Category: Elder Care

Older Singles need to Plan for the Unexpected

Older Singles need to Plan for the Unexpected

The U.S. Census Bureau reports nearly a third of all seniors live alone—about 14 million—some of whom don’t have children or anyone to care for them if they need help. However, according to a recent article from Forbes, “Essentials for the Solo Ager,” everything is fine until there’s a problem. This is especially true when the solo ager’s friends are all about the same age and in the same situation. Older singles need to plan for the unexpected.

One financial adviser asked an estate planning attorney to contact a client who was 88, living alone, still driving and maintaining her own home. She had an inadequate estate plan done for free by a volunteer at her senior center and needed a Power of Attorney and Health Care Power of Attorney. In addition, her only living relative lived outside of the United States, and the person she relied upon was a 90-year-old, legally blind neighbor. All of this had worked fine for years, but at 88, she was highly vulnerable.

Here are some options for solo agers to consider while planning constructively for the future:

Consider naming a fiduciary to handle finances in your estate plan, which an experienced estate planning attorney should prepare.

Healthcare decisions are often a minefield for someone who is cognitively or physically impaired and unable to make decisions. Some professionals can be named as your healthcare agent, preferably someone who knows the healthcare system and can advocate for you if you are incapacitated. In addition, a healthcare power of attorney would be needed.

Make your wishes and preferences clear in your estate planning documents, so someone who does not know you well can follow your specific directions and fulfill your wishes.

Give up the idea of being 100% well until you pass. Most seniors unfortunately experience one or more health challenges and need more assistance than they ever imagined. Be realistic and identify younger adults who will be able to help you and give them the legal tools to do so. If they never need to help you, fantastic, but if they do, you’ll be glad to have their help.

Single people are independent and self-reliant and take pride in these characteristics. This is great.  However, there comes a time when none of us can be independent. No one likes to think about losing their independence or becoming disabled. However, planning will keep you safer rather than hoping for the best.

Older singles need to plan for the unexpected. Meet with an experienced estate planning attorney who will help you plan for your future. If you would like to learn more about aging in place, please visit our previous posts. 

Reference: Forbes (March 26, 2023) “Essentials for the Solo Ager”

 

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Single Parents Need Estate Planning

Single Parents Need Estate Planning

For single parents, estate planning is an even greater need than for married couples, advises a recent article, “Estate planning 101 for single parents,” from The Orange County Register. However, even single parents blessed with a strong support system need an estate plan to protect their children. Single parents need estate planning. Here’s why.

An estate plan names a guardian in the will. Who will raise your children and become their guardian if you unexpectedly die or become incapacitated? If the other parent is surviving and has not lost parental rights, they will have custody of the child or children as a matter of law. This is not guardianship.  They are the legal parent.

However, if the other parent is deceased or their parental rights have been terminated, the court will need to grant guardianship. You need two documents to name a person whom you would want to raise your child. One is your will. It’s a good idea to list more than one person, in case someone named cannot or doesn’t wish to serve.

For example, “My mother, Sue Sandler, and if she cannot serve, then my brother Mike Sandler, and then my friend Leslie Strong.” There’s no guarantee that the court will appoint any of these people.  However, the court may consider the parent’s preferences.

Depending upon your state, you could have a “Nomination of Guardian” document separate from your will. Remember that your will becomes effective only upon your death. If you become incapacitated, this document would be considered when determining who will be named guardian.

You’ll also want a health care directive. This document states who is authorized to make health care decisions for you, if you cannot, and provides general directions about what kind of care you want to receive.

If there are minor children, a “Nomination of Health Care Agent” should also be in place, where you nominate another person to make healthcare decisions for your children if you cannot. For example, if you and your children are in a car accident and you are incapacitated and can’t respond to authorize health care, hospitalization, or other care for your child.

A will and a trust are critical if you have minor children. The will sets forth your nomination of guardians, and a trust can hold your assets, including life insurance proceeds and any other significant assets for the benefit of your children as directed in the trust. The trust is managed by the successor trustee appointed in the trust document. Even if the other parent lives and the child lives with them, the trust is controlled by the trustee, so your ex cannot access the money and the children receive the funds according to your wishes.

If you have only a will and die, your estate will go through probate and assets will effectively be put into a trust for the child and be given to the child when they become of legal age. However, most 18 or 21-year-olds are not mature enough to manage large sums of money, so a trust managed by a responsible adult with a framework for distribution will ensure that the assets are protected.

Once a child reaches the age of legal majority, they are considered an adult. As a result, the nomination of a guardian is no longer necessary, nor is the nomination of a health care agent. However, this is when they need to execute their health care directive, power of attorney and HIPAA form. If they were to become seriously sick, even as their parent, you would not have any legal right to discuss their care or treatment with health care providers without these documents. Single parents need estate planning to ensure the future care of their children. If you would like to learn more about estate planning for single parents, please visit our previous posts. 

Reference: The Orange County Register (March 12, 2023) “Estate planning 101 for single parents”

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Planning for Long-Term Care with Irrevocable Trusts

Planning for Long-Term Care with Irrevocable Trusts

One of the best strategies to plan for long-term care involves using an irrevocable trust. However, the word “irrevocable” makes people a little wary. It shouldn’t. Planning for long-term care with irrevocable trusts can provide peace of mind for your family. The use of the Intentionally Defective Grantor Trust, a type of irrevocable trust, provides both protection and flexibility, explains the article “Despite the name, irrevocable trusts provide flexibility” from The News-Enterprise.

Trusts are created by an estate planning attorney for each individual and their circumstances. Therefore, the provisions in one kind of trust may not be appropriate for another person, even when the situation appears to be the same on the surface. The flexibility provisions explored here are commonly used in Intentionally Defective Grantor Trusts, referred to as IDGTs.

Can the grantor change beneficiaries in an IDGT? The grantor, the person setting up the trust, can reserve a testamentary power of appointment, a special right allowing grantors to change after-death beneficiaries.

This power can also hold the trust assets in the grantors’ taxable estate, allowing for the stepped-up tax basis on appreciated property.

Depending on how the trust is created, the grantor may only have the right to change beneficiaries for a portion or all of the property. If the grantor wants to change beneficiaries, they must make that change in their will.

Can money or property from the trust be removed if needed later? IDGT trusts should always include both lifetime beneficiaries and after-death beneficiaries. After death, beneficiaries receive a share of assets upon the grantor’s death when the estate is distributed. Lifetime beneficiaries have the right to receive property during the grantor’s lifetime.

While grantors may retain the right to receive income from the trust, lifetime beneficiaries can receive the principal. This is particularly important if the trust includes a liquid account that needs to be gifted to the beneficiary to assist a parent.

The most important aspect? The lifetime beneficiary may receive the property and not the grantor. The beneficiary can then use the gifted property to help a parent.

An often-asked question of estate planning attorneys concerns what would happen if tax laws changed in the future. It’s a reasonable question.

If an irrevocable trust needs a technical change, the trust must go before a court to determine if the change can be made. However, most estate planning attorneys include a trust protector clause within the trust to maintain privacy and expediency.

A trust protector is a third party who is neither related nor subordinate to the grantor, serves as a fiduciary, and can sign off on necessary changes. Trust protectors serve as “fixers” and are used to ensure that the trust can operate as the grantors intended. They are not frequently used, but they offer flexibility for legislative changes.

Planning for long-term care with irrevocable trusts is an excellent way to protect assets with both protection and flexibility in mind. If you would like to learn more about long-term care planning, please visit our previous posts. 

Reference: The News-Enterprise (March 18, 2023) “Despite the name, irrevocable trusts provide flexibility”

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Asset Protection Trusts can address Long Term Care

Asset Protection Trusts can address Long Term Care

Asset protection trusts can address long term care costs. As the number of people aged 65 plus continues to increase, more seniors realize they must address the cost of long-term health care, which can quickly devour assets intended for retirement or inheritances. Those who can prepare in advance do well to consider asset protection trusts, says the article “Asset protection is major concern of aging population” from The News Enterprise. 

Asset protection trusts are irrevocable trusts in which another person manages the trust property and the person who created the trust—the grantor—is not entitled to the principal within the trust. There are several different types of irrevocable trusts used to protect assets. Still, one of the more frequently used irrevocable trusts for the purpose of protecting the grantor’s assets is the Intentionally Defective Grantor Trust, called IDGT for short.

As a side note, Revocable Living Trusts are completely different from Irrevocable Trusts and do not provide asset protection to grantors. Grantors placing their property into Revocable Living Trusts maintain the full right to control the property and use it for their own benefit, meaning any assets in the trust are not protected during the grantor’s lifetime.

IDGTs are irrevocable, and grantors have no right to principal and may not serve as a trustee, further limiting the grantors’ access to the property in the trust. Grantors may, however, receive any income from trust-owned property, such as rental properties or investment accounts.

During the grantor’s lifetime, any trust income is taxed at the grantor’s tax bracket rather than at the much higher trust tax bracket. Upon the grantor’s death, beneficiaries receive appreciated property at a stepped-up tax basis, avoiding a hefty capital gains tax.

While the term “irrevocable” makes some people nervous, most IDGTs have built-in flexibility and protections for grantors. One provision commonly included is a Testamentary Power of Appointment, which allows the grantor to change beneficiary designations.

IDGTs also include clauses providing for the grantors’ exclusive right to reside in the primary residence. However, if the grantor needs to change residences, the trustee may buy and sell property within the trust as needed.

IDGTs provide for two different types of beneficiaries: lifetime and after-death beneficiaries. Lifetime beneficiaries are those who will receive shares of the total estate upon the death of the grantor. Lifetime beneficiary provisions are important because they allow the grantor to make gifts from the trust principal. Hence, there is always at least one person who can receive the trust principal if need be.

Asset protection trusts are complicated and require the help of an experienced estate planning attorney. However, when used properly, asset protection trusts can address unanticipated creditors, long-term care costs and even unintended tax liabilities. If you would like to learn more about asset protection, please visit our previous posts. 

Reference: The News Enterprise (March 4, 2023) “Asset protection is major concern of aging population”

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Qualified Disability Trust can reduce Tax Burden

Qualified Disability Trust can reduce Tax Burden

A qualified disability trust can help reduce the tax burden associated with special needs trusts. A qualified disability trust, or QDisT, qualifies for tax exemptions and applies to most trusts created for an individual with special needs. In most cases, explains a recent article from Investopedia, “Qualified Disability Trust: Meaning and Tax Requirements,” the person receiving income from the trust must pay income tax. However, in 2003, the IRS added a section allowing some disability trusts to reduce this tax liability. This is another example of why reviewing estate plans every few years is important.

Trusts need to meet several requirements to be considered qualified disability trusts for tax purposes. However, if a special needs trust meets these criteria, it could save a lot in taxes.

Most special needs trusts already meet the requirement to be treated as qualified disability trusts and can be reported as such at tax time. For 2022 tax year, the tax exemption for a QDisT is $4,400. For tax year 2023, the amount will increase to $4,700. Income from a QDisT is reported on IRS Form 1041, using an EIN, while distributions to the beneficiary will be taxed on their own 1040 form.

The best way to fully understand a QDisT is through an example. Let’s say a child is diagnosed with a disability, and their grandparents contribute $500,000 to an irrevocable special needs trust the child’s parents have established for the child’s benefit. The trust generates $25,000 in annual income, and $10,000 is used annually for expenses from the child’s care and other needs.

Who pays the income tax bill on the trust’s gains? There are a few options.

The parents could include income from the trust as part of their taxes. This would be “on top” of their earned income, so they will pay their marginal tax on the $25,000 generated from the trust—paying $8,000 or more.

Alternatively, trust income spent for the child’s benefit can be taxed to the child—$10,000, as listed above. This would leave $15,000. However, this must be taxed to the trust. Trust income tax brackets are high and increase steeply. Paying this way could lead to higher taxes than if the parents paid the tax.

The QDisT was designed to alleviate this problem. QDisTs are entitled to the same exemption allowed to all individual taxpayers when filing a tax return. In 2012, for instance, the personal tax exemption was $3,800, so the first $3,800 of income from QDisTs wasn’t taxed.

The deduction for personal exemptions is suspended for tax years 2018 to 2025 by the Tax Cuts and Jobs Act, except the same law said that in any year there isn’t a personal exemption, the exemption will be allowed for a QDisT.

For tax year 2022, $4,400 is the indexed tax exemption amount for these trusts, including most special needs trusts. For tax year 2023, the amount will increase to $4,700.

To be reported as a qualified disability trust, specific requirements must be met:

  • The trust must be irrevocable.
  • The trust must be established for the sole benefit of the disabled beneficiary.
  • The disabled beneficiary must be under age 65 when the trust is established.
  • The beneficiary must have a disability included in the definition of disabled under the Social Security Act.
  • The trust must be a third-party trust, meaning all funding must come from someone other than the disabled beneficiary.

An experienced estate planning attorney can help set up a qualified disability trust that can help reduce the tax burden and allow you to enjoy the benefits the statute grants. If you would like to learn more about special needs planning, please visit our previous posts. 

Reference: Investopedia (March 4, 2023) “Qualified Disability Trust: Meaning and Tax Requirements”

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What are the Responsibilities of a Legal Guardian?

What are the Responsibilities of a Legal Guardian?

When a person is impaired by physical or mental illness or another kind of disability and they haven’t had a legal power of attorney or health care power of attorney created, they may need a court appointed guardian to act on their behalf. So what are the responsibilities of a legal guardian?

As explained in a recent article titled “Legal Guardians” from My Prime Time News, for the court to find the “protected person” in need of a guardian, it must find the protected person unable to receive or evaluate information or both, unable to make or communicate decisions to satisfy essential requirements for physical health, safety or self-care.

The guardian may receive the protected person’s income, such as Social Security, and pay bills. In some states, a conservator is appointed when someone has considerable assets requiring active management.

If a protected person needs help with the tasks of daily living and asset management, the court may appoint both a guardian and a conservator. One person may serve in both roles, unless the person is a “professional caretaker.”

In almost all cases, it is far better to have a plan for incapacity in place, with a trusted and known person named to serve as an agent to handle financial and legal matters, and the same or another person named to act as a health care proxy.

To be appointed a guardian, a petition must be filed with the court and any interested persons must be notified of the petition. This includes spouse, parents, adult children, other caretakers and the treating physician. The petition must include a letter from a doctor indicating the need for a guardianship.

The process varies in different jurisdictions. However, the court usually requires a background check and a credit report for the person petitioning for guardianship. The court appoints a visitor to investigate and report whether an appointment for the guardian is necessary and if the person petitioning for the role of guardian is suitable.

After all this has been completed, a hearing takes place, with the protected person present. The court will make its decision. If the decision is to award the guardianship, the court issues Letters of Appointment and an Order, unless the protected person protests. The order requires the guardian and/or conservator to file annual reports with the court.

The guardian’s responsibility varies with the circumstances. The guardian’s powers should generally be no greater than needed to see to the needs of the protected person. The protected person should be encouraged to maintain the greatest degree of independence under their circumstances. While the guardian is not required to take physical care of the protected person, they are responsible for ensuring the protected person has an appropriate level of care, whether in a nursing home, assisted living or other institutional care.

The guardian’s appointment ends when the protected person dies, or if the guardian dies or if the court issues an order terminating their guardianship. Your estate planning or elder law attorney can help explain what the responsibilities of a legal guardian are and how to begin the process. If you would like to learn more about guardianships, please visit our previous posts.

Reference: My Prime Time News (Jan. 1, 2023) “Legal Guardians”

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Better to have a Revocable or an Irrevocable Trust?

Better to have a Revocable or an Irrevocable Trust?

Is it better to have a revocable or irrevocable trust? It’s not always obvious which type of trust is the best for an individual, says a recent article titled “Which is Best for Me: Trusts” from Westchester & Fairfield County Business Journals.

In a revocable living trust (RLT), the creator of the trust, known as the “grantor,” benefits from the trust and can be the sole Trustee. While living, the grantor/trustee has full control of the real estate property, bank accounts or investments placed in the trust. The grantor can also amend, modify and revoke the trust.

The goal of a revocable trust is mainly to avoid probate at death. Probate is the process of admitting your last will and testament in the court in the county where you lived to have your last will deemed legally valid. This is also when the court appoints the executor named in your last will. The executor then has access to the estate’s assets to pay bills and distribute funds to beneficiaries as named in the last will.

Probate can take six months to several years to complete, depending upon the complexity of the estate and the jurisdiction. Once the estate is probated, your estate is part of the public record.

A revocable living trust and the transfer of assets into the trust can accomplish everything a last will can. However, distribution of assets at the time of death remains private and the court is not involved. Distribution of assets takes place according to the instructions in the trust.

By comparison, irrevocable trusts are not easily revoked or changed. Most irrevocable trusts are used as a planning tool to transfer assets for the benefit of another person without making an outright gift, or for purposes of Medicaid or estate tax planning. An Irrevocable Medicaid Asset Protection Trust is used to allow an individual to protect their life savings and home from the cost of long-term care, while allowing the trust’s creator to continue to live in their home and benefit from income generated by assets transferred into the irrevocable trust.

The grantor may not be a trustee of an irrevocable trust and the transfer of assets to a Medicaid Asset Protection trust starts a five-year penalty period for Nursing Home Medicaid and a two-and-a-half-year penalty period for Home Care Medicaid for applications filed after March 1, 2024. After the penalty (or “look back”) periods expire, the funds held by the trust are protected and are not considered countable assets for Medicaid.

An irrevocable trust can also be used to transfer assets for the benefit of a loved one, friend, child, or grandchild. Assets are not controlled by the beneficiaries but can be used by the trustee for the beneficiary’s health, education, maintenance and support.

Trusts are used to reduce the size of the taxable estate, to plan for the well-being of loved ones, and to protect the individual and couple if long-term care is needed. Whether it is better to have a revocable or an irrevocable trust depends a lot on your own circumstances. Speak with an estate planning attorney about which trust is best for your unique situation. If you would like to learn more about trusts, please visit our previous posts. 

Reference: Westchester & Fairfield County Business Journals (Jan. 26, 2023) “Which is Best for Me: Trusts”

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Documents needed for Advance Care Planning

Documents needed for Advance Care Planning

Starting discussions earlier helps ensure that a person with dementia stays involved and understands the planning process. In the same fashion, regular reviews of plans over time are beneficial for ensuring that their wishes are carried out. There are a few essential documents needed for advance care planning that you need to have included.

Health News’ recent article entitled “Can Someone With Dementia Sign Legal Documents?” cautions that, when family members don’t know the preferences of their loved one, they have difficulties and stress in making decisions. Family members may also have feelings of guilt, self-doubt and stress while making advanced care decisions.

Laws in each state may differ. Working with an experienced elder law attorney can help seniors interpret state laws, plan how wishes should be carried out and understand financial options.

Geriatric care managers, trained social workers, or nurses can also offer support to those living with dementia, as well as their families.

While advance care planning, families and their loved ones with dementia should create a plan for long-term care and plan for funeral arrangements in advance.

Advance care planning documents commonly include the following:

  • A durable power of attorney for healthcare names someone to function as a proxy for the person with dementia, when he or she may be unable to make healthcare decisions for themselves.
  • A living will includes an individual’s wishes for end-of-life treatment. This can concern specific procedures such as dialysis, tubal feeding, or blood transfusion. If the person becomes permanently unconscious (coma), families can make treatment decisions based on wishes expressed in a living will.
  • A do-not-resuscitate order (DNR) is put with a patient’s chart when the patient doesn’t want to receive cardiopulmonary resuscitation (CPR) if their heart stops or breathing ceases. A doctor needs to sign these DNR orders before they can be placed in the patient’s charts.

Advance care planning can be a sensitive topic for families and those with dementia.

Getting medical and legal advice early is helpful in planning advance care. Involving the person with dementia in the planning process also helps families ensure that the wishes of the patient are respected. Work with your estate planning attorney to ensure these needed documents for advance care planning are included in your overall planning. If you would like to learn more about advance care planning, please visit our previous posts. 

Reference: Health News (Jan. 11, 2023) “Can Someone With Dementia Sign Legal Documents?”

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How the Guardianship Process Works

How the Guardianship Process Works

For family members of the estimated 6.5 million dementia patients in the U.S., it is crucial to understand whether guardianship may be an option for their loved one. A recent article from Next Avenue titled “Thinking of Becoming a Guardian?” explains how the guardianship process works and what factors go into the decision-making process.

Guardianship is the position of being responsible for someone else. State courts usually appoint a guardian to make decisions for a person, if the court finds that person to be incapacitated or unable to make safe and reasonable decisions for themselves. People who are placed under guardianship, known as “wards,” often lose their independence in making financial, legal and health care decisions.

If full guardianship is awarded, the person cannot make decisions about whether they may vote, marry, where they live, or make their own end-of-life decisions.

Two tasks that are evaluated when considering guardianship are a person’s ability to manage personal finances and to take medications as prescribed.

The court may call on a geriatrician or psychiatrist to evaluate the person’s functional behavior, cognitive function, disabling conditions and ability to meet their essential needs.

There are benefits to guardianship for someone who is not able to care for themselves. It ideally creates a safety net for a person who cannot make informed decisions for themselves.

this, of course, assumes that the guardian is honest and accountable, which is not always the case. The inconsistencies plaguing the guardianship system include minimum standards for guardians, lack of regular independent reviews of the need for guardianship and lack of educational requirements for guardians.

Once guardianship is assigned, there is a tendency for the person to become lost when no follow-up is done. The very same person who lacks capacity to care for themselves is not going to be able to advocate for themselves, contact an attorney or access funds for court proceedings.

There is also a tendency to assign full guardianship for a person, rather than less restrictive alternatives.

There are alternatives, but they require planning and discussion. More than 40% of Americans have not discussed their wishes for end-of-life care with their loved ones, according to an article in the Journal of the American Geriatrics Society. Families should have a conversation at the first sign of memory loss or when preparing for retirement regarding wishes for end-of-life care and write them down as part of an Advanced Directive—also known as a Living Will and Health Care Power of Attorney—when preparing their estate plan.

Another important document, although not legally binding, is a “Value History,” where you share your values and beliefs as they may impact care choices.

Designate a Power of Attorney and list two or even three back-up candidates. This person will be responsible for financial, legal and personal matters, avoiding the need for guardianship.

Appointing a family member or friend as a guardian is the ideal solution. However, there are instances when the best person to be a guardian is not a family member, but a court-appointed outsider. This relieves the family of being the ones who need to inform a person suffering from dementia with the news of having to move into a nursing home facility or sifting through financial records to learn that the family home is in foreclosure. The family can focus on being supportive and loving, while the guardian deals with the sometimes harsh realities of the person’s life.

Speak with your estate planning attorney to learn about how the guardianship process works, and whether it may be the right move for your family. If you would like to learn more about guardianships, please visit our previous posts.

Reference: Next Avenue (Dec. 23, 2022) “Thinking of Becoming a Guardian?”

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A Durable Power of Attorney is Essential

A Durable Power of Attorney is Essential

A durable power of attorney is essential to a comprehensive estate plan. A power of attorney is a legal document in which you authorize another person (called an agent) or financial institution to act on your behalf to execute certain financial transactions in the event that you’re unable to do so. Transaction might include paying bills, handling insurance claims, selling real estate and filing a tax return.

WMUR’s recent article entitled “Reasons you may need a durable power of attorney” reminds us that this is a cumbersome, time-consuming and potentially expensive process at a time of immediate needs and emotional stress.

Your spouse can probably do the basic bill paying. However, many financial transactions—like the sale of an investment or home—require both spouses’ signatures. You may have some assets in only your name. That means your spouse would have no access to those assets should they be needed to pay the medical expenses due to the disability that’s preventing you from handling your own finances.

Some types of powers of attorney are simply convenience documents that are used for specific transactions or to manage finances for a limited time while a person is out of town. However, there’s also a durable power of attorney for medical care. With this document, you name someone to make medical decisions on your behalf should you be incapacitated. It’s a separate document.

Most commonly, a “durable” financial power of attorney goes into effect upon signing and remains in effect through any incapacity and until your death unless you revoke it. This power of attorney typically allows the agent to perform a broad range of financial transactions on behalf of the person.

A durable power of attorney is essential to a comprehensive estate plan. Ask an experienced estate planning attorney to draft the power of attorney, because to be effective, it needs to meet state law. These laws vary from state to state.

In addition to granting broad powers, the POA must be specific about certain rights granted to the agent. For example, the grantor may give an agent the right to make gifts on behalf of the grantor, the right to complete and sign your tax returns, exercise stock options, or sue a third party.

However, you might want to add some restrictions, such as the conditions in which your assets can be sold. Your attorney may also retain the document for you pending release, if you should become incapacitated. If you would like to learn more about powers of attorney, please visit our previous posts. 

Reference: WMUR (May 5, 2022) “Reasons you may need a durable power of attorney”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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