Do I Really Need A Living Trust?

by BlogEstate Planning

Do I Really Need A Living Trust?

A geriatric social worker recently shared with us a conversation he had with an older woman who attends the senior program the social worker manages. The older woman, who I will refer to as Mrs. G, told the social worker that she attended a free seminar on living trusts after learning about the seminar from an advertisement in her local newspaper. Mrs. G told the social worker that the seminar discussed how living trusts help people avoid having their estates managed by a complicated and expensive legal process after they die. The social worker knew from previous conversations with Mrs. G that she did not want to burden her children in any way, including with her estate issues after she dies. Therefore, the social worker was not greatly surprised to learn that, shortly after attending the seminar, Mrs. G contacted the attorney who presented the seminar and paid the attorney to create a living trust for her.

When the social worker relayed Mrs. G’s story to me, he sounded concerned about whether Mrs. G. had made a good decision. Mrs. G told the social worker that she paid the attorney a lot of money to create the living trust and she believed the money was well-spent. The social worker explained to me that Mrs. G is of very modest means, owning a savings account worth $10,000 and a mobile home of nominal value. The social worker asked me whether someone like Mrs. G, with so few assets and minimal savings, truly benefits from having a living trust. Below is a summary of my response to the social worker regarding living trusts, generally, and, specifically, my thoughts on Mrs. G’s situation.

Living Trusts: A Way to Avoid Probate?

Living trusts are commonly marketed to the general public as a way to avoid having one’s estate managed in probate court after one dies. Probate is the legal process of transferring assets from a person who has died to the person, people, or organizations designated in the deceased person’s will or, if no will exists, to the deceased person’s heirs. The general rule is that probate is necessary when a person dies and the assets owned solely by the person total more than $100,000 or include real estate—there are exceptions to this rule that an attorney may address after reviewing an estate. The probate process can sometimes be costly and time-consuming, especially for larger estates. For a small estate, however, the probate process can be efficient.

The theory behind a living trust, sometimes referred to as a revocable trust, is that, if all of a person’s assets are owned by his or her living trust at the time of the person’s death, then the person’s estate will not need to be managed in probate court. This is because, as a general rule, courts do not oversee trust administration. Instead, the trustee of the living trust is charged with managing the trust. The person who creates the living trust may name himself or herself as trustee; often times, however, the person creating the trust names as trustee a close friend, family member, or institution, such as a bank. The person creating the trust can also name a successor trustee to manage the trust in the event the original trustee dies or becomes unable to act as trustee, such as because of mental incapacity. Additionally, a living trust is revocable at any time prior to the death or permanent mental incapacity of the person who created the trust; in other words, once the person who creates the trust dies or becomes permanently mentally incapacitated the trust is irrevocable. In short, if all of a person’s assets are titled or otherwise included in the living trust, that person’s estate can avoid the probate process entirely.

There are other ways to avoid probate, however, which may be more appropriate for certain individuals than creating a living trust. For example, in Illinois, if a person leaves personal assets valued at $100,000 or less, such estate can avoid the probate process with a Small Estate Affidavit. A Small Estate Affidavit is a short document that lists the total assets in the estate and names the person or people who are entitled, according to the Illinois Probate Act, to receive those assets. Again, a Small Estate Affidavit is an option in Illinois only for estates that do not include real estate and with assets that total $100,000 or less—in other words, modest estates.

Another way to avoid the probate process is for a person to purchase certain kinds of assets prior to his or her death that allow the person to name a death beneficiary or a joint tenant of the asset. For example, most certificates of deposit, savings accounts, stocks, brokerage accounts, and many bonds can be made “payable on death” to a designated beneficiary or beneficiaries. Additionally, if an account names two joint tenants and one of the joint tenants dies, generally, the remaining living joint tenant automatically becomes the 100% owner of the account.

In Mrs. G’s case, a living trust was not her only option for avoiding probate. Because of the modest size of her estate, Mrs. G could have relied on a Small Estate Affidavit to ensure proper distribution of her assets at her death. Alternatively, Mrs. G could have named her children as death beneficiaries on her savings account. Either or both of these options may have been less costly for Mrs. G (and her estate) compared to the cost of paying an attorney to create a living trust.

Living Trusts: A Way to Plan for Incapacity?

A living trust is an effective way for one to ensure his or her estate is administered according to his or her wishes in the event the person becomes mentally incapacitated. As previously mentioned, the person who creates the living trust can name a successor trustee to manage the trust in the event the original trustee dies or becomes unable to act as trustee. Thus, if the person who created the living trust named himself or herself as trustee and then subsequently becomes unable to act as trustee due to his or her own mental incapacity, the successor trustee is then responsible for administering the trust pursuant to the terms of the living trust.

Another, potentially less expensive, alternative to a living trust for the purpose of planning for mental incapacity is a durable power of attorney for property. An Illinois Power of Attorney for Property gives the agent named under the document the authority to manage the financial affairs of the person who created the document, referred to as the principal. Additionally, the principal of an Illinois Power of Attorney for Property can, if he or she wishes to, specifically state in the document that the agent may act only after a physician determines that the principal is mentally incapacitated. Most financial institutions located in Illinois will accept a properly executed Illinois Power of Attorney for Property; however, out-of-state institutions holding an asset of the principal may not be as willing to accept the Illinois Power of Attorney for Property.

In Mrs. G’s case, her savings account is held at a local bank in Illinois and her mobile home is also located in Illinois. Thus, Mrs. G could have executed an Illinois Power of Attorney for Property to allow, for example, one of her children to make financial decisions on her behalf if she becomes mentally incapacitated in the future.

Living Trusts: Who Really Benefits from a Living Trust?

A living trust may be most appropriate for a person who owns sophisticated assets of substantial value or for estates with assets that have a total value of at least $100,000 or which include real estate. For example, if a person owns equities, such as stocks, corporate bonds, mutual funds, or brokerage accounts, exceeding $100,000 in value and/or the person owns valuable real estate, then a living trust is a very effective tool for avoiding probate. Additionally, in the event of mental incapacity, the trustee of a living trust generally has an easier time exercising authority than an agent under an Illinois Power of Attorney for Property with regard to financial management of stocks, bonds, mutual funds, brokerage accounts, and assets held in national institutions. Specifically, financial institutions located (or with national headquarters) out-of-state may impose additional requirements for an agent under an Illinois Power of Attorney for Property, making the document difficult or impossible to use.

Thus, for individuals like Mrs. G, with a modest estate valued at $100,000 or less and without real estate, a living trust may not be necessary or the most economical legal planning option.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Digital Assets Can Raise Estate Planning Issues

by BlogEstate Planning

Digital Assets Can Raise Estate Planning Issues

More and more, we are conducting our business on the Internet, whether that’s online banking, shopping, uploading documents and files to the “cloud,” posting videos, or communicating with ‘long lost’ friends.

So, what happens to all of our accounts and files when we become incapacitated or pass away? Will our representatives have access to them? Where will they find our usernames and passwords? Who can take down our Facebook and LinkedIn pages, or would we prefer that they continue for posterity? And, if we’ve saved photos, videos and other files on the cloud, who should have access to them and how long should they stay out there?

These are questions almost everyone needs to think about today, and they often raise difficult security and legal issues. For example, if you become incapacitated and your daughter starts handling your finances online, is she doing so legally? Presumably you’ve given her your consent to do so, but the bank may not have a durable power of attorney on file with this authorization. As far as the bank knows, you’re still the person logging in and paying your bills or shifting your investments. Is this fraud on the bank? Does anyone care as long as your daughter is acting in your best interest? And what if you pass away and your child, rather than notifying the financial institutions, continues to pay bills online and make distributions to family members? This is clearly contrary to law, but it could be much more convenient than going through the probate process. Is it an instance of no harm, no foul?

States are beginning to grapple with these issues. A few states have enacted laws, giving executors access to online accounts. In addition, every Internet provider has its own rules about access to user accounts, and generally users have agreed to these rules when they first enrolled, whether they actually read the service agreement or not. In April 2013, Google introduced the concept of an Inactive Account Manager who Google users can name to receive notice when a Google user has not accessed his/her account for a long period of time. The Inactive Account Manager has access to Google accounts designated by the user and can take whatever action is necessary to access them or shut them down.

The legalities aside, here are some steps we can all take to better manage our digital assets:

  • Inventory your digital estate. Make a list of all of your online accounts, including e-mail, financial accounts, social networking sites and anywhere else you conduct business online. Include your username and password for each account. Also, include access information for your digital devices, including smartphones and computers.
  • Store the list in a safe place. There are a number of options for where you and your representatives can store the list, each with its own problems. If you have the list on paper, someone who you don’t trust might discover it and gain access. You can keep it in a safe deposit box but does your representative know where the box key is located? If you keep the list online, make sure you do so securely.
  • Give access to your personal representatives. Once you have your inventory, you will need to provide it to the people who will step in if you become incapacitated or pass away, or let them know how to find it when and if they need to do so. Make sure that they save the information as securely as possible.
  • Authorizing language. Make sure the agent under your durable power of attorney and the personal representative named in your will have authority to deal with your online accounts.
  • Update the inventory. As you open new accounts and services, purchase new devices, and change usernames and passwords, you will have to update your list so that it remains current.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Family Caregiving When The Adult Children Are Long Distance

by BlogElder Law

Family Caregiving When The Adult Children Live Long Distance

When families live far away from one another, the holidays may be the only opportunity that long-distance caregivers and family members have to personally observe older relatives. Decline can happen quickly. Family members who haven’t seen their aging loved for a while may be shocked at what they see: a formerly healthy father looking frail, or a mom whose home was once well-kept now in disarray.

For those who have relied on regular telephone conversations and assessment by other closer-living relatives to gauge an older loved one’s well-being, the holiday visit can be revealing. Absence – even for a short period – often allows us to observe a situation through new eyes…and the following changes may indicate the need to take action to ensure your aging relative’s safety and good health.

What to Look for

Weight Fluctuations

One of the most obvious signs of ill health, either physical or mental, is weight loss. The cause could be as serious as cancer, dementia, heart failure or depression. Or, it could be related to a lack of energy to cook for a loved one or just themselves, the inability to get fresh groceries, the waning ability to read the fine print on food labels, or difficulty cleaning utensils and cookware. Certain medications and aging in general can also change the way food tastes. If weight loss is evident, talk to your loved one about your concern and schedule a doctor’s visit to address the issue.

Movement

Pay close attention to the way your loved one moves, and, in particular, how they walk. A reluctance to walk or obvious pain during movement can be a sign of joint or muscle problems or more serious afflictions. If they are unsteady on their feet, they may be at risk of falling. Schedule a doctor’s visit and consider obtaining a personal emergency response system.

Emotional Health

Beware, too, of obvious and subtle changes in your loved one’s emotional well-being. You can’t always gauge someone’s spirits over the telephone, even if you speak daily. Take note for signs of depression, including withdrawal from activities with others, sleep patterns, loss of interest in hobbies, and lack of basic home maintenance or personal hygiene. The latter can be an indicator not only of depression, but also of dementia or other physical ailments including dehydration, a serious condition sometimes overlooked in elders in the winter months. If you notice sudden “odd behavior” with your loved one, be sure to seek medical attention.

Attention must also be paid to surroundings. For instance, your loved one has always been a stickler for neatness or for paying bills promptly. If you discover excess or unsafe clutter and mail that has piled up, a problem may exist. Offer to go through mail and old papers.

Everyday Concerns

Also, keep an eye out for less obvious indications for concern. Scorched cookware, for example, could be a sign that your loved one forgets if the stove is on. An overflowing hamper could mean he or she doesn’t have the strength and/or desire to do laundry. Look out for safety hazards such as steep steps, loose rugs, missing handrails or poor lighting. Check prescriptions and medication bottles for expiration dates, and make note of all prescriptions your loved one takes. Place that information in your personal files, as well as their wallet, in case of an emergency. If your loved one is driving, look for unexplained dents or scratches on the car, and maybe take a short drive with them to see how they handle the road.

Steps to Take

Initial Conversation

First, have a heart-to-heart conversation with your loved one about their present circumstances, concerns, and the measures they’d like taken to make things better. Introduce the idea of a health assessment appointment with their primary health care provider. Would they feel more at ease if a home health aide visited a couple times a week? Maybe they have legal questions and would greatly benefit from an appointment with an elder law attorney. Or, they may need help with housecleaning or bill paying.

Identify Important Information and Resources

While you may want to keep things light during the holiday season, do take this opportunity to collect and update all necessary information now to avoid frustration and confusion in the event of a crisis down the road.

Medical

  • Information on all medical conditions.
  • A list of medications, including the name, dose, and name of the prescriber.
  • Names and phone numbers of all health care providers.
  • Name and phone number of their pharmacy.
  • Name and contact information for local contact (i.e. care manager)
  • Register in the Premise Alert Program with the local police department.

Insurance

  • A list of all insurance policies, the carriers, and the account numbers.

Utilities

  • Company names and phone numbers for all utilities, including electric, phone, cable, water, and Internet.

Financial

  • A list of all assets and debts (include dollar values).
  • Monthly income.
  • Monthly expenses.
  • A statement of net worth.
  • Information on bank accounts, other financial holdings, and credit cards Real Estate.
  • Safety Deposit Box (location, where is the key) Legal
  • Relevant legal documents your loved one has (i.e. wills, advance directives, trusts, powers of attorney, etc).
  • Location of important documents (i.e. birth certificates, deed to home).   Social Security numbers.

Make All Necessary Appointments

Your loved one may need assistance making medical appointments. Finding the right doctor, collecting all relevant information, and assessing medical insurance and other costs can be confusing and frustrating. If your relative is open to having an initial conversation about health concerns, an offer of help from you may go a long way in alleviating some of this stress.

Your older relative may also need to make significant legal arrangements for their property, finances, and health. If they are willing, they may need your help to schedule an appointment with an elder law attorney. This may include drafting of a will or trust, a living will, and powers of attorney. These documents and others may help your elderly relative plan for the future and ensure their continuing health and protection.

This information is not to be considered legal advice. If you have questions about it, please contact us.

 

Legal Planning For Living With A Chronic Medical Condition

by BlogElder Law

Legal Planning For Living With A Chronic Medical Condition

In 1900, most people died younger from communicable diseases and after relatively short illnesses. Today, we are more likely to die older from one or more chronic conditions and after an extended period of illness. The decisions involved with planning for disability associated with chronic conditions can be difficult to make. Recognizing that developing a plan is the goal and that plans can (and should) be revised over time may help you assume a proactive role when it comes to legal matters. A summary of the basics involved in planning are outlined below:

Financial Power of Attorney & Guardianship

A financial power of attorney allows you to designate a person to make your financial decisions and handle your financial affairs if you are unable to do so yourself. This document needs to be put in place early, before you are unable to make decisions.

If you have no agent under a financial power of attorney, a family member may petition the courts to appoint a guardian of your estate to manage your money and property. However, guardianships can be expensive to administer and in many cases having powers of attorney in place can avoid the guardianship process.

Health Care Power of Attorney & Advance Directives

A health care power of attorney allows you to designate a person to make your health care decisions, including residential placement and home care decisions, if you are unable to do so yourself. You may appoint back-up individuals to act if the person you have designated as your primary agent is unable or unwilling to act to make your health care decisions.

Advance Directives such as a Living Will or Physician’s Order for Live Sustaining Treatment (POLST) allow you to communicate in advance your preferences for end of life medical care, such as indicating you do not want to be fed by tube or be resuscitated if your heart stops. Your agents under your health care power of attorney and your medical providers have a duty to honor your wishes expressed in your Advance Directives.

A family member may need to ask the court for the appointment of a guardian to make health and case decisions if there is no health care agent in place for you or if you are cognitively impaired and insisting on making health care decisions for yourself which are inappropriate and dangerous, such as refusing necessary home care.

Estate Planning

Estate planning documents provide for the distribution of your assets at your death, such as a Will. A Trust provides not only for distribution of your assets at your death, but management of your assets while you are alive. If your estate is of a sufficient size to warrant the expense of establishing and administering a Trust,

a Trust can be an effective tool for planning for potential disability as you can name trusted individuals or professionals to step in to manage your Trust in the event of your disability.

Long-Term Care Planning

Chronic conditions are likely to progress and result in the need for some type of long-term care. Long term care means care that is generally limited to assistance with activities of daily living for the person with the condition, such as assistance with bathing, dressing, transportation, meal preparation, etc. As long term care is not medical care, traditional health insurance and Medicare does not cover it. You should consult with your financial planner to determine whether your income and assets are sufficient to cover your expected necessary long term care. If income and assets are insufficient, then you should consult with an elder law attorney in order to plan to protect assets and qualify for Medicaid covered long term care services.

In planning for long term care, especially in making financial projections, it can be helpful to consult with a Care Manager. A Care Manager comprehensively evaluates your physical health and wellness, memory and mental status, functional abilities, informal and formal social support networks, financial resources and living environment and makes recommendations for care based on this assessment together with an understanding of your wishes.

Hire an Elder Law Attorney

Hiring an elder law attorney early in the disease process can save you money and time down the road. An Elder Law Attorney has experience in issues affecting persons with chronic conditions and their families, whether dementia, Parkinson’s or other degenerative conditions. A good elder law attorney understands the medical and practical aspects of planning for chronic disease and disability, the changing array of long-term care resources, and helps clients meet their goals of freedom, control and social involvement. He or she can craft an estate plan to protect your assets while qualifying you for government benefits. The National Elder Law Foundation and National Academy of Elder Law Attorneys can help you locate a qualified, experienced attorney.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Important Information To Know And Keep Current

by BlogElder Law

Important Information To Know And Keep Current

Medical

  • Information on all medical conditions and surgeries in the last five years.
  • A list of medications, including the name, dose, and name of the prescriber.
  • Names, contact information, and patient portal login and passwords for all health care providers (physicians, advanced practice nurses, hospitals, etc.)
  • Name, phone number, and login information and password for pharmacy.
  • Name and contact information for local professionals (i.e., care manager, therapist, etc.)
  • Name, contact information, and the cards for all health insurance and medication plans.

Insurance

  • A list of insurance policies, the carriers, the account / policy numbers, and names of beneficiaries.

Utilities

  • Names, account number, and contact information for all utilities (electric, phone, cable, water, internet, etc.).

Documents

  • Safe Deposit Box (Location? Where is the key? Who has access?)
  • Legal documents (wills, advance directives, trusts, powers of attorney, and all amendments, exhibits, attachments, and schedules, etc.).
  • Location of important documents (i.e., birth certificates, naturalization papers, marriage certificates, death certificates, deed to home, mortgage).
  • Social Security Cards
  • Health insurance cards (Medicare, prescription discount, Medicare, supplemental, etc.)
  • Driver’s license or state ID

Financial

  • A list of all assets and debts (include dollar values).
  • Monthly income.
  • Monthly expenses.
  • A statement of net worth.
  • Information on bank accounts, other financial holdings, and credit cards

This information is not to be considered legal advice. If you have questions about it, please contact us.

Resources

How To Pay For Skilled Care

by BlogElder Law

How To Pay For Skilled Care

One of the things that concerns people most about nursing home care is how to pay for that care. There are basically three ways that you can pay the cost of a nursing home:

  1. Long Term Care Insurance – If you are fortunate enough to have this type of coverage, it may go a long way toward paying the cost of the nursing home. Unfortunately, long term care insurance has only started to become popular in the last couple of years and most people facing a nursing home stay do not have this type of coverage.
  2. Pay with Your Own Funds – This is the method many people choose at first. Quite simply, it means paying for the cost of a nursing home out of your own pocket. Unfortunately, with nursing home bills averaging around $7,000 or more per month, few people can afford a long term stay.
  3. Medicaid and Medicare – These are primarily federally-funded and state-administered programs that pay for the cost of the nursing home if certain eligibility requirements are met.

There is a lot more to be said about long term care insurance and paying with your own funds, but we will concentrate on Medicaid and Medicare for purposes of this blog.

What about Medicare?

There is a great deal of confusion about Medicare and Medicaid. Medicare is the federally-funded health insurance program primarily designed for older individuals (i.e., those over age 65). There is a limited long-term care component to Medicare. In general, if you have had a hospital stay (not observation status) of at least 3 consecutive days, not counting the day of discharge, and then you need to go into a skilled nursing facility within the next 30 days (for rehabilitation or skilled nursing care), then Medicare may pay for a short period of time.

Typically, in that circumstance, Medicare will pay the full cost of the nursing home stay for the first 20 days and may continue to pay the cost of the nursing home stay for the next 80 days, but with a deductible that is over $100 per day. Often times your Medicare supplement insurance policy will pay the cost of that deductible. So in the best case scenario, Medicare may pay up to 100 days.

Even if Medicare does cover the 100 day period, what then? What happens after the 100 days of coverage have been used? At that point, you are back to one of the other alternatives…long term care insurance, paying the bills with your own assets, or Medicaid.

What is Medicaid?

Medicaid is a benefits program that is jointly funded by the federal and state government. The program is administered by each state at the county level. So some aspects of the Medicaid rules are based on federal law and others are based on state law.

One of the primary benefits of Medicaid is that, unlike Medicare which only pays for skilled nursing, the Medicaid program is more flexible and will pay for long term custodial care. This means that Medicaid will pay for an individual’s long term stay in a nursing home. However, unlike Medicare, Medicaid imposes financial requirements where the individual must have limited resources in order to qualify for benefits.

Do All Illinois Nursing Homes Accept Medicaid?

No, nursing homes in Illinois are not required to accept Medicaid, and so some nursing homes are private pay only. You will need to question this up front. Also, some nursing homes that do accept Medicaid will still require that there be sufficient funds to privately pay a certain number of months before they will allow a person admission to their facility.

Some nursing homes that accept Medicaid have a “distinct part” system. This means that certain beds are private pay beds and certain beds are Medicaid beds. A resident may start in a private pay bed and then move to a Medicaid bed once the private funds are depleted. If this is the case, the family advocate will need to watch and make sure the move is done in a timely manner because Medicaid will not pay the nursing home for a private pay bed, and if the private funds are depleted, there will continue to be a private debt to the nursing home.

Why Plan for Medicaid?

As life expectancies and long term care costs continue to rise, the challenge quickly becomes how to pay for these services. Many people cannot afford to pay $7,000 per month or more for the cost of a nursing home, and those who can pay for a while may find their life savings wiped out in a matter of months, rather than years. Fortunately, the Medicaid Program may be there to help. But the eligibility to receive Medicaid benefits requires that a person pass certain income and asset tests. The reason for Medicaid planning is simple…a person plans so that if he or she needs it, he or she will be eligible to receive Medicaid benefits.

Do You Need An Attorney?

The Medicaid rules are complicated and often misunderstood. Many times people receive incorrect information from their neighbors, friends, financial advisors, or even from the nursing home staff. In addition, with the State budget constraints, Medicaid applications are increasingly being scrutinized by government caseworkers. For these reasons, it is important to consult with an attorney who is familiar with the Medicaid rules and who can properly advise you of the rules, as well as any exceptions or Medicaid provisions that may apply in your situation to help you qualify.

This information is not to be considered legal advice. If you have questions about it, please contact us.

A Guide To Choosing An Elder Law Attorney

by BlogElder Law

Choosing An Elder Law Attorney

The process of finding and choosing an elder law attorney begins by identifying that you actually need one. The question is: Why would you need the services of this specialized attorney?

Here are some questions to ask yourself:

  • Do you or a loved one have questions about paying for long-term care?
  • Are your wills and powers of attorney up to date and in compliance with current law?
  • Do you need advice on what kind of care your loved one needs and what their rights are?
  • Are you looking to preserve assets for the duration of your illness?
  • Are you concerned about assets being left for a spouse’s care in the future?
  • Have you or a loved one been diagnosed with dementia, Parkinson’s Disease, ALS or any other chronic medical condition which will, most likely, require long-term care?
  • Do you need to pursue guardianship on behalf of a loved one?
  • Do you need information on Medicaid planning?
  • Do you or a loved one have a disability that you need to legally plan for?

If you can answer yes to any of these questions, you may need an elder law attorney.

Once you have identified that you need an elder law attorney, the next step is finding one. Law are different for each state. Attorneys must be licensed by the state. Therefore, it is important to find an attorney licensed in the state where you, or your loved one whose planning is concerned, lives (or maybe in the state where their property is located depending on the issues).

When Evaluating an Elder Law Attorney, Here are Some Good Questions to Ask:

Are they a CELA or a Certified Elder Law Attorney?

This special certification is the “gold standard” for elder law practitioners. Selecting an attorney who has been certified as a CELA means that you are choosing an attorney who has gone above and beyond to prove their commitment to older adults / people who have a disability.

—Attorneys Janna Dutton, Kathryn Casey, Helen Mesoloras, and Melissa Kallio are Certified Elder Law Attorneys.

Do they practice more than just estate planning?

An elder law attorney is not the same as an estate planning attorney! Although most elder law attorneys incorporate estate planning into their practice, elder law planning is different from estate planning.

Elder law planning seeks to preserve your money, income and assets to be used for your benefit and care while you are still alive. Estate planning focuses on the distribution of your assets after you die. Elder law attorneys have a deep understanding of the regulations for public benefits, the rights of older adults / people who have a disability, and the unique needs of families caring for an aging loved one. Make sure the attorney you choose practices more than just estate planning!

This information is not to be considered legal advice. If you have questions about it, please contact us.

4 Cs of Elder Law Ethics

by BlogElder Law

Understanding The 4 Cs Of Elder Law Ethics

Shouldn’t you be included? After all, you might be very involved in helping him or her with important matters. Perhaps you even arranged for this appointment.

There are several reasons why lawyers need to meet with your family member or friend alone for at least part of the case evaluation process, so please don’t be alarmed or offended. Family involvement is very important, but try to understand the way legal services are provided to elder or disabled clients.

It may help first to understand the “Four Cs” of elder law ethics that lawyers are required to follow. We are happy to discuss these ethical guidelines or any other aspect of our legal services. Above all, we seek to promote the dignity, self- determination, and quality of life of your loved one.

Client Identification: First, all lawyers have an ethical obligation to make it very clear who their client is. The client is the person whose interests are most at stake in the legal planning or legal problem. The client is the one — the only one – to whom the lawyer has professional duties of competence, diligence, loyalty, and confidentiality. This is especially important in elder law, because family members may be very involved in the legal concerns of the older person, and may even have a stake in the outcome.

It is possible, in some circumstances, for more than one family member to be clients of the same lawyer. This is common with married couples. However, in most of our cases, we will identify the elder or disabled person as our client. We will do this regardless of who is paying the bill.

Conflicts of Interest: Second, lawyers have an ethical obligation to avoid conflicts of interest. This means that, in most situations, a lawyer may only represent one individual. For example, when legal planning involves property, such as a family home in which several people have an interest, these interest are actually or potentially conflicting. Sometimes, joint representation is possible, even with potential conflicts of interests, but it is more likely that we will be representing only the older person whose interests are at stake. We find that we do the best job for the older person by representing only him or her. This is especially true when the older person wants to discuss a power of attorney, a will, or planning for long-term care.

Confidentiality: Third, lawyers have an obligation to keep information and communication between our client and us confidential. That means that we cannot share client information with other family members without the client’s approval. Some clients want all information shared and family members involved in discussion. Some merely want family members to be given general updates. Some want complete confidentiality. It differs from person to person.

In all cases, we strive to keep our clients – and whomever they choose to involve – fully informed of the issues, options, consequences, and costs relevant to their concerns, and to be responsive to their goals and objectives.

Competency: Fourth, lawyers have special ethical responsibilities in working with clients whose capacity for making decisions may be diminished. Lawyers must treat the impaired person with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants.

“But Mom’s not going to be able to explain (or understand, or remember) everything!” you might say. We find that most older people who come here are able to tell us what the problem is and how we can help. Sometimes, we’ll need to ask relatives for details, such as addresses or dates or phone numbers, but even people in the early stages of Alzheimer’s disease can usually communicate well enough to give us direction.

Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and what it is they want, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer all the questions, it makes it difficult for us to determine our client’s level of understanding.

There will be times when we conclude that a client does not have the legal capacity to complete a requested document, such as a power of attorney or a will. If that happens, we will not be able to assist with that particular task. We may, however, be able to explore other options.

If a client is unable to make decisions due to diminished capacity and is at risk of serious physical, financial, or other harm, the ethics rules require us to consider actions to protect that client. This may include consulting with others to assess the client’s situation or taking steps to preserve a legal or personal interest of the client. As we decide what steps to take, we will be guided by our client’s wishes, values, and best interest, and we will do our best to intrude as little as possible on his or her right to make decisions.

The Ethical Rules Make Practical Sense, Too.

Being clear about whom we represent, meeting alone with the client, respecting confidentiality, and assessing client capacity, protect the family, as well as the client. For example, you’ve probably heard of a will or power of attorney being challenged. It is not uncommon to find cases claiming that family members or others had “undue influence” over the older person, and that they benefited unjustly from decisions that were made. Family and friends who maintain some distance from the legal counseling and document signings are less likely to be accused of undue influence.

We don’t want our clients’ choices, and the documents they sign, to be undone one day in the future because we allowed family members to be too involved in the matter. That’s probably the kind court case you, too, would rather avoid.

Source: American Bar Association

This information is not to be considered legal advice. If you have questions about it, please contact us.

Dementia Terminology

by BlogElder Law

Dementia Terminology

“Communication breakdown” in Alzheimer’s disease and other causes of dementia are consistently listed among the stressors for caregivers. Here is a list of some of the terminology used in describing the affects of the disease, some of which limits the person who has dementia.

Affect: the outward manifestation of a person’s feelings, usually referring to facial expression and posture.

Aggression: A forceful, attacking action; may be physical or verbal and may be directed at people or at objects.

Agnosia: The inability, in the absence of any direct impairment of the sensory organs, to recognize familiar stimuli experienced by means of senses. The inability may be related to any of the senses: sight, hearing, touch, smell, and taste. Visual, auditory, and tactile agnosias, however, are most common.

Alexia: A disturbance in the ability to read. Primary ALEXIA is related to visual AGNOSIA, whereas secondary ALEXIA is due to deficits in language. Many people who have dementia can read aloud fluently but have no comprehension of the material they are reading.

Anomia: The inability to recall the correct word or phrase to express an intended thought or to identify a familiar object accurately.

Aphasia: A deficit or loss of the ability to express oneself by means of speech or the written word in the absence of any muscular or intellectual impairment.

Apraxia: The inability to carry out skilled and purposeful movements in the absence of any physical impairment or paralysis.

Catastrophic Reaction: An excessively anxious, fearful, or despairing reaction to frustration resulting from an individual’s inability to perform a task or understand a situation.

Circumlocution: “Talking around the issue,” a characteristic of speech common to persons suffering from ANOMIA. In their effort to express a thought or identify an object, they describe it by its use, location, or other characteristics.

Cognitive Functions: The intellectual process, by which one becomes aware of, perceives, expresses, and understands ideas. These functions involve all aspects of perception, memory, reasoning, and language.

Confusion: Bewilderment and lack of orderly thought and reactions based on fact. Also, the inability to act and choose decisively.

Cortex: The outer layer of a body organ. The brain’s outer layer is called the cerebral cortex. It is most highly developed in humans and is the seat of higher intellectual functions. It is the part of the brain that is primarily affected by the process of the Alzheimer’s disease.

Delirium: An acute episode of confusion and disorientation.

Delusion: A persistent but untrue belief or perception that is held by the person even though it is illogical and not real.

Disorientation: The lack of accurate knowledge concerning time, place, one’s identity, and/or the identity of familiar others. The lack of knowledge regarding the purpose of events may also be included in this definition.

Echolalia: Automatic and often persistent repetition of words and/or expressions just heard by the individual; acting as an echo.

Hallucinations: Sensory perceptions that are not the result of external stimuli. They may affect any of the senses and they are very real to the affected person but to no one else. They are frequently confused with illusions.

Illusions: Misperceptions that result in a mistaken impression about things. Everyone experiences illusions at one time or another, but they occur with more frequency in people with impaired perceptual abilities.

Inertia: The inability to begin a task or initiate a movement in the absence of a concrete stimulus.

Motor Planning: The ability to conceptualize, organize, and carry out a particular series of movements toward a specific end.

Paraphasis: The use of an inappropriate word to express a thought or identify an object or person. Although the person’s intention is correct, the wrong word comes out.

Perception: The ability to interpret accurately and correctly information received through the senses.

Perseveration: The persistent repetition of an action associated with the inability to stop unless an outside force intervenes.

Prasis: The ability to carry out skilled, organized movements.

Receptive Aphasia: The inability, in the absence of sensory or intellectual impairment, to understand spoken or written language.

Spatial Orientation: The ability to know where one is in space and relative to objects in one’s environment. Also the ability to perceive how objects relate to one another, either in front, behind, on, under, to the left, or to the right. It is associated with directionality, which is an appreciation of movement toward, away from, to the left, to the right, upward, and downward.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Choosing Your Fiduciaries

by BlogEstate Planning

Choosing Your Fiduciaries

In planning your estate, among the most important decisions you will make will be your choice of those persons who will be your fiduciaries – the persons you will entrust with your financial well-being and personal health decisions. Those fiduciary positions are your agents under power of attorney for property and power of attorney for health care, trustees, and executors. In making these choices of persons to act as your fiduciaries, keep in mind what will be expected of them and what authority they will hold.

Power of Attorney for Property

A Power of Attorney for Property is a document that allows you to delegate authority to another person, known as your agent, to act on your behalf. The agent may be authorized to act immediately, or only when you are no longer able to act for yourself (known as a “springing” power of attorney). Examples of the types of authorities you will delegate to an agent under power of attorney include paying your bills, managing your investments, and buying and selling real estate. A Power of Attorney for Property can be limited to one decision, or it can be so broadly written that the agent can do almost anything on your behalf. The authority you give is dependent upon the document’s language. When you are deciding on an agent during the estate planning process you are likely going to grant that agent broad powers as it is not possible to foresee what you will need the agent to do for you in the future.

Powers of attorney are a wonderful tool in the hands of a trustworthy person. Because it comes with tremendous authority, it can be a dangerous tool in the hands of the wrong person.

Who is the wrong person?

  • Someone with a history of personal financial problems of their own.
  • Someone with a mental illness or substance abuse issues.
  • Someone who is unable to manage their own financial affairs.
  • Someone who has no knowledge of investments or finances.
  • Someone who has personal conflicts with your other family members.

Who is the right person?

  • Someone whom you trust without hesitation.
  • Someone who manages their own finances well.
  • Someone who understands investment and finance.
  • Someone who has no history of financial problems and is not in debt.
  • Someone who has the time and willingness to step in and help you if necessary; and
  • Someone who does not have conflicts with your other family members.

It is a mistake to name a child just because he or she is the first born, or to name a child because you are concerned about hurting their feelings. Carefully consider a child’s strengths and weaknesses, and potential for misusing or neglecting their job as your financial agent. It sometimes makes sense to name a person other than a child.

Power of Attorney for Health Care

A Power of Attorney for Health Care is a document that allows you to delegate authority to another person, known as your agent, to make broad health care decisions for you if you become unable to make those decisions for yourself. The agent has authority to decide on all health and care decisions, i.e., withdrawal of life support, treatment decisions, placement in residential care facilities, and home care arrangements.

Who is the right person to choose as your health care agent?

  • Someone who is willing and able to spend time advocating for your care.
  • Someone who is assertive and willing to research medical options and discuss them with your physicians.
  • Someone who understands your end-of-life preferences; and
  • Someone who is able to make the difficult decisions you entrust to them, consistent with your wishes.

Who is the wrong person to choose as your health care agent?

  • Someone who does not have the time to spend advocating for you.
  • Someone who is not interested in medical issues or not able to be assertive with the medical system.
  • Someone who may have conflicts, such as a dependent child who lives with you; and
  • Someone who does not understand your end-of-life preferences or who is unable to implement your end of life wishes.

Executor

Your executor is the person you select to have the legal responsibility to settle your estate when you die. An executor usually is only necessary if you do not have a trust in place. He or she will:

  • Coordinate probate matters with your family attorney.
  • Take custody of and value all your estate assets.
  • Pay all creditors’ claims.
  • Close your bank and investment accounts and transfer them to newly created estate accounts; and
  • Distribute your assets to the beneficiaries you’ve chosen in your Will.

Trustee

If a revocable living trust is part of your estate plan, you will need to choose a successor trustee to step in and act if you become unable to act. Your trustee is someone you choose to be legally responsible for managing, investing and distributing your trust assets in accordance with your wishes, and for acting in the best interests of your beneficiaries. His or her responsibilities include:

  • Filing income tax returns of the trust
  • Trust accounting and administration
  • Investment management trust assets
  • Trust distributions to beneficiaries in accordance with the trust terms
  • Regular communication with and reporting to all of your trust beneficiaries
  • Coordinating trust distributions with public assistance payments to a special needs beneficiary

If none of your close friends or family members are capable, you should consider enlisting the services of a professional fiduciary, such as a bank trust or trust company. It is important not to name a person who has conflicts with any of your beneficiaries.

Having the right persons in place to handle your financial and health care decisions for you in the event you become unable to do it for yourself is critical. Give adequate consideration to your choice of agents, trustees and executors.

This information is not to be construed as legal advice. If you have questions about it, please contact us.