Frequently Asked Questions of Ashland Attorney at Law, Tricia D. Hahn
Estate Planning and elder law
Which parts of elder law do you practice?
In addition to estate planning, I counsel elders regarding planning for a time when they may not be able to make certain decisions on their own. We discuss the different methods of planning for incapacity, including using a durable power of attorney, advance directive for health care, and revocable living trust. To learn more about how these documents work, click here.
When substitute decision making is not in place and an elder is no longer able to make certain decisions, sometimes a conservatorship and/or guardianship is necessary. A guardian is a person appointed by the court to make medical and living arrangements for a person who is no longer able to do so. A conservator is a person appointed by the court to make financial decisions for a person who is no longer able to do so. Upon appointment, the protected person loses significant control over his or her affairs, so it is imperative to first explore whether a less restrictive alternative is available.
What is the difference between a Will and a Trust and which one do I really need?
A will is effective upon death and explains who should receive your assets and who is to manage and distribute those assets according to your wishes after your death. A will is admitted to probate. Probate is the process by which the court oversees the transfer of ownership of your assets after your death.
A trust, or revocable living trust, is effective during your life. Your trustee manages and distributes assets of the trust to the beneficiaries according the terms of the trust. Your successor trustee takes over the duties of trustee upon your death, resignation, or incapacity. With a properly funded trust, a probate proceeding is not necessary. This is because certain assets that would have been “probate assets” (see below) are re-titled in the name of the trust so that upon death, the assets can pass to your designated beneficiaries. For further discussion regarding wills and trusts, click here. For further discussion regarding probate and trust administration, click here.
Many people are interested in having a trust to avoid probate. This can be helpful with many estates but it is not right for everyone and there are certain times when a probate proceeding is advantageous. If you own real property and/or other probate assets, it is a good idea to speak with an estate planning attorney about whether a trust is right for you.
What is the difference between Probate Assets and Non-Probate Assets?
A probate asset is one for which a court proceeding is necessary in order to transfer title of the asset from the decedent to the heir or beneficiary. An example of a probate asset is real property. A non-probate asset is one which will automatically transfer to the designated individual upon the death of the asset holder without a court proceeding. Examples of non-probate assets are real property owned with the right of survivorship and retirement accounts with properly designated pay on death beneficiaries.
Oregon’s Advance Directive
What is an Advance Directive?
An Advance Directive, or Advance Directive for Health Care, is a document in which you appoint a Health Care Representative to make health care decisions on your behalf if you are unable to speak for yourself. In it, you state your wishes regarding end of life medical treatment. In some states, this is done with a Power of Attorney for Health Care and a Living Will. Oregon’s Advance Directive essentially combines these two documents into one.
What is the difference between the Advance Directive, POLST, and the Death With Dignity Act?
The POLST (Physician Orders for Life Sustaining Treatment) is a form that is completed by your medical provider. It is a set of medical orders documenting your wishes regarding life-sustaining treatment in the event of an emergency. The POLST is appropriate for people who are seriously ill, frail, or nearing end-of-life. You cannot name a health care representative in a POLST.
The Death With Dignity Act has a much more narrow application and permits a physician to write a lethal prescription for a terminally ill patient. This is subject to a number of requirements, one being that the patient has been diagnosed by two physicians with a terminal illness that will lead to death within six months.
I am young and in excellent health, so I don’t need an Advance Directive, right?
The Advance Directive is appropriate and recommended for all capable adults, not just for the elderly or those in poor health. Accidents and unforeseen illnesses can happen, and if they do, an Advance Directive will ensure that your wishes are clear and will be carried out by the people whom you trust.
How do I complete an Advance Directive? Do I need to see an attorney to complete one?
A new Advance Directive form became effective January 1, 2019, so the first thing to be sure of before you complete one is that you are using the correct form. You can access the new form from the Oregon Health Authority website at the link below:
You do not need to see an attorney to complete an Advance Directive. However, there are certain rules regarding witnesses and acceptance by your health care representative that must be followed for the document to be effective. Some people choose to see an attorney to answer certain questions they have about the form or to make sure that these requirements are met.
What if I only want to name a Health Care Representative?
If you wish only to name a Health Care Representative and not state your wishes regarding end of life medical treatment, you can fill out the Form for Appointing Health Care Representative found below:
I completed an Advance Directive over 10 years ago. Is it still valid?
Yes, as long as it was validly executed at the time, then it is still valid. It is a good idea to review it to make sure that the people who you named as your Health Care Representatives are still good choices, and that your wishes have not changed. Contact information may also need to be updated. If you decide to complete a new form, you will need to make sure it is the current version (provided above), and not the one you completed 10 years ago.
How do I get more information?
If you have further questions or would like to get more information, feel free to contact me at 541-708-5305 or firstname.lastname@example.org.
Can you help me set up a C Corp, S Corp, or LLC?
Yes, we can discuss with you the different business entity structures available and the advantages and disadvantages of each, as well as prepare the necessary paperwork to get your business started.
What costs can I expect from the Oregon Secretary of State?
Filing fees with the Secretary of State typically cost $100. This is due when you initially file your Articles of Incorporation or Articles of Organization, and with your annual report. If you need to make changes throughout the year, there may also be a fee depending on the change. Local government agencies will also require a fee when you apply for a local business license.
Can you do contract review for independent contractors?
We review various types of contracts for individuals and business owners including independent contractor agreements. Oregon has a very specific statute regarding independent contractors and what is required in order to create that relationship. Many people find it helpful to have someone familiar with the statute review the agreement to ensure that it complies with the requirements.
Criminal Law- DUII & Juvenile Defense
What does a typical DUII case consist of?
A typical DUII case will consist of the criminal case in circuit court as well as the administrative suspension of your driver’s license for failure or refusal of the breath test. Your options and the severity of the possible penalties will depend on a number of factors including whether you have any priors and the facts and circumstances of your case, such as whether or not there was a collision or anyone suffered bodily injury.
Why will having a lawyer matter for my case?
An experienced criminal defense lawyer will understand the laws applicable to DUIIs and criminal procedures and will be able to advise you regarding your options and the best possible outcomes. If the officer did not follow the proper procedures when you were pulled over and arrested, a lawyer can raise those issues with a motion and hearing before the judge. A lawyer can negotiate on your behalf with the District Attorney in order to achieve a more favorable sentencing recommendation. A lawyer can also represent you at the implied consent hearing in order to contest the suspension of your driver’s license.
Information on this website is general information and is not to be considered legal advice. It is important to discuss your specific situation with an attorney who can advise you accordingly.