USA Law and Practice Contributed by: Diana Zeydel, Marc Selden, Benjamin Babcock and Brian Smith, Greenberg Traurig, LLP
pacity, generally without the need for ongoing judicial supervision. 8.3 Planning for Incapacity In the US, planning for incapacity is primarily accom - plished through advance directives, including durable powers of attorney for financial matters, health care proxies, living wills and revocable trusts. Revoca - ble trusts are frequently used as part of incapacity planning because a successor trustee may assume responsibility for trust assets upon the settlor’s inca - pacity without the need for court appointment. These planning mechanisms are widely used because they promote continuity of decision-making, preserve privacy, reduce administrative burdens, and may avoid the need for a court-appointed guardian or conserva - tor. 8.4 Elder Law Financial Wellness Programmes With Americans living longer, greater emphasis is being placed on financial wellness programmes designed to help individuals prepare for longer retirement periods and associated health care needs. Retirement planning involves the use of tax-advan - taged savings vehicles, including employer-sponsored retirement plans, traditional and Roth individual retire - ment accounts (IRAs) and health savings accounts (HSAs). Financial planning incorporates sophisticated fore - casting tools and retirement income analyses to evalu - ate expected expenses, projected investment returns, inflation, longevity risk and tax considerations. An important objective of financial wellness planning is to prepare for the transition from employment income to retirement income while maintaining financial inde - pendence and flexibility. Planning includes establish - ing emergency reserves, preserving adequate liquidity, and developing strategies to address potential health
continue working beyond traditional retirement age or transition gradually into retirement. Comprehensive ageing-related planning may include long-term care funding strategies and insurance eval - uations, housing considerations, incapacity planning, and co-ordination with community-based support services. 9. Planning for Non-Traditional Families 9.1 Children In the US, children born out of wedlock, adopted chil - dren, surrogate children and posthumously conceived children may inherit and be included in a class of ben - eficiaries. The extent to which such individuals are recognised as beneficiaries or heirs is governed by state law. The focus is on legal parentage as opposed to circumstances of birth. There is no national stand - ard. If born within a marriage, children are recognised as descendants of both their biological mother and father. If born out of wedlock, a child is considered a descendant only of their biological mother, unless paternity is also established. Given that adoption gen - erally requires the parental rights of biological parents to be terminated, subject to state-specific exceptions like step-parent adoption, adopted children are treat - ed as descendants of their adoptive parents, and not of their biological parents. Posthumously conceived children may be considered descendants for inheritance purposes. The extent of such inclusion varies by state. Additional considera - tions include whether the decedent consented to the posthumous conception and acknowledged parent - age, the language of any testamentary documents, and timing. Surrogacy is generally permitted throughout the US, but is not uniformly permissible, and laws vary sig - nificantly by state. The more common arrangement, gestational surrogacy, where the surrogate is generally not genetically related to the child, typically relies on courts recognising the intended parents as the legal parents. Traditional surrogacy, where the surrogate is
care and long-term care costs. Flexible Retirement Options
Longer life expectancies and an ageing workforce have contributed to increased interest in flexible retirement arrangements. Many individuals elect to
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