Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen & Associates,
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 More information at www.njlaws.com/

Saturday, May 14, 2016

POLST Empowers Patients in Healthcare Decisions



POLST Empowers Patients in Healthcare Decisions

Talking about your wishes in a chronic illness or at the end of life is a conversation that can be awkward, difficult and for some of us, one we would rather avoid. But it’s a conversation you must have as an important and necessary part of good medical care. You have the right to participate fully in all your healthcare decisions, and this becomes especially important near the end of life.

New Jersey now has a new resource to make your preferences known called Practitioner Orders for Life-Sustaining Treatment, or POLST. POLST is a medical order form that details your wishes regarding life-sustaining treatment. POLST forms currently are used in 42 states, and Gov. Chris Christie signed New Jersey's POLST law in December 2011.

The form is intended to be completed jointly by you and your physician or an advanced practice nurse (APN). You can modify your POLST at any time. To access New Jersey’s POLST form, go to www.njha.com/POLST.

Your healthcare team wants to understand your wishes and goals of care, and filling out the POLST form is one of the easiest and simplest ways to do this. POLST can help you make meaningful personal choices regarding your care, and your instructions will be honored across all care settings including emergency medical services, hospitals and nursing homes.

You should have a POLST form if you are:
  • Seriously ill with a life-limiting advanced illness
  • Frail and weak and have trouble performing routine daily activities
  • Afraid of losing the capacity to make your own healthcare decisions in the near future
  • Living in a nursing home or hospice.

Educate yourself by talking with your doctor or APN about your options, and then discuss your choices with your family. How do you want to live your life in the time you have left? How much do you want to know about your illness and how much does your family know about your priorities and wishes? What are your goals in the next year or so? These are all issues you need to consider as you determine your treatment options. Having a completed POLST form also will allow you to make known any personal, cultural or spiritual practices related to your care. Your quality of life during this time should be totally under your control.

POLST complements an Advance Directive and does not totally replace that document. You may still need an advance directive to appoint a legal healthcare administrator. It is recommended that all adults have an advance directive regardless of their health status. If there is a conflict between the documents, the  most current document will be followed. (more)

POLST can help you enhance your personal liberty at the end of life, and it empowers you to make a clear statement about the type of medical services you will receive among your end-of-life care. It's up to you to take the initiative and express your wishes, and POLST will help you do just that. Talk with your doctor or advance practice nurse about POLST.

source http://www.njha.com/quality-patient-safety/advanced-care-planning/polst/

New Jersey Practitioner Orders For Life-Sustaining Treatment (POLST)

HIPAA permits disclosure of POLST to Other healthcare professionals as necessary
New Jersey Practitioner Orders For Life-Sustaining Treatment (POLST)
Follow these orders, then contact physician/APN. This Medical Order Sheet is based on the current medical condition of the person
referenced below and their wishes stated verbally or in a written advance directive. Any section not completed implies full treatment for
that section. Everyone will be treated with dignity and respect.
Person Name (last, first, middle) D ate of Birth
6/15/15 send original form with person whenever transferred
A
Goals of Care
(See reverse for instructions. This section does not constitute a medical order.)
B
Medical Interventions: Person is breathing and/or has a pulse
❏❏ Full Treatment. Use all appropriate medical and surgical interventions as indicated to support life. If in a nursing facility, transfer to hospital if
indicated. See section D for resuscitation status.
❏❏ Limited Treatment. Use appropriate medical treatment such as antibiotics and IV fluids as indicated. May use non-invasive positive airway
pressure. Generally avoid intensive care.
❏❏ Transfer to hospital for medical interventions.
❏❏ Transfer to hospital only if comfort needs cannot be met in current location.
❏❏ Symptom Treatment Only. Use aggressive comfort treatment to relieve pain and suffering by using any medication by any route, positioning,
wound care and other measures. Use oxygen, suctioning and manual treatment of airway obstruction as needed for comfort. Use Antibiotics only
to promote comfort. Transfer only if comfort needs cannot be met in current location.
Additional Orders:______________________________________________________________________________
C
Artificially Administered Fluids and Nutrition:
Always offer food/fluids by mouth if feasible and desired.
q No artificial nutrition. q Defined trial period of artificial nutrition.
q Long-term artificial nutrition.
D
Cardiopulmonary Resuscitation (CPR)
Person has no pulse and/or is not breathing
q Attempt resuscitation/CPR
q Do not attempt resuscitation/DNAR
Allow Natural Death
E
If I lose my decision-making capacity, I authorize my surrogate decision maker, listed below, to modify or revoke the NJ POLST orders in consultation with
my treating physician/APN in keeping with my goals: q Yes q No
q Health care representative identified in an advance directive q Other surrogate decision maker
Print Name of Surrogate (address on reverse) Phone Number
F
Signatures:
I have discussed this information with my physician/APN.
Print Name______________________________________
Signature________________________________________
q Person Named Above
q Health Care Representative/Legal Guardian
q Spouse/Civil Union Partner
q Parent of Minor
q Other Surrogate
Airway Management
Person is in respiratory distress with a pulse
q Intubate/use artificial ventilation as needed
q Do not intubate - Use O2, manual treatment to
relieve airway obstruction, medications for comfort.
q Additional Order (for example defined trial period of mechanical
ventilation) _________________________________________________
Has the person named above made an anatomical gift:
q Yes q No q Unknown
These orders are consistent with the person’s medical condition, known
preferences and best known information.
PRINT - Physician/APN Name Phone Number
Physician/APN Signature (Mandatory) Date/Time
Professional License Number
Print Persons Name (last, first, middle) Date of Birth
Print Persons Address
Contact Information
Print Surrogate Health Care Decision Maker Address Phone Number
Directions for Health Care Professional
Completing POLST
■■ Must be completed by a physician or advance practice nurse.
■■ Use of original form is strongly encouraged. Photocopies and faxes of signed POLST forms may be used.
■■ Any incomplete section of POLST implies full treatment for that section.
Reviewing POLST
POLST orders are actual orders that transfer with the person and are valid in all settings in New Jersey. It is recommended that POLST be reviewed
periodically, especially when:
■■ The person is transferred from one care setting or care level to another, or
■■ There is a substantial change in the person’s health status, or
■■ The person’s treatment preferences change.
Modifying and Voiding POLST - An individual with decision making capacity can always modify/void a POLST at any time.
■■ A surrogate, if designated in Section E on the front of this form, may, at any time, void the POLST form, change his/her mind about the treatment
preferences or execute a new POLST document based upon the person’s known wishes or other documentation such as an advance directive.
■■ A surrogate decision maker may request to modify the orders based on the known desires of the person or, if unknown, the person’s best interest.
■■ To void POLST, draw a line through all sections and write “VOID” in large letters. Sign and date this line.
Section A
What are the specific goals that we are trying to achieve by this treatment plan of care? This can be determined by asking the simple question:
“What are your hopes for the future?” Examples include but not restricted to:
■■ Longevity, cure, remission
■■ Better quality of life
■■ Live long enough to attend a family event (wedding, birthday, graduation)
■■ Live without pain, nausea, shortness of breath
■■ Eating, driving, gardening, enjoying grandchildren
Medical providers are encouraged to share information regarding prognosis in order for the person to set realistic goals.
Section B
■■ When “limited treatment” is selected, also indicate if the person prefers or does not prefer to be transferred to a hospital for additional care.
■■ IV medication to enhance comfort may be appropriate for a person who has chosen “symptom treatment only.”
■■ Non-invasive positive airway pressure includes continuous positive airway pressure (CPAP), or bi-level positive airway pressure (BiPAP).
■■ Comfort measures will always be provided.
Section C
Oral fluids and nutrition should always be offered if medically feasible and if they meet the goals of care determined by the person or surrogate. The
administration of nutrition and hydration whether orally or by invasive means shall be within the context of the person’s wishes, religion and cultural beliefs.
Section D
Make a selection for the person’s preferences regarding CPR and a separate selection regarding airway management. A defined trial period of mechanical
ventilation may be considered, for example, when additional time is needed to assess the current clinical situation or when the expected need would
be short term and may provide some palliative benefit.
Section E
This section is applicable in situations where the person has decision making capacity when the POLST form is completed. A surrogate may only void or
modify an existing POLST form, or execute a new one, if named in this section by the person.
Section F
POLST must be signed by a practitioner, meaning a physician or APN, to be valid. Verbal orders are acceptable with follow-up signature by physician/
APN in accordance with facility/community policy. POLST orders should be signed by the person/surrogate. Indicate on the signature line if the person/
surrogate is unable to sign, declined to sign, or a verbal consent is given.
HIPAA permits disclosure of POLST to Other healthcare professionals as necessary

send original form with person whenever transferred

What does”POLST”stand for?


Frequently Asked Questions for Providers
What does”POLST”stand for?
POLST stands for Practitioner Orders for Life-Sus- taining Treatment.
What is the POLST form?
POLST is a set of medical orders that help give se- riously ill or frail elderly patients more control over their end-of-life care. Produced on a distinctive green form and signed by both the doctor/APN and patient/ surrogate, POLST specifies the types of medical treat- ment that a patient wishes to receive toward the end of life. As a result, POLST can prevent unwanted or medically ineffective treatment, reduce patient and family suffering and help ensure that patients’ wishes are honored.
What information is included on the POLST form?
Documentation on the POLST form includes:
  •  Goals of care for the patient
  •  Preferences regarding cardiopulmonary resuscita- tion attempts
  •  Preferences regarding use of intubation and me- chanical ventilation for respiratory failure
  •  Preferences for artificially administered nutrition and hydration
  •  Other specific preferences regarding medical in- terventions that are desired or declined.
    Why was POLST developed?
    POLST was developed in response to seriously ill patients receiving medical treatments that were not consistent with their wishes. The goal of POLST is to provide a framework for healthcare professionals so they can provide the treatments patient DO want and avoid those treatments that patients DO NOT want.
Is POLST mandated by law?
Filling out a POLST form is entirely voluntary. How- ever, New Jersey law requires that medical orders con- tained in a POLST be followed by healthcare profes- sionals and provides immunity from civil or criminal liability to those who comply in good faith with a pa- tient’s POLST.
Who should have a POLST form?
POLST is designed for seriously ill patients or those who are medically frail with limited life expectancy, regardless of their age.
Does the POLST form replace a traditional Advance Directive?
The POLST form complements an Advance Direc- tive and is not intended to replace that document. An Advance Directive may still be necessary to appoint a legal healthcare decision maker and is recommended for all adults, regardless of their health status.
If someone has a POLST form and an Advance Directive that conflict, which takes precedence?
Ideally, the values expressed on both documents should be the same. If there is conflict between the two documents, a conversation with the patient or surrogate should take place to determine the most current preferences as soon as possible. The POLST and the Advance Directive can then be updated based on these more current treatment choices. If this cannot be done and a crisis ensues, care should be provided in accordance with the most recent doc- ument, whether it be the Advance Directive or the POLST.
page1image28640
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Who should discuss and complete the POLST form with patients?
Having a conversation with a patient about end-of-life issues is an important and necessary part of good med- ical care. The law allows a physician or an advance practice nurse to complete a POLST form. In many cases, these practitioners will initiate conversations with their patients to understand their wishes and goals of care. Depending on the situation and setting, other trained staff members – such as nurses, palliative care team members, social workers or chaplains – may also play a role in starting the POLST conversation. However, physicians/APNs are responsible for the fi- nal clarification of those preferences and documenta- tion of the appropriate orders on the POLST form.
Can a POLST form be completed for patients who can no longer communicate their treatment wishes?
Yes. A physician or advance practice nurse can com- plete the POLST form based on a legally recognized surrogate decision maker’s understanding of the pa- tient’s preferences. The surrogate can then sign the POLST form on behalf of the patient.
What should be done with the form after it is completed and signed?
  •  The original POLST form, on green paper, stays with the patient at all times. If the patient is trans- ferred to another setting, the original POLST form goes with the patient.
  •  In the acute care or long term care settings, the original form should be kept in the patient’s med- ical record or file in the doctors order section, and copies should be made or scanned into the medi- cal record to maintain.
  •  At home, patients should be instructed to place the original form in a visible location so it can be found easily by emergency medical personnel – usually on a table near the patient’s bed or on the refrigerator. Copies may be kept for record-keeping.
Can a patient’s POLST form be changed?
Yes, the POLST can be modified or rescinded by a patient with decision-making capacity, verbally or in writing, at any time. Changes may also be made by the patient’s legally recognized surrogate, if the patient previously authorized the surrogate, via the POLST form, to make such modifications. Any changes to the POLST form should be made in collaboration with the patient’s physician or advance practice nurse.
When should a patient’s POLST form be reviewed?
It is good clinical practice to review a patient’s POLST form when any of the following occur:
  •  The patient is transferred from one medical or res- idential setting to another
  •  There is a significant change in the person’s health status, or there is a new diagnosis
  •  The patient’s treatment preferences change.
    Are faxed copies and photocopies valid? Must green paper be used?
    Faxed copies and photocopies are valid. Green paper is preferred and should be used to distinguish the form from other forms in the patient’s medical record; how- ever, the form will be honored on any color paper as long as it contains the appropriate signatures.
    Where is POLST being used now?
    POLST was originally developed in Oregon. There are a number of states that have established POLST programs or are currently developing programs. For more information on the national POLST paradigm, including published research and a complete listing of states using POLST, visit www.POLST.org

page3image264
Does a POLST form take the place of other DNR order forms?
The patient’s preferences for cardiopulmonary resus- citation attempts and airway management are con- tained in a POLST form and should be honored upon receipt. However, hospitals and nursing facilities may still use other forms of Do Not Resuscitate orders in addition to the POLST in keeping with institution- al policies. The N.J. Out-of-Hospital DNR form that has been utilized by EMS since 1997 will remain valid and should be honored upon receipt. However, even- tually, the POLST form will evolve to replace most other order forms for resuscitation in all settings. Until that time, it is appropriate to honor all forms that are current and have not been rescinded or replaced by a more current form.
Does the POLST form expire?
No. However, it is recommended that a POLST form be reviewed frequently and especially when there is a change in medical condition, transfer to a different level of care setting or a change in preferences of the patient.
What happens if a POLST form is willfully ignored?
Healthcare professionals who intentionally ignore a POLST form will be subject to discipline for profes- sional misconduct pursuant to Section 8 of P.L. 1978, c. 73 (C.45:1-21). Hospitals and healthcare facili- ties that intentionally ignore a POLST are subject to fines. Others such as family members who willfully conceal, ignore, hide, forge, falsify or fail to disclose a valid POLST form are guilty of a crime in the fourth degree. If the act of willfully concealing or withholding the form leads to the involuntary earlier death of the patient, it shall constitute a crime of the first degree.
Why is the first section about “Goals of Care”?
The goals of care for a patient’s healthcare plan are an important part of the comprehensive understanding of the patient’s medical condition, expected progno- sis and the patient’s specific goals, such as wanting to spend time at home with family, wanting to get treat- ments that allow the patient to live until a loved one’s wedding or wanting to be comfortable and pain free regardless of length of life. These specific goals should be part of every conversation with patients about their treatment plans and the translation of those goals into physician/APN orders to accomplish those goals.
source http://www.nj.gov/health/advancedirective/documents/polst_faqs_providers.pdf 

Practitioner Orders for Life-Sustaining Treatment – is a healthcare planning tool that empowers individuals to work closely with their medical team to detail their personal goals and medical preferences when facing a serious illness.

POLST
   
POLST – Practitioner Orders for Life-Sustaining Treatment – is a healthcare planning tool that empowers individuals to work closely with their medical team to detail their personal goals and medical preferences when facing a serious illness. Gov. Chris Christie signed New Jersey's POLST law in December 2011, and it's now being introduced statewide to help patients and families with end-of-life care planning.
The new POLST form is designed to be completed jointly by an individual and a physician or advance practice nurse, expressing the individual's goals of care and medical preferences. Unlike other documents like an Advance Directive, a completed POLST form is an actual medical order that becomes a part of the individual's medical record. It also is valid in all healthcare settings.
This process makes patients and their medical professionals partners in ensuring the patient's wishes are expressed and respected. That is the promise of POLST.
For additional information, visit the POLST national Web site http://www.ohsu.edu/polst
Webinars

How is POLST Different from an Advance Directive

How is POLST Different from an Advance Directive?
POLST complements an Advance Directive and does not totally replace that document. You may still need an advance directive to appoint a legal healthcare administrator. It is recommended that all adults have an advance directive regardless of their health status. If there is a conflict between the documents, have a conversation with your practitioner as soon as possible to determine the most current preferences.
The promise of POLST is that it empow- ers you to make the important decisions about your end-of-life care. Have the POLST conversation with your medical professional page2image1152 page2image1312 page2image1736 page2image1896 page2image2056 page2image2648 page2image3240 page2image3832 page2image4424 page2image5016
The Promise of POLST:
Goals of Care
Taking Charge of Your Healthcare Treatment at the End of Life
This section details how you want to live your life in the time you have left. What is most im- portant to you as you deal with a life-limiting illness? Do you have personal goals or family milestones you would like to reach? How much do you want to know about your illness? How much does your family know about your priori- ties and wishes? These are all issues you should consider. Your POLST form will allow you to make known any personal, cultural or spiritual practices related to your care.
Talking about your wishes during a serious, life-al- tering illness can be difficult, emotional and, and for some of us, is a conversation we would rather avoid. But it’s a conversation you must have as an import- ant and necessary part of good medical care. You have the right to participate fully in all your healthcare decisions – and that’s even more important near the end of life.
The best way to make your preferences known is by talking
with your healthcare provider and filling out the Practi-
tioner Orders for Life-Sustaining Treatment form, or POLST. POLST is a medical order form that empowers individuals by carefully detailing their personal wishes regarding end-of-life care.

Medical Interventions
POLST can help you make meaningful personal choices regarding your care – and ensure that every member of the healthcare teams understands and respects those choices. Individuals fill out the POLST form together with their physician or advance practice nurse. It’s signed by all of you and then becomes a permanent part of your medical record. Your POLST form will trav- el with you and must be honored in all his/her healthcare settings. And you can modify your POLST form at any time.
The form also will allow you to work with your medical professional to clearly define the types of medical interventions you want – or don’t want. For example, you may specify that you want comfort measures only, which is medical treatment intended to eliminate pain and suf- fering. You may specify an array of other treat- ment options such as intravenous fluids or an- tibiotics. Or you may state your wishes for full treatment, including all options available to sustain your life which could include a feeding tube and cardio pulmonary resuscitation.
You should have a POLST form if you are:
Make Your Wishes Known: Choices to Discuss with Your Healthcare Professional
Seriously ill with a life-limiting ad- vanced illness
Frail and weak and have trouble per- forming routine daily activities
There are two very important parts of the POLST form for you to describe your goals and wishes at the end of life: your “goals of care” and the medical interventions that you do and do not want.
Afraid of losing the capacity to make your own healthcare decisions in the near future
Living in a nursing home or hospice.
source http://www.nj.gov/health/advancedirective/documents/polst_brochure_consumers.pdf

Practitioner Orders for Life-Sustaining Treatment (POLST)

Practitioner Orders for Life-Sustaining Treatment (POLST)

Practitioner Orders for Life Sustaining Treatment Governor Christie signed legislation in 2011 that enabled patients to indicate their preferences regarding life-sustaining treatment through the Practitioner Orders for Life Sustaining Treatment (POLST) form. This form, signed by a patient's attending physician or advanced practice nurse, provides instructions for health care personnel to follow for a range of life-prolonging interventions. This form becomes part of a patient's medical records, following the patient from one healthcare setting to another, including hospital, nursing home or hospice.
Pursuant to P.L. 2011, c. 145, the Institute for Quality & Patient Safety Organization was designated as the Lead Agency for Physician Orders for Life-Sustaining Treatment Act.
source http://www.nj.gov/health/advancedirective/polst/

Monday, May 09, 2016

Guardianship Terms and Procedures


 Guardianship Terms and Procedures 

 Published: 04/2014, CN: 11796 (Guardianship - Terms and Procedures) page 1 of 2 

 The guardianship reporting forms were designed to be easy to understand. However, some terms may be unfamiliar or unclear to guardians. The following definitions and instructions are intended to clarify any confusion and enable guardians to independently fulfill their reporting responsibilities. 

 - Interested Parties (or Parties in Interest) 

 The term “Interested Parties” (or parties-in-interest) includes the nearest of kin of the incapacitated person, meaning those relatives served with notice of the underlying guardianship action, including any relatives identified or located after the filing of the complaint and prior to entry of the judgment. Note that a child of an incapacitated person need not be served during minority but must be served upon reaching the age of eighteen (18) years, even if such child was a minor at the time of the guardianship proceeding and therefore not listed as an interested party in the verified complaint. Interested parties may also include any agent(s) appointed pursuant to a power of attorney or advance directive, as well as the director of a residential care facility having custody of the incapacitated person, and/or the attorney appointed for the incapacitated person in the guardianship action. If an interested party is under a guardianship or has died, then this should be noted in the certification of service section. 

 - Service 

 All of the forms include a certification of service in which you as guardian must specify when and how the report was served on the parties in interest. As noted at the beginning of the Report of Guardian Cover Page, you must file the original report with the Surrogate and serve copies of the report on the interested parties. In terms of service, you should consult the Judgment to see if any particular method of service is required (i.e., by certified mail). If nothing is stated in the Judgment, then use your discretion as to the method of service. 

 It is not necessary to file proof of service (i.e., signed certified mail return receipt cards) with the Surrogate. However, if the underlying guardianship action was contested, or if you anticipate that an interested party may raise objections now or in the future, then you may at your discretion file proof of service with the Surrogate. 

 - Fees 

 By statute, a fee of $5/page is required for all documents filed with the Surrogate. Fees are payable to the “Surrogate of _____ County” or “_____ County Surrogate” and are not paid to the State of New Jersey. Guardians may contact the appropriate Surrogate’s Court to inquire as to the method of payment (i.e., cash, check, money order). Note that it is the responsibility of the guardian to make copies for purposes of service on other parties, and additional fees may be assessed if you request that the Surrogate make the copies for you. 

 - Reporting Period 

 Most guardians are directed to report annually, at or before the anniversary date of the Judgment of Incapacity, so most reports will cover a 12-month period. Strict adherence to this time period may be difficult depending on the timing of the guardianship judgment and the nature of the guardianship reporting. For example, a guardian appointed on April 13th and required to file the Comprehensive Accounting must submit bank statements Guardianship Terms and Procedures 
Published: 04/2014, CN: 11796 (Guardianship - Terms and Procedures) page 2 of 2 
showing balances at the beginning and ending of the accounting period, but banks may issue statements as of the first day of the month, not the 13th. A guardian in this situation might decide to file her first accounting for the period of April 13th – March 31st, and then start the next accounting as of the following April 1st. Even though the first accounting covers less than 12 months, this is acceptable. After the first accounting, the guardian will file reports for a full 12-month period, with bank account statements as of the beginning (April 1st) and end (March 31st) of each yearly period. 

Although it is acceptable to slightly adjust the reporting period for convenience, it is not acceptable to deviate substantially from the reporting deadline imposed by the Judgment of Incapacity. For example, a guardian appointed on April 13th may not decide to report through December 31st in order to achieve a future reporting period of January 1st through December 31st. If all guardians were allowed to determine the periods for reporting, many guardians would opt for a period coinciding with the calendar year. This would result in an influx of reports at the same time and would inhibit prompt review of submissions by the volunteers of the Guardianship Monitoring Program. 

Introductory Instructions: Guardianship Reporting For

Introductory Instructions: Guardianship Reporting Forms
Published: 04/2014, CN: 11795 (Guardianship – Introductory Instructions) page 1 of 1
Generally, an individual appointed as a guardian of the person, estate, or person and estate of an
incapacitated person must periodically report to the court regarding the guardianship. Forms
have been developed and approved by the Supreme Court for use by guardians subject to
reporting requirements. All guardians required to report must utilize these forms which can be
completed online or printed and filled out in type or neat handwriting.
Consult the Judgment and Letters
The first step for any guardian is to look to the Judgment of Incapacity (or Judgment of
Guardianship) entered by the Superior Court, along with the Letters of Guardianship issued by
the Surrogate. Both the Judgment and the Letters specify the type of your responsibilities as a
guardian. An individual may be appointed as guardian of the person, as guardian of the estate
(sometimes referred to as property), or as guardian of the person and estate. In some cases, one
person may be appointed as guardian of the person and a different person appointed as guardian
of the estate. For purposes of reporting, each guardian must identify the nature of his or her
guardianship and file the appropriate report(s). If multiple guardians are appointed as to the same
area (co-guardians of person, or co-guardians of estate, or co-guardians of person and estate)
then all guardians must report. It is acceptable for all co-guardians to file a single report, signed
by all, or to file separate reports. Refer to the Judgment as to any requirement for service of a
report filed by one guardian on the other co-guardian(s).
After determining whether you are appointed as a guardian of the person, a guardian of the
estate, or a guardian of both person and estate, look to the Judgment to see when you must
report. Guardians are often required to report on or before the annual anniversary of the date of
their appointment, but in some cases the Judgment will set a different period. The date of
appointment is the date of entry of the Judgment, not the date when letters were issued by the

Surrogate.

Saturday, April 09, 2016

Frequently Asked Questions on Gift Taxes

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Frequently Asked Questions on Gift Taxes

Who pays the gift tax?

The donor is generally responsible for paying the gift tax. Under special arrangements the donee may agree to pay the tax instead. Please visit with your tax professional if you are considering this type of arrangement.

What is considered a gift?

Any transfer to an individual, either directly or indirectly, where full consideration (measured in money or money's worth) is not received in return.

What can be excluded from gifts?

The general rule is that any gift is a taxable gift. However, there are many exceptions to this rule. Generally, the following gifts are not taxable gifts.
  1. Gifts that are not more than the annual exclusion for the calendar year.
  2. Tuition or medical expenses you pay for someone (the educational and medical exclusions).
  3. Gifts to your spouse.
  4. Gifts to a political organization for its use.
In addition to this, gifts to qualifying charities are deductible from the value of the gift(s) made.

May I deduct gifts on my income tax return?

Making a gift or leaving your estate to your heirs does not ordinarily affect your federal income tax. You cannot deduct the value of gifts you make (other than gifts that are deductible charitable contributions). If you are not sure whether the gift tax or the estate tax applies to your situation, refer to Publication 559, Survivors, Executors, and Administrators.

How many annual exclusions are available?

The annual exclusion applies to gifts to each donee. In other words, if you give each of your children $11,000 in 2002-2005, $12,000 in 2006-2008, $13,000 in 2009-2012 and $14,000 on or after January 1, 2013, the annual exclusion applies to each gift. The annual exclusion for 2014, 2015, and 2016 is $14,000.

What if my spouse and I want to give away property that we own together?

You are each entitled to the annual exclusion amount on the gift. Together, you can give $22,000 to each donee (2002-2005) or $24,000 (2006-2008), $26,000 (2009-2012) and $28,000 on or after January 1, 2013 (including 2014, 2015, and 2016).

What other information do I need to include with the return?

Refer to Form 709 (PDF), 709 Instructions and Publication 559. Among other items listed:
  1. Copies of appraisals.
  2. Copies of relevant documents regarding the transfer.
  3. Documentation of any unusual items shown on the return (partially-gifted assets, other items relevant to the transfer(s)).

What is "Fair Market Value?"

Fair Market Value is defined as: "The fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. The fair market value of a particular item of property includible in the decedent's gross estate is not to be determined by a forced sale price. Nor is the fair market value of an item of property to be determined by the sale price of the item in a market other than that in which such item is most commonly sold to the public, taking into account the location of the item wherever appropriate." Regulation §20.2031-1.

Whom should I hire to represent me and prepare and file the return?

The Internal Revenue Service cannot make recommendations about specific individuals, but there are several factors to consider:
  1. How complex is the transfer?
  2. How large is the transfer?
  3. Do I need an attorney, CPA, Enrolled Agent (EA) or other professional(s)?
For most simple, small transfers (less than the annual exclusion amount) you may not need the services of a professional.

However, if the transfer is large or complicated or both, then these actions should be considered; It is a good idea to discuss the matter with several attorneys and CPAs or EAs. Ask about how much experience they have had and ask for referrals. This process should be similar to locating a good physician. Locate other individuals that have had similar experiences and ask for recommendations. Finally, after the individual(s) are employed and begin to work on transfer matters, make sure the lines of communication remain open so that there are no surprises.

Finally, people who make gifts as a part of their overall estate and financial plan often engage the services of both attorneys and CPAs, EAs and other professionals. The attorney usually handles wills, trusts and transfer documents that are involved and reviews the impact of documents on the gift tax return and overall plan. The CPA or EA often handles the actual return preparation and some representation of the donor in matters with the IRS. However, some attorneys handle all of the work. CPAs or EAs may also handle most of the work, but cannot take care of wills, trusts, deeds and other matters where a law license is required. In addition, other professionals (such as appraisers, surveyors, financial advisors and others) may need to be engaged during this time

Do I have to talk to the IRS during an examination?

You do not have to be present during an examination unless IRS representatives need to ask specific questions. Although you may represent yourself during an examination, most donors prefer that the professional(s) they have employed handle this phase of the examination. You may delegate authority for this by executing Form 2848 "Power of Attorney."

What if I disagree with the examination proposals?

You have many rights and avenues of appeal if you disagree with any proposals made by the IRS.  See Publications 1 and 5 (PDF) for an explanation of these options.

What if I sell property that has been given to me?

The general rule is that your basis in the property is the same as the basis of the donor. For example, if you were given stock that the donor had purchased for $10 per share (and that was his/her basis), and you later sold it for $100 per share, you would pay income tax on a gain of $90 per share. (Note: The rules are different for property acquired from an estate).
Most information for this page came from the Internal Revenue Code: Chapter 12--Gift Tax (generally Internal Revenue Code §2501 and following, related regulations and other sources)

Can a married same sex donor claim the gift tax marital deduction for a transfer to his or her spouse?

For federal tax purposes, the terms “spouse,” “husband,” and “wife” includes individuals of the same sex who were lawfully married under the laws of a state whose laws authorize the marriage of two individuals of the same sex and who remain married.  Also, the Service will recognize a marriage of individuals of the same sex that was validly created under the laws of the state of celebration even if the married couple resides in a state that does not recognize the validity of same-sex marriages.
However, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.
Gifts to your spouse are eligible for the marital deduction.
For further information, including the timeframes regarding filing claims or amended returns, see Revenue Ruling 2013-17.
Revenue Ruling 2013-17, along with updated Frequently Asked Questions for same-sex couples and updated FAQs for registered domestic partners and individuals in civil unions, are available today on IRS.gov. See also Publication 555, Community Property.

How do I Secure Gift Tax Account Information?

Get Gift Tax Account Information For Unknown Years

When the tax periods for filed Forms 709 are unknown, a written request may be made to the IRS to secure that information, if any. The written request should include language requesting a determination of all gift tax returns filed for the taxpayer between certain years. Keep in mind that data before 2000 is not available online and may take up to 30 days for a response. Using the “Chart for all other transcripts” on Page 2 of Form 4506-T, either mail or fax your written request to the appropriate IRS office. The signature requirements and required documentation are identical to the requirements for Form 4506-T. No fee applies.
  • Once specific years are known, use Form 4506-T to request an account transcript for each tax period, or Form 4506 to request a copy of a specific gift tax return. Follow instructions below.

Get Gift Tax Account Information Using Form 4506-T or Transcript Delivery Service (TDS)

Form 4506-T, Request for Transcript of Tax Return, is used to request an account transcript for tax periods where a tax return is known to have been filed.  
  • Complete Form 4506-T paying special attention to Line 6. Check the box at Line 6b of Form 4506-T to request an account transcript of specific years you indicate on Line 9. No other option listed under Line 6 on Form 4506-T is available for gift tax.
  • Using the “Chart for all other transcripts” on Page 2 of Form 4506-T, either mail or fax your completed request to the appropriate IRS office. Prior to submitting your request, please note the requirements for signatures of representatives and documentation necessary to be submitted for deceased taxpayers reflected in the instructions on Page 2 of Form
    4506-T.
Another option is for Circular 230 tax professionals to register at IRS.gov to access account transcripts for estate and gift tax matters using the Transcript Delivery System (TDS). TDS can only be used for requests where the tax year is known; it will not assist in determining whether any gift tax returns have been filed.

Get a Copy of a Filed Form 709 Using Form 4506

Form 4506, Request for Copy of Tax Return, is used to request a copy of a specific previously filed tax return with all attachments. A $50.00 fee per tax return applies.
  • Complete the Form 4506 with the taxpayer’s current information. Please be specific with the years in which copies are requested.
  • Using the “Chart for all other transcripts” on Page 2 of Form 4506, mail your completed request to the appropriate IRS office. Prior to submitting your request, please note the requirements for signatures of representatives and documentation necessary to be submitted for deceased taxpayers reflected in the instructions on Page 2 of Form 4506.
  • Make your  check or money order  payable to the “United States Treasury”. Enter the SSN and "Form 4506 Request" on the check or money order.
  • Allow 75 calendar days for the IRS to process the request for a copy of a tax return.

If you have suggestions or comments (or suggested FAQs) for the Estate and Gift Tax website, please contact us: CONTACT ESTATE AND GIFT TAX.  We will not be able to respond to your email, but will consider it when making improvements or additions to this site.
source: https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Frequently-Asked-Questions-on-Gift-Taxes