Friday, April 13, 2012 Where Do You Keep Your Important Papers?
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
Who knows where you keep your important papers? In an emergency situation, valuable time could be wasted tracking down important legal papers. Make it a point to tell your children, successor trustee or personal representative where they can find your original documents. If you store those documents in a safe deposit box, or a safe at home, make certain they have the ability to get into the box or safe.
We frequently receive calls from our clients’ family members who want to know where they can find these documents, and they need them “now” because there is a family crisis. There are legal limitations that tie our hands so often we cannot provide our copies to the family.
You do not have to tell anyone about the contents of the papers, just let them know how they can access them in an emergency.
Friday, March 30, 2012 Why Is the City Digging Up Telephone Poles?
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
I walk my dogs every day. We cruise the neighborhood. Of course making it safe, but also noticing any changes or new things. For the last month I have noticed piles of dirt around the wooden telephone poles. It seemed odd to me. Yesterday, I saw a young man digging around a pole. I asked him why and he told me the city decided it is much cheaper to dig the dirt from around the wooden poles, treat the wood with something to stop any rot or bug infestation, wrap it in a special cloth and then refill the dirt. This saves them loads of money because it is cheaper to maintain the poles, than it is to replace them. Of course, that makes sense. We have limited resources, and it is cheaper to take care of what we have, rather than let it fall apart and only notice when it fails.
How does this relate to you? If you have gone to the trouble and effort, and paid for, an estate plan to help protect you and those you care about if you are ill or die, why not make certain it still works. When the telephone poles were installed they were the best, but as time goes by things change. The City still wants them to be the best and can help that happen with maintenance. You, too, need to maintain your plan so that it works when you need it How can you do this? Set up a review appointment with your estate planning attorney to review your existing plan to determine if it covers your current circumstances and what you want to happen when you become ill or die. If not, it is easy to make changes now before there is a problem. The City is saving money and headaches. So can you.
Friday, March 23, 2012 Whitney Houston's Will Is Now Public - What Was She Thinking?
By Susan M. Graham, Certified Elder Attorney, Senior Edge Legal, Boise, Idaho
Whitney Houston’s Last Will and Testament is available on the internet and everyone can see the terms of her estate plan. Her estate goes to her daughter and is managed until she is 30, with some assets going to her earlier. Do you want your affairs made public? There were similar news reports about the Last Will and Testament for Jackie Kennedy Onassis and Elvis Presley. Every word of their Wills became public.
How does this happen? When someone dies with a “Last Will and Testament,” their Estate must be probated in the local court. This means the Will is filed with the court along with a petition requesting that the terms of the Will be followed and that someone nominated in the Will be appointed by the court to wind up the affairs of the deceased person. All of these documents filed with the court become a public record and are available for anyone to view. They just need to go to the courthouse and pay for copies.
Maybe this is not a problem for some people. But many of us would not be happy if the details of our personal lives were available for strangers to review. It is none of their business.
If this is a concern of yours, you may want to consult with your lawyer about how to create an estate plan that keeps your affairs private and still accomplishes your planning goals.
Friday, March 16, 2012 Hope is not a plan. Is it OK to have two house fires?
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
I talked to a wife this week who has been a caregiver for her demented husband for years. Recently he has taken to getting up in the night and using firewood stored by the fireplace to start fires on the hearth and in the firebox! Fortunately, his wife noticed both times and put the fires out. She is grateful for these miracles but sees no need to change how they live.
Her desire is to continue to care for and keep him at home with no help. This is a dangerous plan for both of them.
Fortunately, their children and doctor have taken notice and are working to make changes that will result in a safer environment for each of them with plenty of help.
Hope is not a plan. That approach is living in a fantasyland unrelated to real world events associated with ageing.
Friday, March 02, 2012 Inheritance Trust
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
Marie died and $400,000, which was all of her estate, went to her son, Chris. Chris was married to Jane and they had three children. Chris died two years later giving all of his assets, including those he inherited from his mother, to his wife. After a few years, Jane married Tim, a widower with one child. Jane and Tim did not have a prenuptial agreement, and they just decided to put all the assets each of them owned in joint names. Jane died a year after marrying and everything she owned went to Tim. When Tim died everything went to his child. Nothing went to Chris and Jane’s children.
Do you want your son’s widow to give your son’s inheritance to her new husband rather than your grandchildren? If not, you may want an “Inheritance Trust.”
Some other names for this type of trust are “dynasty,” “heritage,” or “legacy” trusts.
This trust provides powerful protection for the individuals who inherit from you. How does an inheritance trust work? Upon your death, the monies a person inherits from you will be deposited directly into this trust rather than being given to them out right. The funds that are placed in this trust will be protected from divorces, creditors, lawsuits, and bankruptcy.
Using an inheritance trust, we will rewrite the story about Chris. When Marie died, $400,000 went to Chris. This time Marie has created an irrevocable inheritance trust naming Chris as the Trustee and the sole beneficiary during his lifetime. When Chris dies, whatever remains in this Trust will go to his three children. Marie dies, and Chris puts the $400,000 in this inheritance trust. Chris decides how the funds will be invested, and he has the right to withdraw the money under certain circumstances. When Chris dies, those funds will go to his children and stay in Marie’s family. This trust provides extraordinary protection for Chris because the money will be protected should certain life tragedies occur, such as a serious illness, financial reversal or divorce.
Saturday, February 25, 2012 A Fresh Start - Seven Ways to Get Organized
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
Life gets away from us with endless distractions every day. Here are seven easy steps you can take to be certain some of the most important parts of your life stay organized.
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Keep your important papers in one place and tell someone where they are located. These papers may include some or all of the following: birth certificates, marriage certificates, death certificates, divorce decree, military discharge papers, life insurance, car titles, deeds, your Last Will and Testament, a Revocable or Irrevocable Trust, financial power of attorney, health power of attorney, living will, Physician’s Order for Scope of Treatment (POST), funeral plans, health insurance, long-term care insurance, a list of your bank accounts, retirement accounts, and other investments, along with a list of your charge card numbers.
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Sign a financial power of attorney, which allows the people you select to handle modest financial transactions for you if you are not able.
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In addition, sign a health power of attorney appointing someone to make health decisions on your behalf if you cannot communicate effectively.
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Sign a “living will” to elect the type of care you want to receive when you are on your deathbed. If you fail to have a “living will,” under Idaho law the legal and medical systems require at a minimum that you receive nutrition and hydration with tubes (nose or stomach tubes). The other two choices are to use all the fancy machines to keep you going as long as possible, or skip the tubes and fancy machines, and just keep you comfortable and “let me go.”
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Sign a Last Will and Testament or a revocable Trust so that your wishes will be followed when you die as to who will be in charge, and who will receive your “stuff” [the ring and gun] as well as who will receive your estate.
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If you have a safe deposit box, or a safe at home, make certain someone else has the ability to access them if your are ill, out of town or die.
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If you have pets, make arrangements for their care if you are unable to care for them due to illness or death.
Lastly, mark your calendar for a year from now to review this list and up date your affairs. That way you will stay organized and prepared which creates security for your future.
Friday, February 10, 2012 Wishing Does Not Make It So!
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
My 69-year-old Cousin in Seattle called on Sunday to update me with his bad news. His mother died on Thursday, his daughter was engaged to an unemployed plumber who has 2 young children, and my Cousin was diagnosed with diabetes. I asked if he had paperwork in effect to help address some of these issues and, like most people, he said “No.” He did tell me he is “thinking about” doing something.
Are you over 65 with no plan for your future?
Do you want to be in charge of your life for the rest of your life?
Wishing does not make it so. Put a plan in place to make that happen.
What “parts” does your plan need to take the mystery out of tomorrow and replace it with confidence and security? Everyone needs to start with the basics. First, decide and sign papers that set out who will handle your health decisions and finances if you are unable to help yourself. Most of us do not plan to die tomorrow, but it is a guarantee it will happen some day and you get to elect who gets all your things, from a ring to a bank account. At a minimum, you need a Last Will and Testament to fully accomplish your plan of who inherits from you when you are gone.
Get started on your plan now. How?
Contact your Certified Elder Law Attorney to discuss where you are, what you want to accomplish with the rest of your life, and discover the best strategy to get where you want to go.
Stop wishing, and do something NOW! Take the steps to help yourself have a more secure future.
Friday, January 20, 2012 Want to Protect Your Children’s Inheritance?
By Susan M. Graham, Attorney at Law, Senior Edge Legal, Boise, Idaho
Margaret Barkley, a retired first grade teacher, has been married for 45 years to Al, a machinist. They lived in town and have one son, Lee, also a machinist who is married to Sally. Lee and Sally have three children, Joe, Pete and Victoria.
Margaret and Al have been frugal all their lives and made a habit of putting money aside every paycheck. Now they are in their seventies and plan to leave everything they have to their son Lee, when they both die. They have not told Lee, but they never liked his wife. The Barkleys want to make certain that Sally does not end up with Lee’s inheritance
Margaret and Al have another worry--their grandson, Pete. Pete is 17, spends all his free time fishing in the Boise River and rather than study, he is with his girlfriend. His grades are so bad that he may not graduate from high school. His grandparents are concerned that unless Pete changes his ways, he will not be able to support himself.
What to do? Margaret and Al talked to their estate-planning attorney and shared their concerns about Lee, Sally and the grandchildren. They were honest in sharing their worries. For certain they did not want to give everything to Lee, and have it go to Sally when he dies because, if she remarried, Sally’s second husband would end up with everything. They want all their assets to pass to Lee and somehow be protected from Sally inheriting the balance. In addition, they want to help and protect their grandchildren. Their attorney suggests one planning method to accomplish their goals is to create an “Inheritance Trust.”
How does an “Inheritance Trust” work? Margaret and Al create the Inheritance Trust now, and they name the Trust as the recipient of their estate when they both die. Lee manages the Trust and also has the use of the estate assets deposited in the Trust. A big difference is when Lee dies the assets in the Trust go to his children, not his spouse. In addition, the funds in the trust can be used to help provide an education for the grandchildren. Pete can get the help he needs to be self-supporting, but he will not be able to freely waste the money in the Trust.
There are a number of additional benefits to leaving assets in Trust to Lee. These include: (1) the assets will be protected from his spouse in the event of divorce, (2) the assets will be protected from Lee’s creditors in the event of a financial hardship, (3) on Lee’s death, the unused assets will go to his blood relatives (grandchildren) instead of in laws, and (4) these assets are protected from lawsuits. If the grandchildren are under age 30, the funds are held in Trust for them until 30, but the funds can be available to the grandchildren to help them get started in life.
If you want to protect your children’s inheritances from divorce, lawsuits, creditors and bankruptcy, call and set up an appointment with me to see how this planning technique fits for your estate plan.
Saturday, December 17, 2011 There Go The Social Safety Nets (to help pay for catastrophic long-term care!!)
by Susan M. Graham, Attorney at Law, Senior Edge Legal, Boise, Idaho
We have no money in this country. We all know that. How does this impact on you if you need to pay for residential long-term care in a nursing home, assisted living or in your own home?
There are two government programs that are available to seniors to help pay for care - Medicare and Medicaid.
Medicare is a national health insurance program for people 65 and older. Medicare will help pay for a maximum of 100 days of care. To access this benefit a few requirements must be met. First, a person must be admitted to a hospital and stay there at least three days. Then, when they are discharged to a rehabilitative facility, such as the Boise Elks, if that person is improving, Medicare will pay 100% for the first 20 days of care. If the person continues to improve, Medicare will pay part and the individual or their supplemental insurance will pay part of the expense for the next 80 days.
What are the holes in this "safety net"? First, the Medicare recipient must be ADMITTED to the hospital and not there for OBSERVATION. The difference is huge. If a person is not admitted, Medicare will not pay a dime toward the rehabilitative care. If Medicare does not pay, then in most cases the supplemental health insurance coverage will not pay for the care as well. This problem is happening here in Idaho as well as nationwide. The bills for the first 20 days that I've seen range from $6,000 to $30,000. This is a huge bill for most individuals and families to absorb.
The next hole in the Medicare safety net requires that the person be "Improving" during their rehabilitative care. My cousin, Kathie, at age 98, went to the hospital for three days. She was admitted. They discharged her back to her nursing home and I was called two days later saying Medicare would not pay for her care because she was not "improving." She was old and could not follow instructions. I was not surprised that she failed this second test.
Another "safety net" is the federal and state Medicaid program. Part of this program helps to pay the long-term residential care expenses for people 65 and older who meet a list of criteria. The cost for privately paying these bills ranges from $20 per hour for a bath aide to $8,000 per month for skilled nursing care. To access this benefit, it is necessary to complete an application form and submit it to the Idaho Department of Health and Welfare. The last two application forms we submitted on behalf of a married couple were approximately 400 pages each.
There were at least six more inches of back-up information. It took hours and hours to sort out and complete the application and deal with the follow-up issues. All of our Medicaid applications have been approved in the past 5 years, but remember I have a law office. The process is onerous and next to impossible for regular families in crisis to complete on their own. That is not fair, but it is the real world.
We have no money in this country to continue to provide the safety nets that have been available.
What can you do to protect yourself and your loved ones?
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Make certain you have up-to-date legal documents that include your Living Will, Health Power of Attorney and Financial Power of Attorney.
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Let the people you plan to rely upon in a crisis know you have nominated them to help.
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If you need help, seek it out. Your failure to make informed decisions may cost you and your family thousands of dollars and unnecessary worry.
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Contact your government representatives and let them know you want honest safety nets that really work, not ones that exist on paper and are not really accessible to regular people.
Friday, November 04, 2011 How Do You Talk To Your Elderly Parents About Their Money? [And Not Sound Greedy?]
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
Are you thinking about your elderly parents' finances and beginning to worry what you should do to help them in an emergency?
Don't expect your parents to be thrilled at the idea of discussing their finances if they have not been open about this in the past.
If you are lucky, they may bring up the topic. When my Cousin Kathie was age 90, she called me one day to say she was going to be kicked out of her retirement home because she was two months behind in her rent. She asked me to call and check. I looked into it and she was indeed behind in the rent. Right then and there she asked that I take over her finances, which I did, and I continued to handle her finances until she died at the age of 99.
If you are not so lucky to be asked for your help, you need to start the discussion. Be careful that you don't come on too strong, because it may be perceived that you want to take their money. One way to start is to express your concern about your role in an emergency if they should die or worse, they become unable to handle their affairs due to old age, dementia or illness. If they share the information about what they own, the approximate value, and where their records are located, that would be a huge first step. If they don't, be patient. You have opened the door a crack and they may call you later to share this information.
An alternative approach is to suggest you go to a meeting with them at their attorney's office to get independent, unbiased information on alternative ways to handle the health and financial emergencies worrying you.
Of course, if they say no, you are stuck. You did your best.
If everything goes wrong that could go wrong and there is no plan in place when your parents become mentally or physically unable to handle their affairs, you have the option to go to Court to be appointed as their conservator [the one who handles their finances] and guardian [the one who makes the health and housing decisions].
What can you do? Start the discussion so everyone is prepared for the bad days in life, death or the possibiity of becoming incompetent. Good Luck!
Friday, October 28, 2011 Too Many Fall Leaves
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
Can you keep up with all the things you think you need to be doing? No? Well, NO is my answer!
The leaves are falling, I rake them every day, and in the morning they are back again. Pooh - I didn't plan to spend the extra half hour each evening doing this chore, so something else had to slide.
How can you get a grip rather than chasing what calls for your attention this moment?
Take some time, even if just 10 minutes, and decide what is important in the big picture "to do" today, this month, this year to get you where you want to go. Make a list.
In 2008, Congress took a look at the following statistics:
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It is estimated that more than 120 million Americans lack an up-to-date estate plan.
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Two thirds of Americans over age 65 believe they lack the necessary knowledge to plan adequately for retirement.
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Nearly one-half of all Americans are unfamiliar with basic retirement tools, such as a 401(k) plan.
The result was passage of HR 1499 declaring the third full week in October as National Estate Planning Awareness Week.
Now I am telling you this a week late, but even so, the information is a great reminder to focus on the big picture of the important steps to take to make certain you have the best and most secure future that preserves your independence, protects your family and protects your assets.
Check your own estate plan to be certain the documents you have are up to date with the current law and your changing circumstances. That way you will accomplish your personal goals.
Happy Halloween and pretty Fall to you.
Saturday, October 22, 2011 Would You Want Your Enemy As Your Guardian?
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
This happened for the heiress of L'Oreal, a French cosmetics company. Liliane Bettencourt is 89. She and her daughter, Francoise Bettencourt-Meyers, have been suing one another for oyears. A French Court found the mother to have failing mental healtlh and to be showing signs of dementia. The Court then appointed the daughter as her mother's guardian. Now, the daughter can control when her mother can travel and how her money will be managed.1
Could this happen to you?
A simple way to avoid this is sign a financial power of attorney and health power of attorney stating who you want to make financial and health decisions for you if you are not able to care for yourself. That will be a great first step.
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1Heiress Loses L'Oreal Family Fight. The Wall Street Journal, Page B8, October 18, 2011.
Saturday, September 10, 2011 13 Steps To Maintain Your Independence, Protect Your Assets and Protect Your Family
By: Susan M. Graham, Certified Elder Law Attorney
Do you want to protect your independence, assets and your family? There are many steps you can take to make it easier for you and your loved ones when the bad days happen: death or becoming unable to handle your affairs due to illness. I encourage you to consult with an attorney to discuss many of the following topics to see which will best fit your needs.
1. Health Power of Attorney. Signing this document permits the people you rely upon to talk with your doctor when you can't.
2. Living Will. If your death is near, you have 3 choices for your end-of-life medical care: (a) use all the fancy machines to keep you going, (b) have nutrition and hydration with tubes, or (c) "let me go." If you fail to sign a "Living Will," the legal and medical rules require that you be on "tubes" at a minimum.
3. Last Will and Testament. This document declares how you want your property distributed when you die, and if you have minor children, who will be the guardian. After a death, the Will is filed with the Probate Court to start the administration of the decedent's estate.
4. Revocable Trust. This is an other way to arrange for the management of your assets should you be unable to do so due to illness or when you die. This document usually allows you to avoid probate or going to court.
5. Financial Power of Attorney. This document identifies those people whom you selected to handle some of your finances if you are unable to do so because of illness.
6. Funeral Arrangements. Pre-planning your funeral is a gift to your family. Making your arrangements will assure that you will have what you want and save your family from the worry and burden of such decisions at an impossible time.
7. Pet Care. You have the opportunity to write down who you want to be the caretaker for your pet when you are gone, recovering from an illness, or in a rest home.
8. Beneficiary Designation. Make certain that the beneficiary designation on all life insurance, annuities and retirement accounts, such as IRAs and a 401(k), match your current estate plan.
9. Professional Advisors. List those professionals who know about your affairs. Include your attorney, accountant, insurance persons, doctors, dentist and others you rely on.
10. Important Records. Where do you keep your papers? Who knows where to look? Do they have a key, or can they get into your safe deposit box?
11. Family Information. Do you have a list of contact information for the family and friends who are important to you? This information is helpful in an emergency.
12. The Key to Your House. Who has one? Do they know whom to contact in an emergency?
13. Driving Instructions. If the time comes that it is no longer safe for you to drive, you can arrange ahead of time how to give up your car and provide for alternate transportation. Saturday, September 10, 2011 10 Steps to Take After the Death of a Loved One
By: Susan M. Graham, Certified Elder Law Attorney
This checklist includes important steps to help manage the estate of someone who has died.
1. Follow the specific funeral and burial instructions left by the decedent. Contact your local funeral home or mortuary for assistance in making or following through with any prearranged funeral plan.
2. Arrange for the care of any persons who were dependent on the decedent, such as minor or disabled children, an elderly spouse or the decedent's elderly relatives.
3. Arrange for the care of any pets of the decedent.
4. Secure the residence. You may want to have some trusted friend stay at the house. Change the locks.
5. Arrange to receive several copies of the death certificate - ten is not too many in most cases.
6. Keep track of your time. Get receipts for all out-of-pocket expenses you pay related to the estate administration so you can be reimbursed.
7. Notify the decedent's friends, family members and work associates of the death.
8. Call the attorney who set up the estate plan to make an appointment and learn how to administer the decedent's estate. The attorney can tell you who is legally responsible under a Last Will and Testament, Trust, or even if no documents were prepared. Locate the original Last Will and Tesatment or Trust to take to the attorney if those documents exist. It is important to talk with an attorney prior to making any decisions relating to the administration of the estate. Sometimes the wrong decision, taken hastily, can be costly.
9. Do not distribute any personal property items such as rings, guns, china and other household things until you speak to an attorney. If you distribute such items and you did not have the legal authority to do so, you may be personally liable to others.
10. Update your own estate plan to be certain you and your family are protected. It is important that a surviving spouse make changes now that their spouse has died. In most situations, it will be necessary to prepare a new financial power of attorney, new health power of attorney and new Last Will and Testament or Trust to reflect any changes to your plan. Saturday, July 16, 2011 It Takes Work to Die
The Wall Street Journal listed 25 documents you need before you die.1
Their subheading was "Design your death dossier soon - or you could be setting up your heirs for frustration and financial pain."
They are right. If you don't take the time to create a plan for your future and organize your documents, you are leaving a mess for your family. If may be impossible for the people you rely upon to help you. The distribution of your estate may be different than what you want because you may have failed to coordinate beneficiary designations on retirement accounts and life insurance with your total plan.
So what are those 25 documents that you should organize and put in one location so they are easy to find? I will list them below and add a few items they forgot.
Personal Information:
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Birth Certificate
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Marriage LIcense
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Divorce Papers
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Military Discharge Papers
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Death certificates for other immediate family members (spouse, parents, children)
Health Care:
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Personal and family medical history
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Durable health care power of attorney
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LIving Will
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Physician's Order for Scope of Treatment (POST)
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List of doctors and prescription drugs
Proof of Ownership:
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Housing, land and cemetery deeds
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Mortgage papers
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Proof of loans made and debts owed
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Vehicle titles
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Stock certificates, savings bonds and brokerage accounts
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Partnership and corporate operating agreements
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Tax returns
Life Insurance/Retirement Accounts:
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Life insurance policies
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Individual Retirement Accounts
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401(k) accounts
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Pension documents
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Annuity contracts
Bank Accounts:
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List of bank accounts
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List of all user names and passwords
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List of safe deposit boxes and keys
Estate Planning Documents:
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Will
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Financial Power of Attorney
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Trust
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Funeral Plan
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Pet Care Instructions
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List of who receives your "stuff" (e.g., ring and gun)
So get a box and start putting all these papers in that box. If you put in copies, mark on the copy to indicate where the originals are located.
Does this seem too much to do? Well, think about the people you care for and think about covering your back. If you want your life to go as well as possible, even during the bad days, you have to do your part.
So take 30-60 minutes and gather up these documents. Good for you if you do what I suggest!
P.S. The total is 32 - not 25.
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1The 25 Documents you Need Before You Die. The Wall Street Journal, July 2, 2011, page B7. Sunday, April 10, 2011 Florida Advance Health Care Directives
By Joseph S. Karp, Florida Bar Certified Elder Law Attorney
As a Florida elder law attorney, I find many people are confused about Advance Health Care Directives. Of course, that could be because so many people prefer to avoid the topic altogether! And on a personal level, I understand that: no one really wants to contemplate the possibility of being disabled and unable to communicate his own health care wishes! Little wonder then that there's a big disconnect between what Americans say and what they do about health planning. According to a 2006 Pew Research study, most Americans think they should be free to manage their own end-of-life decisions, without government interference. But how many of them have a Living Will that would keep them in control of their medical destiny? A paltry 29%.
There was a big uptick in interest in Living Wills and other Advanced Health Care Directives following the Teri Schiavo incident in my home state, but that sense of urgencyseems to have tapered off. To remind the public of the importance of making plans for health care decisions, April 16 has been declared National Health Care Decisions Day. It's the fourth annual, actually.
Here's a brief explanation of what each type of Advance Health Care Directive does, and the situations to which each apply.
Living Will
Florida Statutes section 765.03 lays out the rules for Living Wills. A Living Will is not just a "pull the plug" document as many believe: It documents the kinds of treatments you don't want - as well as those you do want - if you are in a terminal or end-stage condition, or in a persistent vegetative state.
Health Care Power of Attorney
The Health Care Power of Attorney allows you to designate another person to make your medical decisions if you become incapacitated and cannot express your own desires for medical treatment. The disability need not be permanent - for example, you could be under general anesthesia. The Health Care Power of Attorney should also contain language granting your agent and other designated persons the right to receive your confidential medical information. This information is otherwise privileged, pursuant to the federal HIPAA laws.
Do Not Resuscitate Order
A DNRO is signed by a physician stating that you have a terminal illness. The document requests that no resuscitative techniques be used in the event of cardiac or respiratory arrest. .
Pre-Need Guardian
Guardianship is a court proceeding in which a guardian exercises the legal rights of the incapacitated person who is unable to exercise his own rights. A Guardian may be an individual, or an institution such as a bank trust department, with the authority granted by the court to care for an incapacitated person and/or the incapacitated person’s assets. You may name a “pre-need” guardian who you wish to make your health care decisions if you ever become the subject of a guardianship. The Florida court genearlly honors such a request unless the pre-need guardian you've designate is found to be unqualified or does not wish to serve. Friday, April 01, 2011 It's Time for Spring Cleaning
By Susan Graham
When I was in high school every spring the mother of my best friend would change the living room curtains and furniture covers from dark winter colors to bright summer fabrics. At the same time she would spend a week doing a thorough cleaning. When she was done her house looked like it should be in “House Beautiful.”
How does this relate to your estate plan? It’s time for a little “Spring Cleaning” for your planning documents. Just take a few minutes to check your affairs and see if they are up to date before you are too busy with fun and family activities.
Here is a simple checklist:
• Where are your planning documents? Do the people you expect to back you up know where to find them?
• Are the people you identified on your financial and health power of attorney still appropriate? Do they know they have this job and do they know where to find the papers that authorize their status?
• If you have a Trust, have you titled your assets in the Trust name?
• If you have assets with beneficiary designations such as retirement accounts, IRAs, life insurance and annuities, have you named the appropriate people or your Trust as the beneficiary of those assets?
• Have you written your list of who gets your “stuff” (ring, lamp and gun) when you are gone?
• Have you filled out your “Bucket List” of the wonderful things you wanted to do between now and when you die?
Now is a perfect time to do “Spring Cleaning” in this corner of your life. It should take you less than half an hour. I promise you will be pleased with yourself once you have completed this checklist.
Friday, March 25, 2011 Florida's Proposed Medicaid Overhaul Jeopardizes Seniors
Florida's proposed Medicaid overhaul puts spousal refusal on the chopping block. And that spells trouble for Florida seniors, who will find it tougher to get Medicaid benefits if they ever need longterm nursing care. The 2010 survey of nursing home costs by the Metlife Mature Market Institute shows that in South Florida, the average cost of a private room at a nursing home $302 per day. Those kinds of numbers will wipe out the average family in short order.
The proposed new law, Florida SB 1356, would deem any interspousal transfer made after July 1, 2011 in excess of $109,560 to be a gift for Medicaid eligibility purposes. Thus, if a spouse needs to enter a longterm care facility and wants to apply for Medicaid benefits, the well spouse can be left with no more than $109,560 in assets. That is not much for a well spouse to live on. After a lifetime of hard work and saving, that's a sad way for someone to end their days.
Given this dire outlook, those who do not have the considerable resources to pay privately for longterm care, and those who do not have adequate longterm care insurance, are well advised to act now. Our Florida elder law attorneys can assist you to put proactive plans in place that may enable you to preserve a significant portion of your assets.
Historically, our law firm has been able to help families preserve assets even if a loved one is already in a nursing home, or about to enter one. We will probably be able to continue to do so, but the new law is going to make it far more problematic. In any event, it is always preferable to plan in advance, as a greater percentage of assets can likely be preserved.
One advance planning method is the Florida Irrevocable Medicaid Trust. This is a flexible legal instrument that can save your family significant funds in the long term. It is also a complex one, and should be planned and drafted only under the guidance of a lawyer who is experienced with these matters and certified by the Florida Bar in elder law.
To hear more about your options for Medicaid planning and preserving assets in today's economic climate, listen to my recent interview on the "Seniors Taking An Active Role in Society" radio program. For asssistance in putting a plan in place to protect your assets from being wiped out by nursing home costs, contact our Florida Elder Lawyers. Friday, March 04, 2011 Watch Out for Elder Abuse-(Here is a Common Example)
Actor Mickey Rooney has been the alleged victim of elder abuse at the hands of his own stepkids, according to the restraining orders filed Monday. The 90-year-old actor, who, born in vaudeville has had one of the longest careers of any actor, was granted court protection from stepson Chris Aber and his stepdaughter Christina Aber, after he filed a case against them charging verbal, emotional and financial abuse, and for denying him such basic necessities as food and medicine. The court documents say that both Chris and Christina Aber have been keeping Rooney as “effectively a prisoner in his own home: through the use of threats, intimidation and harassment. Chris Aber has also been accused of taking control over Rooney’s finances, blocking access to his mail and forcing the actor into performances he does not whish to do. With the assistance of attorneys Bruce Roth and Vivian Thoreen of Holland & Knight LLP, Rooney sought and was granted temporary protection for not only himself but for his wife, Jan Rooney, and his stepson, Mark Rooney, who lives with the actor. Rooney fears for their safety and is worried Chris and Christina Aber might retaliate in a physically abusive way, or try to kidnap the actor now that the case has been filed, court documents say. “All I want to do is live a peaceful life, to regain my life and be happy,” Rooney wrote in a statement to his fans. “I pray to God each day to protect us, help us endure and guide those other senior citizens who are also suffering.”
Friday, February 11, 2011 Protecting Assets With Caregivers Agreements
by Michael Ettinger, Esq.
Family members overwhelmingly provide the care for elderly and disabled loved ones at home. Although a labor of love, taking care of ailing loved ones also has a market value, meaning that caretakers can be paid as a way to protect assets.
Through the use of a Caregivers Agreement, also known as a Personal Services Contract, the disabled or elderly person can transfer money to family members as compensation rather than as a gift. Gifts to family members made in the last five years before applying for Medicaid to pay for nursing home costs disqualify the applicant from receiving Medicaid for a certain period of time, known as a "penalty period."
For example, Mom depends on daughter Janice for her care. If Mom gifts $100,000 to Janice, then goes into a nursing home in the next five years, and applies for Medicaid, the gift to Janice will result in about a nine month penalty period. Janice will have to give the $100,000 back to Mom to pay nursing home costs during the penalty period, or Mom will have to use other resources to pay.
Instead, using a Caregivers Agreement, Mom pays Janice $2,500 per month for caregiving services. If Mom moves to the nursing home in the next five years, the payments to Janice are compensation, not gifts.
Caregivers Agreements must follow strict rules, so should be drafted by an experienced New York elder law attorney.
The Caregivers Agreement must detail the services to be performed and the obligations of the parties. The payment is based on the going rate of caretaking in that county. Compensation is clearly delineated with hourly and yearly calculations for 24-hour personal care.
Janice must actually give the care and document her caretaking duties. Mom must actually need the care, which should be documented with a doctor's note.
To protect family relationships, it's recommended that all family members agree with the arrangement even if they are not parties to the agreement.
Janice has tax consequences. She reports the payments as ordinary income on her income tax return and pays income taxes on the compensation. In some cases, Mom may be able to deduct the payments as a medical expense.
A proper Caregivers Agreement arrangement can be a valuable elder law planning tool in the right circumstances. Friday, February 11, 2011 Are You a Veteran? Do you qualify for a ‘Presumptive Disability Benefit?”
by Susan M Graham, Esq.
The Department of Veterans Affairs has a list of “Presumptive” Disability Benefits for Certain Groups of Veterans. What does it mean to have a “presumptive” service connected disability? According to the VA they presume “that specific disabilities diagnosed in certain veterans were caused by their military service.”
This means if you are a veteran and have been diagnosed with one of the identified conditions you may be eligible to receive a military service connected disability.
I have attached the list prepared by the VA.
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