End of Life Issues - South Carolina Bar

Advance Care Planning

1. What is advance care planning?
Advance care planning is a process in which you explore your values and wishes about your health care, learn about treatment options and decisions you may face, talk with your loved ones and health care providers about your wishes and record your wishes.

2. What are advance directives?
An advance directive is a written record of your wishes regarding your health care that you make while you are able to do so and long before there is a medical crisis. Advance directives help your loved ones and health care providers know what kind of health care you want. Advance directives go into effect ONLY when you are not capable of making decisions for yourself.

3. When should I complete my advance directives?
Advance directives should be completed by competent adults 18 years of age or older while they are still capable of making decisions for themselves. Many people choose to complete their advance directives at an important life event such as a marriage or birth of a child and often as they are completing other legal documents such as a will.

4. Where can I get copies of the SC statutory advance directives forms?
SC law provides for several “statutory” forms: Health Care Power of Attorney (SC Code of Laws Title 62 Chapter 5)--allows you to designate someone to make all health care decisions for you when you temporarily or permanently cannot make them for yourself. Living Will (SC Code of Laws Title 44 Chapter 77)--also known as the Declaration of Desire for a Natural Death, this form allows you to express your choices about your care ONLY if you are terminally ill or permanently unconscious. Other documents that meet state standards including the Five Wishes document are accepted as advance directives in SC. The Five Wishes document allows you to communicate your wishes to your family, friends and healthcare providers including decisions about medical treatments you may elect to receive or decline, what you want your loved ones to know about your health and who you would want to make sure your wishes are followed. The Health Care Power of Attorney and Living Will forms are widely available at no cost. You can obtain copies at www.carolinasendoflifecare.org, by calling 1-803-791-4220 or at the website of any of the partnering organizations shown on the brochure. The Five Wishes document is available for $5 per copy online or by calling 1-888-594-7437.

5. Do I need both a Living Will and Health Care Power of Attorney?
No, the Health Care Power of Attorney document allows you to name an agent to make decisions for you when you cannot make your own decisions. It is the most comprehensive of the advance directive forms. The Living Will is only applicable for decisions if you are terminally ill or permanently unconscious. To establish that you are permanently unconscious could require up to six hours of active treatment. If you choose to have both, you should be sure you are expressing consistent wishes in both.

6. Who should I choose to make health care decisions for me when I can’t?
You should choose someone close to you who knows your values and wishes and is strong enough to make tough decisions to carry out your wishes if needed. The person does not necessarily have to be a spouse or close family member but should be someone who is readily available to health care providers if needed.

7. What is a Do Not Resuscitate (DNR) order?
A DNR order is a doctor’s order in your medical record indicating your desire to prevent the administration of cardio-pulmonary resuscitation (CPR) or electrical shocks and assistance with breathing when an event occurs in a health care facility.

8. What is a Do Not Intubate (DNI) order?
Similar to a DNR order, the DNI is a doctor’s order in your medical record which expresses your desire to not be placed on a ventilator to help you breathe.

9. What is the Emergency Medical Services Non-Resuscitation (EMS DNR) order?
The EMS-DNR (Emergency Medical Services Non-Resuscitation Order) is a document obtained from and signed by your physician, at your request, which prohibits emergency personnel from employing resuscitative measures if you are terminally ill. (SC Code of Laws Title 44 Chapter 78)

10. Where should I keep my advance directives?
You should keep one copy of your advance directives with your other important legal documents. It is very important that your primary health care provider and your designated agent have a copy as well.

11. What happens if I don’t have an advance directive?
If you do not have a written advance directive, health care providers and your loved ones may not know your wishes regarding your health care. The Adult Health Care Consent Act (SC Code of Laws Title 44 Chapter 66) provides a priority list of those who can make decisions in the absence of a written advance directive. The Act is not very specific, which may lead to disagreements regarding care among family members. Health care providers will more often go along with the family member who is the most vocal about the care that should be provided.

12. Will my advance directive be honored in other states?
Probably, as long as your written advance directive substantially conforms to the requirements for documents in the state. This is also the case for out of state directives being honored in SC. It is always a good idea to update these directives when you relocate using the state approved forms.

13. What if I change my mind about my agent or about care I may want or not want?
You are free to change your mind at any time regarding the care you want to receive or decline and the person you want to make decisions when you cannot. If circumstances change, you should update the form, discard the old form, collect and destroy all copies of the old form and make sure your health care provider, family members and your designated agent have a copy of the most current version.

14. How do I register to become an organ or tissue donor in SC?
For information or to register to become an organ or tissue donor in South Carolina, go to www.donatelifesc.org or www.SCDMV.org. You can also register to become a donor at any SC Department of Motor Vehicles office.

15. Where can I learn more on advance care planning?

Visit My Life Choices, a program of the South Carolina Coalition for the Care of the Seriously Ill.

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 803-799-7100.

Why you need a will

You need a will in order to put your wishes into effect at your death. Without a will, your property and your surviving family's affairs will be governed by the choices reflected in the statute law of the state of South Carolina. Those choices may not be your choices.

First, your will may dispose of your property in accordance with your wishes, you may choose people and the shares that each will take. Without a will, your property will go to your heirs in shares pre-determined for you by the state's law of intestacy. Dying without a will is called dying "intestate." Roughly summarized: the intestacy law favors your relatives, the closer the relation the greater the share. Your husband or wife takes one-half of your property if you leave a spouse and children. If you leave a spouse and no children, your spouse takes all. If you leave no spouse, but children, then your children take your property.

Generally, if a child of yours does not survive you their children take the share your child would have taken if they had survived you. If neither spouse nor children or grandchildren survive you, then your parents take. If no parents survive then your brothers and your sisters take your property under the state's law of intestacy.

With a will, you may determine which of your heirs will share in your property, and in what order of priority, and also just exactly what their respective shares will be. You may leave them fractional shares of your choice, or you may leave specific items of property to specific people.
With a will, you may leave shares of your property to more distant relatives, to friends, to charities, to your church, to whomever you wish to benefit, and in the shares that you desire.
With a will, you may make gifts to people and require that the beneficiary survive you, or perhaps surviving to a more mature age, or surviving some other person's death.
With a will, you may make gifts into a trust, appointing a trustee to administer your property for the benefit of your survivors. A trust may be very flexible and can keep someone from doing something foolish with their inheritance.
With a will, you may even provide for the final disposition of property held by you and your spouse in joint names with right of survivorship. True, on the death of the first spouse the property passes to the surviving spouse without need of a will. But, that leaves the death of the second spouse to be planned for. And your will is the way to handle that problem.

Your will may designate a person of your choice to act as personal representative of your estate. The will may go further and may specify your personal representative's duties and powers with respect to your estate. Your will may tailor make your estate administration to fit your wishes and the needs of your survivors.

If you have minor children or a family member who cannot look after their own affairs, your will may nominate someone to act as guardian to care for the child or infirm family member. It may also be wise to name someone to act as conservator of the property of such persons.

Finally, your will may be drafted with an eye to the United States and South Carolina tax laws. It may include provisions set up to minimize and, perhaps, entirely to avoid the payment of estate taxes at your death and afterward.

These are some reasons why you need a will. There may be others. But, they will all have this in common: you need a will in order to dispose of your property and provide for your family in accordance with your own wishes.

Taxes at death

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When a South Carolina resident dies, in addition to debts, expenses of administration, and enforceable claims, oftentimes taxes must be paid before distributions can be made to heirs or beneficiaries.

There are many types of taxes that the estate may owe, but the primary tax obligations tend to be state and federal income taxes and federal estate taxes. South Carolina imposes income taxes on income earned during the course of estate administration, and there may be income and/or estate or death taxes imposed by other states or nations. Currently, South Carolina does not impose an estate tax, but other states do. In addition there is a federal estate tax imposed on estates in excess of a threshold, called an “exemption,” that changes from time to time. The size of the estate determines whether there is an estate tax obligation, and the amount of income usually determines what income taxes must be paid.

Not all estates must file a federal estate tax return (Form 706). However, for decedents dying in 2014, a Form 706 must be filed if the total estate value for federal tax purposes, called the "gross estate," which is the total value of the decedent’s assets located in South Carolina and elsewhere, exceeds $5,340,000. This is true even if ultimately no estate tax is due after factoring in allowable deductions and credits. The Form 706 is due nine months after date of death.

Even when a federal estate tax return will be required, no federal estate tax is currently imposed upon property passing to a surviving spouse or to a qualified charity. Additionally, after deductions and credits, estate tax is only imposed on the value of an estate that exceeds the exemption. In January 2013, Congress set the estate tax exemption at $5,000,000 for decedents dying in 2011 and indexed it to inflation. For decedents dying in 2013, the figure was $5,250,000, and the 2014 figure is $5,340,000. The exemption changes annually and is also subject to change by legislation.

One relatively recent concept with which those administering the estates of high net worth individuals should be aware is that of “portability.” Established by Congress in 2010 as part of a broader tax compromise, portability allows a surviving spouse to use a prior deceased spouse’s unused estate tax exemption. For example, in 2014, if a husband dies having an estate of $1,000,000, assuming there are no deductions or credits, since his estate tax exemption is $5,340,000, he would have $4,340,000 of unused exemption. Upon the wife’s death, she can use not only her own $5,340,000 estate tax exemption, but also her husband’s remaining $4,340,000 exemption. In effect, husband and wife are treated as one economic unit.

It is important to remember that portability is not automatic. After the first spouse dies, a Form 706 must be timely filed in which portability is elected in Part 6. If this does not happen, there will be no portability, and the second spouse will only be able to use his or her own exemption, resulting in potentially millions of dollars in additional tax liability.

Finally, income taxes also must be paid on income reportable by the estate. The personal representative of the estate must file the decedent's final income tax returns, which reflect income earned during the decedent’s last partial year alive, with federal and state authorities, and pay the taxes due. If the property in the estate continues to produce income after the decedent is dead, for example, from bank accounts or stocks, in excess of $600 per year, the personal representative of the estate may have to file fiduciary returns for the estate on that continuing income. All income, whether payable to an individual before death or his estate after death, is reportable on the appropriate federal or state income tax return if the return filing threshold is exceeded.

A personal representative who fails to file required returns or who fails to pay taxes when due may incur personal liability to taxing authorities for the unpaid tax, penalties, and interest.

It is thus quite important to seek competent advice from accounting and legal professionals regarding filing requirements and the timely payment of taxes.