (burial, cremation).

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Provide Health Care Instructions

  • If you appointed an agent, health care instructions are optional but would be very helpful to the agent. If an agent is not appointed, health care instructions must be completed in order to create a valid health care directive.

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These instructions must be followed as long as they address my needs.

  • (A) THESE ARE MY BELIEFS AND VALUES ABOUT MY HEALTH CARE (I know I can change these choices or leave any of them blank)
    I want you to know these things about me to help you make decisions about my health care:
    My goals for my health care: _____________________________________________________________________________
    My fears about my health care: __________________________________________________________________________
    My spiritual or religious beliefs and traditions: ____________________________________________________________
    My beliefs about when life would be no longer worth living: ________________________________________________
    My thoughts about how my medical condition might affect my family: _______________________________________
  • (B) THIS IS WHAT I WANT AND DO NOT WANT FOR MY HEALTH CARE (I know I can change these choices or leave any of them blank)
    Many medical treatments may be used to try to improve my medical condition or to prolong my life. Examples include artificial breathing by a machine connected to a tube in the lungs, artificial feeding or fluids through tubes, attempts to start a stopped heart, surgeries, dialysis, antibiotics, and blood transfusions. Most medical treatments can be tried for a while and then stopped if they do not help.
    I have these views about my health care in these situations:
    (Note: You can discuss general feelings, specific treatments, or leave any of them blank).
  • If I had a reasonable chance of recovery and were temporarily unable to make and communicate health care decisions for myself, I would want: ______________________________________________________________________
    If I were dying and unable to make and communicate health care decisions for myself, I would want: _______
    If I were permanently unconscious and unable to make and communicate health care decisions for myself, I would want: ____________________________________________________________________________________________
    If I were completely dependent on others for my care and unable to make and communicate health care decisions for myself, I would want: _______________________________________________________________________
    In all circumstances, my doctors will try to keep me comfortable and reduce my pain. This is how I feel about pain relief if it would affect my alertness or if it could shorten my life: ______________________________________
    There are other things that I want or do not want for my health care, if possible:
    Who I would like to be my doctor:  ________________________________________________________________________
    Where I would like to live to receive health care: ___________________________________________________________
    Where I would like to die and other wishes I have about dying: _____________________________________________
    My wishes about what happens to my body when I die (cremation, burial):  _________________________________
    Any other things:
    _____________________________________________________________________________

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Make an anatomical gift

The person can designate a desire to be an organ donor at the time of death, have discussed this with family, and asked the family to honor those wishes. Indicate a wish to donate any needed organs and tissue, or only specified  organs and tissue.

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Make the document legal

  • Revoke any prior health care directive.
  • The person must date and sign the health care directive.
  • The health care directive is not valid unless it is 1) notarized or 2) signed by two qualified witnesses. 
    • The person notarizing this document may be an employee of a health care or long-term care provider. At least one witness to the execution of the document must not be a health care or long-term care provider providing the person direct care.
    • None of the following may be used as a notary or witness:
      1. A person you designate as your agent or alternate agent;
      2. Your spouse;
      3. A person related to you by blood, marriage, or adoption;
      4. A person entitled to inherit any part of your estate upon your death; or
      5. A person who has, at the time of executing this document, any claim against your estate.
  • Option 1: Notary Public to notarize the person's signature
  • Option 2: Two witnesses who sign the document indicating the the person acknowledged his or her signature; the witness must be at least eighteen years of age.  The witness must indicate whether he or she is a health care provider giving direct care to the person.

 

Accepting the appointment of Health Care Agent

The person appointed as the health care agent must agree to serve and acknowledge that he or she understands the duty to act consistently with the expressed desires of the principal. The agent must indicate an understanding  of the authority he or she has been granted over health care decisions for the person only if the principal becomes incapacitated. Indicate an understanding of the obligation to act in good faith in exercising the health care authority.  Indicate an understanding that the principal may revoke this power of attorney at any time in any manner.

If the agent chooses to withdraw during the time the principal is competent, the agent must notify the principal of that decision. If I choose to withdraw when the principal is not able to make health care decisions, I must notify the principal's physician.

Signed and dated by agent and alternate agent

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PRINCIPAL'S STATEMENT

The person signed and dated that he or she has read a written explanation of the nature and effect of an appointment of a health care agent.

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Durable Power of Attorney

Durable Power of Attorney at http://www.legis.nd.gov/cencode/t30-1c30.pdf

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Medicaid Eligibility

Medicaid Eligibility Factors at http://www.state.nd.us/robo/projects/medicaid/medicaid.htm

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Closing Thoughts

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