Archive for the ‘Durable Power of Attorney’ category

Beware! Estate Planning for Second Marriages Can Be Tricky.

March 8, 2012

The following was recently published in my “Ask the Lawyer” column:

Question:   I just got remarried and both my husband and I have children from previous marriages. I am worried that my son and daughter won’t get anything if I die first.

Answer:   You must take special care to plan if you are in a second marriage because of the complex relationships between step-parents and step-children. We see two common problems: (1) you add your husband’s name on the house and bank accounts, and if you die first he gets everything, and your children get nothing; or (2) you leave everything to your children, and your husband gets nothing (if you can believe it, we have had kids evict their mom’s husband from the house after their mom died). One other thing, your husband has inheritance rights to your assets even if you have a Will leaving everything to your children (this is called “spousal election”). We have special “Second Marriage Estate Planning Worksheet” to help you and your husband work through these issues (yes, there are solutions, and they result in taking care of your husband and your children, which is what most people want). If you would like our free Worksheet, please email me at gmatecun@mtolaw.com or call me at (517) 548-7400.

Mom and Dad, Can We Talk? Answers to Top Questions About Discussing Long-Term Care Planning

December 21, 2010

Recently, the founder of Elder Law Answers, Harry Margolis, answered some questions relating to talking with aging parents or other family members about sensitive issues such as wills, funeral arrangements, assisted living and medical treatment wishes. The questions and answers are good ones, so I am passing them along:

At what point is it appropriate for grown children, spouses, caregivers or friends to attempt to discuss these issues with aging parents, relatives or friends?  

The earlier the better, but every family is different, and raising these issues can be more or less uncomfortable depending on the family dynamics. Certainly, if there is an illness or medical emergency, that can serve as justification for beginning the discussion.

What’s the best way to broach the subject?

Rather than focusing on the parent or other family member’s current or possible future physical and mental decline, it often works better for the person starting the conversation to focus on his or her own concerns. She can say that she was meeting with her own estate planning attorney, which made her think about her parents’ situation. Or she can talk about how she is nervous about being able to care for her parents when and if the need comes up. Often parents won’t take measures to protect themselves, but they never stop being parents and will respond to a call for help from a child.

Where’s the best place to have such a discussion?

In the parent’s home.

Should you seek legal counsel first before initiating a talk?

Not necessarily. A legal consultation would help the children or other family members know what issues to discuss and some of the available options. But the ultimate goal should be for the elder to consult himself or herself with an attorney with elder law experience.

 Should it be one-on-one or should family members, friends or those with specific expertise in an area be part of the discussion?

That has to be determined on a case-by-case basis. We always encourage transparency so that all family members are in the loop. However, scheduling can be difficult and too many people involved can be overwhelming. In addition, depending on the circumstances, elder care and planning issues can take several meetings to resolve. Different people may be involved in different meetings depending on the issues being discussed at each.

What if your parent, spouse, etc., refuses to talk about these issues? How do you overcome this?

Follow the advice above. If it’s a parent, the child may have to be patient and wait until an opportunity arises to bring the subject up again. Ultimately, it may be impossible to get the parent to participate in any planning. If it’s a spouse, this is also true. However, a spouse may be able to take some planning steps on his or her own.

What steps can you legally take if an elderly person such as a parent or spouse refuses to take care of issues dealing with a will, housing, medical treatment or related areas?

It depends on the parent or spouse’s mental capacity. If they are incompetent, it is possible to go to court to be appointed conservator or guardian and to take over decision making in these areas. Unfortunately, this can be an expensive, time-consuming and cumbersome process. [Glenn speaking here: This is a good way to help a parent or other loved one understand why he or she needs an estate plan, including a durable power of attorney and health care power of attorney.  Without a good plan, if your parent becomes incapacitated, it will be necessary to go through court to obtain a guardian and/or conservator.]

 What can seniors do in advance, to avoid becoming embroiled with grown children, relatives, or friends over these issues.

Plan ahead. All seniors should sit down with an elder law attorney to discuss their goals, concerns and hopes and to develop a plan to reach the goals, address the concerns and give their hopes the opportunity to become realities.

 Glenn Matecun

Michigan Estate Planning & Elder Law Attorney

www.MichiganEstatePlans.com

Dementia, And How To Avoid Guardianships and Conservatorships With Proper Planning

July 17, 2010

Advanced age, unfortunately, is often accompanied by dementia, whether from Alzheimer’s disease, major or minor strokes, or any of a number of other illnesses.  The more severe the dementia, the more help seniors need getting through the day.  Seniors with dementia can be at great physical and financial risk due to their own bad decisions and vulnerability.  Depending on the situation, protecting seniors with dementia can be difficult.

From a legal standpoint, there are two main options when a senior can no longer handle his or her own affairs (otherwise known as “the easy way and the hard way”).  The first option — the hard way — involves filing a petition with the probate court for a “guardianship” and a “conservatorship”.   In Michigan, a “guardian” may be appointed by the court to make personal decisions, such as where the senior will live and what health care he will receive, while the “conservator” handles financial matters. The two roles can be filled by separate people or by the same person, and many times the roles are filled by a family member (son, daughter, etc.).

Even though they “get the job done”, court-ordered guardianships and conservatorships are not the best solution for many reasons:

  • They take away the protected person’s rights – he can no longer make decisions for himself.
  • There is a public hearing where he is declared to be incompetent, which can be hurtful.
  • There is the cost of hiring attorneys to get through the process.
  • The protected person’s situation and finances become part of the public record and the guardian and conservator must make annual reports to the court.
  • Depending on the state, many financial and estate planning can only be taken with court approval, which causes delay and increases legal fees.
  • Beyond financial drain, there is an emotional drain in dealing with “the system” and feeling that the family has lost control.

 Avoiding Guardianship

So, if guardianships and conservatorships are so bad, why does anyone use these procedures? The answer is usually simple:  “Lack of planning”. 

Often, guardianships and conservatorships can be avoided through estate planning while the senior is healthy and competent.  By appointing agents through durable powers of attorney, health care powers of attorney (sometimes called patient advocate designations or living wills) and trusts, a person can choose who will make decisions for him when he is no longer able to do so.  This can avoid family disputes and the cost and delay of court proceedings, while at the same time reducing the amount of emotional drain.  It can also give the appointed person more freedom to take steps to protect the senior.  So, make sure that you have a comprehensive estate plan in place, and that you have a legal review every couple of years to make sure the plan still complies with the law and meets your goals. 

For more information on estate planning, visit attorney Glenn R. Matecun’s online learning center at www.MichiganEstatePlans.com

Are You “Giving Up” Control Of Your Life, Or “Delegating” It? There Is A Big Difference.

May 9, 2010

Are you “giving up” control of your life, or “delegating” it?  Who will be in control when you can’t be? 

When you don’t have even the most basic Will or Living Trust, Durable Power of Attorney and Health Care Directive, you are “giving up” control to the Probate Court system.  When you take the time to put your written estate plan in place, you are “delegating” control to those in the best position to carry out your wishes.  And remember, your Health Care Directive allows you to stay in control until you are no longer able to make your own decisions.  Your Health Care Directive should plainly state that you want to be in charge of your own decisions, as long as you have the ability to communicate (which could include talking, writing, blinking, squeezing a hand, etc.).

The following New York Times article is a sobering reminder of what can happen when you lose control, even after preparing an estate plan.  It is also a reminder to:  (1) have a detailed written estate plan and, just as important,  (2) review and update your estate plan on a regular basis to make sure it meets your wishes.

New York Times – Article Link

The Three Prongs of Estate Planning: Incapacity Planning, Wealth Transfer and Beneficiary Protection

February 28, 2010

There are three general worries when clients sit down with me to talk about their estate plans.  These are:  (1) incapacity planning (what happens if I can’t handle my own affairs during my lifetime?); (2) wealth transfer (how do I get my assets to my loved ones in the most efficient and cost-effective way?); and (3) beneficiary protection (how do I protect my beneficiaries from creditors, a bad marriage, or even from their own poor spending habits?)

Today’s post will cover the first topic – incapacity planning – with future posts covering the other two topics.

Living trusts and incapacity.  When assets are held in a Living Trust, the “trustee” has full power to manage and protect Trust assets without Probate Court involvement.  While you are alive and able, you control and manage your assets, just like you do now.  If incapacity strikes, your “successor trustee”, who you choose, seamlessly steps into your shoes and continues the management and protection of Trust assets, for the benefit of you and your family.

General Durable Power of AttorneyFor “non-trust” matters, you name a person who is called an “attorney-in-fact” (or agent) to act for you under a Durable Power of Attorney.  Effectively, you are giving a trusted person authority to sign your name when you can’t.  Typically, your agent manages non-trust assets, files your tax returns, and acts as your legal representative without the need for Probate Court involvement. 

Health Care Power of Attorney.  A Health Care Power of Attorney (also known as a Patient Advocate Designation) serves two functions.  It identifies the persons entrusted to make medical decisions for you when you lack decision-making capacity.  It also sets forth your specific health care wishes.  A Health Care Power of Attorney tells your loved ones and your doctors how you want to be treated if you are in a terminal condition, irreversible coma, or persistent vegetative state.

HIPAA AuthorizationHIPAA regulations strictly limit third party access to your protected health care information.  While HIPAA’s regulatory goal is generally beneficial to you, it sometimes results in your family’s inability to obtain important medical information.  To avoid problems, HIPAA Authorizations are necessary to designate “Authorized Recipients” of protected health care information.

When you are preparing your estate plan, make sure that you have all your bases covered regarding incapacity planning.  Next up:  Wealth Transfer.

Glenn Matecun is an experienced Michigan estate planning attorney helping families with their estate plans, including living trusts, wills, durable powers of attorney, health care powers, probate administration, guardianships and conservatorships.  Toll free: (888) 487-6150 or online at www.MichiganEstatePlans.com

<a href=”http://topofblogs.com/law_legal“><img border=”0″ src=”http://stats.topofblogs.com/send/41695” alt=”TopOfBlogs” /></a>