Downs Law Firm, P.C.
It was reported on the news recently that some of Aretha Franklin’s family members have found what they believe to be her will. It was handwritten, stained, and crumpled up in a couch. The courts may or may not choose to honor it, depending on whether or not they are able to verify its authenticity.
These documents could save money but can lay estate planning traps.
While most of us have heard of a power of attorney, many have misconceptions about them.
While there are differing reasons for this, ranging from drug use or inability to care for the child, various legal issues arise when grandparents are the primary caretakers.
When you have finally decided to move from home to a senior retirement community that has levels of care—or when moving to a personal care/assisted living community—you and your family might not be in the mood to read legal agreements.
No matter how smart you are, you can still become a victim of elder abuse as you age. Who you trust to help you can have devastating consequences if you don’t choose wisely. Mary Weiss has endured the violent death of her son, four strokes and a heart attack. Now she is facing the loss of her home and retirement savings, because of suspected financial elder abuse, according to Fox 9 in “Woman, who helped change research protocols at U of M, allegedly loses savings to caregiver.” The person she depended on throughout it all, is the one who is suspected of taking advantage of her trusting nature. She says she was financially ruined and her nest egg of $150,000 is gone. Debt from credit cards and loans taken out in her name without her consent is mounting. Weiss gained international attention for her battle with the University of Minnesota researchers who ran a research study of a psychiatric drug. Her son took his own life, while enrolled in the study. Because of her fight, the University made a number of changes to its research programs. The man she believes has ripped her off stood by her during that battle, speaking to reporters on her behalf. However, now he has been charged with one count of theft by swindle by the Washington County Attorney, following an investigation by the Cottage Grove Police Department. Howard lived with Weiss, although they were not romantically involved, for 10 years and had become her caregiver. She had suffered a series of strokes and gave him power of attorney over her financial matters. Weiss knew that Howard had a record, including a theft by swindle conviction, but she never thought he would do something bad to her. It was Weiss’ niece who discovered the problem this past spring, when she was going through a year’s worth of bank statements. ATM withdrawals, lottery ticket purchases, loans and credit cards were all done in her name. Washington County Human Services did a separate investigation and notified Weiss that an allegation of financial exploitation had been substantiated. Howard denies taking anything without Weiss’ consent. Weiss is currently living in a nursing home and is recovering from a fall. She said that she would like to return to her townhome but is not sure she will be able to afford to do that. She wants others to understand that this can happen to anyone, even with full control of their senses and no dementia. Reference: Fox 9 (Oct. 22, 2018) “Woman, who helped change research protocols at U of M, allegedly loses savings to caregiver”
Your work isn’t done just because you have a will. There are many myths floating around about wills, trusts and estate planning. Those myths can easily confuse people who haven’t taken the time to bust them, before getting on to the real work … taking care of the family, according to the Cleveland Jewish News in “Estate planning myths common, but debunkable.” One common myth is that a trust is completely creditor protected. While there are some trusts that achieve this goal, there are many that don’t. It is easier to provide that to your beneficiaries that to yourself. Another myth is that once an estate plan is completed, there’s no need to revisit or make changes. We look at the planning you put in place as essentially an ongoing rough draft. Perhaps the biggest myth around estate plans is that they are only needed by wealthy people. Actually, everyone needs a will. A property power of attorney can save your loved ones thousands of dollars and massive aggravation. People chat with their friends and neighbors and pick up snippets of information, which is usually incorrect. As with any kind of story, once a piece of information has moved through a few different people, it becomes confusing, even if it started out accurate. The value of such “Street lawyers” is usually what you pay for it. Unless it comes from an estate planning attorney, don’t get any legal advice at a neighborhood or family gathering. The results can be disastrous. If you think having a trust alone is enough to prevent your heirs from having to pay any taxes, your kids will be in for a big and expensive mistake. If you don’t set up guardianship for your minor children, then the court will appoint a guardian. It’s entirely possible that it may be a person you would never have wanted to raise your children. If a separate financial trustee is not named, there won’t be any checks and balances on how the money left for your children is spent. If you don’t have an estate plan in place, and especially if your family includes minor children, make an appointment to speak with an estate planning attorney who can advise you on an estate plan that fits your unique circumstances. Reference: Cleveland Jewish News (Sep. 20, 2018) “Estate planning myths common, but debunkable”
If you are thinking of an immediate power of attorney, take your time and make the decision carefully. When you create a power of attorney, the authority granted in that document can be immediately effective, or alternatively can be activated only by documented proof that you are incapable of acting. Everything in life has its advantages and disadvantages. The immediate power of attorney is great because it is very easy to use. It can be not so great because it is equally easy to misuse. However, that requires some very careful thought before making the decision, according to the Glen Rose Reporter in “Should you add hot powers to your power of attorney?” The “hot” powers are well-named since they give a financial power of attorney considerable power. It is a lot of leeway for an agent to be given during one’s lifetime. This is because it allows the agent to create, amend, revoke or terminate a trust during the principal’s lifetime. The agent may also be given the power to make gifts, to themselves or others> They can also include other special powers, such as the powers to create or change rights of survivorship, create or change a beneficiary designation and to authorize another person to exercise the authority granted under the power of attorney. These extraordinary powers can be very helpful for long term care planning if someone is now or will soon be in need of nursing home care. The gifts the agent can make are further limited to being consistent with the principal’s objectives if the agent knows what those objectives are. However, if the agent does not know what those objectives are, he or she must still make sure the gift is aligned with the principal’s best interest, based on the value and nature of the principal’s property, foreseeable obligation and the need for maintenance. The power of attorney in all cases needs to know what their responsibilities are, and if they are given “hot” powers, they need to be informed what those specific powers are. If the agent is someone other than a spouse or descendant, that agent may not make gifts to themselves. A spouse or descendant, however, could make gifts to themselves. It boils done to the degree of confidence you have in who you are empowering in your power of attorney. The person does not need to be a financial genius. They can hire advisors. However, there is no replacement for trustworthiness. Reference: Glen Rose Reporter (Jan. 3, 2019) “Should you add hot powers to your power of attorney?” Estate Planning Attorney Can Help Avoid Family Feuds
The talk may be difficult but may turn out to be necessary. When someone dies or becomes disabled, the people who support and love that person are often in the position of walking into the middle of a movie and trying to figure out “What is going on?” As we age, sharing information ahead of time can be a big help. It might not be the easiest conversation you have ever had. However, it is a good idea to have a talk with your loved ones about what steps to take as you go through the aging process, according to The Des Moines Register in “In 2019, resolve to have a difficult conversation.” The person who is contemplating needing help, may want to start the conversation but the person who may be called on to help may find it too difficult to consider. Who wants to think about their parents getting frail and needing help going to the bathroom? No one. The person who is starting to feel the impact of aging may already be aware of some limitations. However, talking with their children or potential caregivers may change the conversation from “someday” to “soon.” The loss of independence is one of the big milestones, just as gaining independence is a milestone earlier in life. That’s a hard thing to accept for both sides. Those who have lived through this process of needing to become caregivers say that it would have been easier if they would have known what their loved ones wanted. So, would have been knowing what kind of help their loved ones could afford. It’s better to have time to research available resources in advance, rather than operating in crisis mode. This is what your conversations need to address: Medications, physical health, emotional well-being and health care providers Their wishes, if their health declines slowly or rapidly. Do they want to stay at home? Who would they want to help with daily care? Finances: Can they afford to pay for care at home? Has any Medicaid planning been done? What government programs are they eligible for? Do they have a CPA or financial advisor? Estate plan: Where is their Last Will and Testament? Is there a Power of Attorney, Living Will or Medical Directive in place? Who is their estate planning attorney? Documents, including birth certificates, Social Security, insurance cards, safe deposit box keys, computer passwords, etc. Seven out of 10 people over age 65 will need help from others at some point. Most will need it for at least three years, so it might be wise to have the conversation before a difficult situation arises.Reference: The Des Moines Register (Dec. 19, 2018) “In 2019, resolve to have a difficult conversation”
The position of POA can be revoked. It would be wise for everyone to have thought things through carefully and chosen a Power of Attorney (POA). It is important to remember that the decision can be changed in the future, according to nwi.com in “Estate Planning: Revoking a power of attorney.” One aspect of a Power of Attorney to carefully consider is, when does the authority granted in the document come into existence. A Power of Attorney can be an immediate document, which grants the full powers NOW. It can be a “Springing Power”, meaning that the authority comes into existence during events spelled out in the document, such as two doctors certifying incapacity. One the Power is in place, the terms of the document control what the authority is: you can give limited powers, full powers, or something in between. The person in charge does not own the assets, but is managing them as a “Fiduciary” which means as a highly trusted person, bring with it the responsibility of high loyalty to the person granting the power. When and how does the power end? There are three basic ways that a Power of Attorney can be terminated and the first is the date and time that it specifies, if it contains such language. POAs rarely have termination dates, because they are intended to be “durable” over an extended period of time. However, in certain circumstances, they can have a termination date. The second way a POA terminates, is at the death of the principal. Once the person in the POA dies, the attorney-in-fact authority ends, with the possible exceptions of making anatomical gifts on behalf of the principal, or the authority to make final arrangements or the authority to request an autopsy. Except for these unusual exceptions, the POA ends when the principal dies. The third way a POA terminates is when the principal executes a written revocation identifying the POA. For it to be effective, the attorney-in-fact has to receive actual knowledge of the revocation. Until they receive that actual knowledge, the POA revocation is not effective. To ensure that this is done properly, it is recommended that an estate planning attorney be involved, just to make sure there are no mistakes. A letter informing the POA of the revocation must be sent via certified mail, return receipt requested, using U.S. first-class mail. An email and a text follow up could take place, and a phone call would be a good idea. To make sure there are no deliberate misunderstandings, send a copy of the revocation to financial institutions that would be potentially targeted by the now former POA—if that is a concern. This includes the bank, financial advisor or any institution that is of particular concern. You want to make sure that these institutions are notified that the POA is no longer in effect. If the person refuses to sign the certified letter, you will need to prove that notice was given and that the person refused
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