Older Singles need to Plan for the Unexpected

May 1, 2023

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”

Single Parents Need Estate Planning

April 18, 2023

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”

Divorce requires a Review of Estate Planning

March 14, 2023

Even the most amicable divorce requires a review and update of your estate planning, as explained in a recent article from yahoo! finance, “I’m Divorcing. Will That Impact My Estate Planning?” This includes your will, power of attorney and other documents. Not getting this part of divorce right can have long-term repercussions, even after your death.

Last will and testament. If you don’t have a will, you should get this started. Why? If anything unexpected occurs, like dying while your divorce is in process, the people you want to receive your worldly goods will actually receive them, and the people you don’t want to receive your property won’t. If you do have a will and an estate plan and if your will leaves all of your property to your soon-to-be ex-spouse, then you may want to change it. Just a suggestion.

State laws handle assets in a will differently. Therefore, talk with your estate planning attorney and be sure your will is updated to reflect your new status, even before your divorce is finalized.

Trusts. The first change is to remove your someday-to-be ex-spouse as a trustee, if this is how you set up the trust. If you don’t have a trust and have children or others you would want to inherit assets, now might be the time to create a trust.

A Domestic Asset Protection Trust (DAPT) could be used to transfer assets to a trustee on behalf of minor children. The assets would not be considered marital property, so your spouse would not be entitled to them. However, a DAPT is an irrevocable trust, so once it’s created and funded, you would not be able to access these assets.

Review insurance policies. You’ll want to remove your spouse from insurance policies, especially life insurance. If you have young children with your spouse and you are sharing custody, you may want to keep your ex as a beneficiary, especially if that was ordered by the court. If you received your health insurance through your spouse’s plan, you’ll need to look into getting your own coverage after the divorce.

Power of Attorney. If your spouse is listed as your financial power of attorney and your healthcare power of attorney, there are steps you’ll need to take to make this change. First, you have to notify the person in writing to tell them a change is being made. This is especially urgent if you are reducing or eliminating their authority over your financial and legal affairs. You may only change or revoke a power of attorney in writing. Most states have specific language required to do this, and a local estate planning attorney can help do this properly.

You also have to notify all interested parties. This includes anyone who might regularly work with your power of attorney, or who should know this change is being made.

Divide Retirement Accounts. How these assets are divided depends on what kind of accounts they are and when the earnings were received. The court must issue a Qualified Domestic Relations Order (QDRO) before defined contribution plans can be split. The judge must sign this document, which allows plan administrators to enforce it. This applies to 401(k) plans, 403(b) plans and any plans governed under ERISA (Employment Retirement Income Security Act of 1974).

Divorce is stressful enough, and it may feel overwhelming to add estate planning into the mix. However, divorce really requires a complete review of your estate planning. Doing so will prevent many future problems and unwanted surprises. If you would like to learn more about the effects of divorce on your planning, please visit our previous posts.

Reference: yahoo! finance (Feb. 3, 2023) “I’m Divorcing. Will That Impact My Estate Planning?”

Steps Seniors should take before Remarrying

March 6, 2023

Seniors in particular think about remarrying with an understandable degree of concern. Maybe your last relationship ended in a divorce, or there’ve been too many dating disasters. However, according to a recent article from MSN, “Planning to remarry after a divorce? 6 tips to protect your financial future,” there are some steps seniors should take before remarrying to make relationships easier to navigate and protect your financial future.

Not all of them are easy, but all are worthwhile.

No marrying without a prenup. Who wants to think about divorce when they’re head-over-heels in love and planning a wedding? No one. However, think of a prenup as about the start, not the end. It clarifies many issues: full financial clarity, financial expectations and clear details on what would happen in the worst case scenario. Getting all this out in the open before you say “I do” makes it much easier for the new couple to go forward.

Trust…but verify. Estate planning ensures that assets pass as you want. A revocable living trust set up during your lifetime can be used to ensure your assets pass to your offspring. Unlike a will, the provisions of a revocable trust are effective not just when you die but in the event of incapacity. A living trust can provide for the trust creator and their children during any period of incapacity prior to death. At death, the trust ensures that beneficiaries receive assets without going through probate.

Consider life insurance. Life insurance, possibly held in an irrevocable life insurance trust (ILIT), which allows proceeds to pass tax-free, can be used to provide funds for a surviving spouse or children from a prior marriage. Make sure to review all insurance policies, including life, property and casualty and umbrella insurance to be sure you have the correct coverage in place, insurance policies are titled correctly and premiums continue to be paid.

Estate planning. While you are planning to remarry is a good time to check on account titles, beneficiary designations and powers of attorney. Couples should review their estate plans to be sure planning reflects current wishes. Married couples have the benefit of the unlimited marital deduction, meaning they can gift during their lifetime or bequeath at death an unlimited amount of assets to their U.S. citizen surviving spouse without any gift or estate tax. For unmarried couples, different estate planning techniques need to be used to pass the maximum amount to partners tax free.

Check beneficiaries. After divorce and before a remarriage, check beneficiaries on 401(k)s, pensions, retirement accounts and life insurance policies, Power of Attorney and Health Care Power of Attorney documents. If you remarry, a prenup agreement or state law may require you to give some portion of your estate to your spouse, so have an estate planning attorney guide you through any changes. Couples should also check beneficiaries of life insurance and retirement plans.

Choose trustees wisely. Consider the advantages of a corporate trustee, who will be neutral and may prevent tensions with a newly blended family. If an outsider is named as an executor, or to act as a trustee, they may be able to minimize conflict. They’ll also have the professional knowledge and expertise with legal, tax and administrative complexities of administering estates and trusts.

These are just some of the major steps seniors should take before remarrying. Sit down and discuss the implications on you planning with your estate planning lawyer. If you would like to learn more about remarriage protection, please visit our previous posts.

Reference: MSN (Feb. 11, 2023) “Planning to remarry after a divorce? 6 tips to protect your financial future”

Documents needed for Advance Care Planning

February 8, 2023

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?”

How the Guardianship Process Works

January 17, 2023

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?”

A Durable Power of Attorney is Essential

December 29, 2022

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”

Photo by Mikhail Nilov

Young Professionals Need Estate Planning

December 28, 2022

Even those whose daily tasks bring them close to death on a daily basis can be reluctant to consider having an estate plan done. However, young professionals, or high-income earners, needs estate planning to protect assets and prepare for incapacity. Estate planning also makes matters easier for loved ones, explains a recent article titled “Physician estate planning guide” from Medical Economics. An estate plan gets your wishes honored, minimizes court expenses and maintains family harmony.

Having an estate plan is needed by anyone, at any age or stage of life. A younger professional may be less inclined to consider estate planning. However, it’s a mistake to put it off.

Start by meeting with an experienced estate planning attorney in your home state. Have a power of attorney drafted to give a trusted person the ability to make decisions on your behalf should you become incapacitated. Not having this legal relationship leads to big problems. Your family will need to go to court to have a conservatorship or guardianship established to do something as simple as make a mortgage payment. Having a POA is a far better solution.

Next, talk with your estate planning attorney about a last will and testament and any trusts you might need. A will is a simpler method. However, if you have substantial assets, you may benefit from the protection a trust affords.

A will names your executor and expresses your wishes for property distribution. The will doesn’t become effective until after death when it’s reviewed by the court and verified during probate. The executor named in the will is then appointed to act on the directions in the will.

Most states don’t require an executor to be notified in advance. However, people should discuss this role with the person who they want to appoint. It’s not always a welcome surprise, and there’s no requirement for the named person to serve.

A trust is created to own property outside of the estate. It’s created and becomes effective while the person is still living and is often described as “kinder” to beneficiaries, especially if the grantor owns their practice and has complex business arrangements.

Trusts are useful for people who own assets in more than one state. In some cases, deeds to properties can be added into one trust, streamlining and consolidating assets and making it simpler to redirect after death.

Irrevocable trusts are especially useful to any doctor concerned about being sued for malpractice. An irrevocable trust helps protect assets from creditors seeking to recover assets.

Young professionals need estate planning because not being prepared with an estate plan addressing incapacity and death leads to a huge burden for loved ones. Once the plan is created, it should be updated every three to five years. Updating the plan is far easier than the initial creation and reflects changes in one’s life and in the law. If you would like to read more about estate planning for business owners, please visit our previous posts.

Reference: Medical Economics (Nov. 30, 2022) “Physician estate planning guide”

Guardianship is a Valuable tool to Protect Loved Ones

December 5, 2022

Guardianship is a valuable tool to protect loved ones. It is usually an act of last resort, embarked upon when there is no lesser restrictive means of protecting a person. There are steps to be taken to avoid being placed under guardianship, including signing a durable financial power of attorney and a medical power of attorney to allow someone of your choosing to make important decisions for you.

If you have these documents and later become incapacitated, there won’t be a need for guardianship because you’ll have an agent or agents in place to act on your behalf.

It is when there has been no advance planning and you develop a significant cognitive impairment when guardianship becomes necessary, according to a recent article, “Guardianship gone good: Protections afforded by guardianship may be necessary,” from The Dallas Morning News.

What if the powers of attorney you had so diligently prepared became invalid? It is possible but can be easily avoided if you take the right preventive steps.

First, make sure to review these documents every now and then. If someone you named to serve in one of these roles has moved far away, they may not be able to serve. Do you have a second person named for financial or medical POA? The same could occur if the person named became incapacitated, died, or declined to serve.

Second, you could have an agent who does not act in your best interest, often referred to as a “rogue” agent. This could be worse than having no agent.

Third, if you are acting against your own best interest, there’s not much a power of attorney can do to protect you from yourself. If your incapacity leads you to making bad decisions which jeopardize your own welfare, a court may create a guardianship to protect you from yourself.

This is why guardianships are nuanced, with every situation requiring a different solution.

For example, levels of incapacity vary. If the cognitive impairment is mild, you may not need someone to act for you. If your impairment is severe and leads to self-harm, violent outbursts or harm to others, a guardianship may become necessary.

Another concern for families whose loved ones have become incapacitated is their vulnerability to scammers.

While guardianship receives a lot of negative coverage in the media, it is, in many instances, a useful and valuable tool used to protect loved ones. If you would like to learn more about guardianships, please visit our previous posts.

Reference: The Dallas Morning News (Nov. 13, 2022) “Guardianship gone good: Protections afforded by guardianship may be necessary”

Photo by RODNAE Productions

Take Care When Naming a Co-Trustee

November 8, 2022

It is important to take care when naming a co-trustee. If you’ve already created a revocable trust, congratulations—that means you’ve taken steps to protect the people important to you and eliminated concerns they may have about what will happen when you’re gone. A recent article, “3 Things to Consider when Naming Co-Trustees,” from The Street, asks if you should name an adult child as your co-trustee.

Most people name themselves as a trustee of a revocable living trust, allowing themselves to maintain control over how the funds are managed. As children become adults, you may start including them in your estate planning discussions, which may lead them to propose a relatively straightforward idea: letting them serve alongside you, by being named as co-trustees.

This might make sense. However, it may not. You need to ask some hard questions.

First, are you and your adult child in alignment on financial matters? If you are conservative when it comes to money and investing, but your child is a free-wheeling, come-what-may person, then you definitely don’t want to have them as a co-trustee. Not only will you disagree on how assets are to be used, you may also find yourself in a situation where your assets are funding a lot of fun, which is likely not what you have in mind for assets in a revocable trust.

As the primary trustee of the revocable trust, you have the legal power to fire a co-trustee. This presents another obstacle. Firing your child, especially if you’re firing one child and replacing them with another child, could lead to a lot of family friction. Many estate planning attorneys have seen what happens when parents are reluctant to act, even when it is crystal clear they need to be fired.

Second, does their logistical status make this person a good co-trustee candidate? Location and even time zones are not as confining as they used to be. However, there is a real benefit to being able to show up in person if something goes wrong. What if there’s an issue processing something and the bank will not accept a document sent by email or fax, but requires an in-person signature?

Your trust might include language allowing each co-trustee to act independently of the other. However you need to take care, this opens the door to the person you are naming a co-trustee being able to act unilaterally. If you’re still able to manage your own finances, you may not want to give up this amount of control to an adult child.

Would a co-trustee role with a child require you to revise the entire estate plan? For some trust creators, making one adult child their revocable living trust co-trustee means they need to change their estate plan to be fair to their other children. Sometimes they feel that another child should be named as a Power of Attorney or Health Care Power of Attorney.

“Fairness” or “keeping the peace” should never, ever, be a reason for children or other individuals to be named for estate planning roles. Each agent has a task to do in carrying out your wishes as directed by your last will and testament, POAs and trust documents. Naming a kid who’s a financial disaster as a co-trustee is asking for trouble. Naming someone who doesn’t share your beliefs about end-of-life treatment means your wishes are not likely to be followed.

However, it is possible to have your estate planning attorney create a workable co-trustee arrangement between you and an adult child. If they live close by, you mainly agree on financial matters and they can be available to you on short notice, it’s likely the arrangement will work. If there is no one who could serve, speak with your estate planning attorney about alternatives. For instance, making an adult child a successor trustee will let them step in if and when you are not able to manage your affairs, while you retain full and complete authority while you are still able to do so. The bottom line is this: Take care when naming a co-trustee. The last thing you want to do is jeopardize your legacy. If you would like to learn more about trusts, please visit our previous posts.

Reference: The Street (Oct. 11, 2022) “3 Things to Consider when Naming Co-Trustees”

Photo by RODNAE Productions

Category: Powers of Attorney

Older Singles need to Plan for the Unexpected

Single Parents Need Estate Planning

Divorce requires a Review of Estate Planning

Steps Seniors should take before Remarrying

Documents needed for Advance Care Planning

How the Guardianship Process Works

A Durable Power of Attorney is Essential

Young Professionals Need Estate Planning

Guardianship is a Valuable tool to Protect Loved Ones

Take Care When Naming a Co-Trustee

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