While deep down inside we all know we need a will, we also probably have some idea of what happens without a will. Most folks know that when a person dies without a will it might be more expensive, but the estate will pass to family members. The estate would pass under the laws of intestacy; to a spouse, children, parents, siblings, etc. However, folks seldom think about what would happen if we found ourselves incapacitated.
The law defines an “incapacitated person” as an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.
A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. When we think incapacity we almost always think Alzheimer’s Disease or another form of dementia often associated with advanced age. Yet, I once had to file a Guardianship Petition for a person in their forties; their “incapacity” was due to a motor vehicle accident!
So, how do we plan for possible incapacity? Through the use of a properly drafted power of attorney.
There are two basic types of powers of attorney: the durablepower of attorney and the healthcare power of attorney. The durable power of attorney is used to appoint the agent you want to handle your financial affairs should you find yourself incapacitated. For most people, the primary agent will be your spouse or child, but it can be anyone, such as your bank’s trust department or in limited circumstances and after much disclosure, even your attorney. The agent under your durable power of attorney will be responsible for paying your bills, managing your assets, dealing with real property, filing your tax returns, etc. As you are delegating a lot of power to your agent, you want an experienced estate planning or a certified elder law attorney to draft this form. A durable power of attorney should be tailored to your specific circumstances. The power of attorney I draft for a young parent will be nothing like the power of attorney I draft for an elderly person.
Further, it can be just as important to limit the powers of an agent rather than giving the agent broad and virtually unlimited powers. For example, you might not want to give your agent the power to change a beneficiary clause or how an account is titled. We make sure the prohibition is noted and clearly set out so if the agent were to try to carry out a prohibited act, the third party could readily see the agent does not have the power to do it. This is where the knowledge of an experienced estate planning or certified elder law attorney is vital, for this in and of itself could save a lot in the future in terms of money and hard feelings within a family. There are many times when you might assume an agent has done something wrong, but the power of attorney gave them the power to do it!
The second power of attorney everyone should have is a healthcare power of attorney. This is the document where you name an agent that will make healthcare decisions on your behalf should you become incapacitated. Again, most often you will name your spouse or a child as your agent. As with your agent under a durable power of attorney, this agent must be not only honest and trustworthy, but they should also be willing to carry out your wishes even if they do not agree with them! For example, suppose in your living will you state that you do not want a feeding tube administered if you are in a persistent coma. Will the agent you appoint be willing to order the removal of the feeding tube when the time comes? I have seen cases where children do not want to carry out that decision, so I counsel the parent not to appoint that child as healthcare agent. The key to implementing a healthcare power of attorney is having a discussion about your wishes with your agent prior to incapacity. You want to create a situation where your agent knows your wishes, has agreed to carry them out and you have confidence in them that they will do it.
Both of these forms are revocable at anytime as long as you retain capacity to do so. What happens if you become incapacitated and you do not have powers of attorney in place? More often than not this results in the need for a Petition for Guardianship or Conservatorship to be filed in circuit court. This is much more expensive, time-consuming and cumbersome as it can involve the added cost of a bond as well as filing of accountings for the rest of your ward’s life.
Your powers of attorney should also be updated on a regular basis as well. The older you get, the more power your agent will need in order to be able to act without resorting to the courts. This is especially true in asset protection cases! Often we see clients that may have executed a durable power of attorney but it does not grant the agent the specific power needed to act. In these cases, we have no alternative but to file in circuit court.
The two powers of attorney discussed here are vital and every adult should have them. Consult an experienced estate planning or certified elder law attorney to ensure that your powers of attorney are up-to-date or to see if you need new ones drafted. It could save you thousands of dollars and a lot of headaches in the future. Contested guardianships can not only be expensive, but also can tear families apart. You can avoid that by prudent planning ahead of time. Contact us to see how we can help you!
From time to time, clients will ask us about reverse mortgages and if they are worth considering. The commercials look amazing! They show people vacationing, living a great lifestyle, happy couples on the beach or on the golf course, all smiling at their good fortune. Rewards of a reverse mortgage are repeated over and over and over.
For the Elder, a reverse mortgage can be a definite case of too good to be true and it is important to consider all of the potential long-term effects before proceeding, especially for those considering Medicaid Planning/Asset Protection or concerned about nursing home placement later on down the line.
Below are some common concerns that those TV and Movie star endorsement commercials don't get into:
(1) The Elder Might Need A Care Home in the Future
If you incur the debt of a reverse mortgage, or your aging parents do, it’s ok as long as they can live in that home. What happens when they have to move out of the home into assisted living or a nursing home? The mortgage becomes due. Now, there is the expense of paying it off, in addition to the high cost of the assisted living or nursing home care. It can leave an elder homeless!
(2) It Can Affect Any Dependent in the Home
If the elder who needs care in a facility has non-borrowing family members living in that home, the loan is still due. Anyone left in the home must move out, go to a care facility or be taken in by someone else. Those displaced if a borrowing elder has to go to a care facility can include a non-borrowing spouse, child or grandchild! They are “tenants” according the rules of reverse mortgages and they have to leave when the elder does.
(3) It Can Go Into Default
If an elder with a reverse mortgage fails to pay property taxes, to keep up insurance on the home, or fails to maintain the home, the elder is in default. The lender can then foreclose. Lenders are in a good position to purchase such properties cheaply and then flip them for a good profit. Elders who are low on cash may fail to pay home insurance premiums or property taxes. If they are getting forgetful, they might not maintain their properties.
(4) When the Elder Dies, the Heirs Must Pay Off the Loan
The entire principal, plus accrued interest and service fees must be paid in full to the lender before the heirs can rightfully take possession of the home. This debt may exceed the actual market value of the home. If they can’t pay the debt, the lender has the right to foreclose and sell the property. Low wealth heirs are not likely to be able to pay the debt and those homes fall into foreclosure. Goodbye inheritance.
(5) The Amount the Lender Will Loan is Limited
There are seemingly irrational formulas used to calculate how much a borrower can get on a reverse mortgage. If an elder lives into one’s 90′s, becoming more common these days, there is the risk that the amount loaned will not be enough to sustain the elder who needs long-term care at home. The elder can run out of money to make the loan payments, go into default and end up homeless and impoverished. This is a real risk, particularly for anyone who thinks it’s a dandy idea to take out a reverse mortgage to pay for home care providers. If the elder borrows, say, $200,000, and ends up needing care 24/7, that reverse mortgage cash she got will be exhausted in about two years or less. Then what? Default, foreclosure and Medicaid-paid nursing home.
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Red Bird Times is a FREE editorial-based monthly magazine for Seniors age 50 and better!
Each monthly edition features timely and relevant articles on health, finances, elder law concerns, and recreation for adults in the Southside, Virginia area. In addition to regular features, you will find a lot of humor, games and puzzles. The firm's Managing Attorney Mr. Haley also contributes a monthly column for the magazine, which you can also see on their website: www.redbirdtimes.com.
This month's issue is out today! Click here to check it or previous issues out online, or to see a list of distributor locations to find out where you can pick up your copy!
Every family needs someone to help manage care and services for their aging adults. The companion resource website created by The Estate and Elder Law Center of Southside Virginia found here aims to provide lists of many services or resources for seniors available in Southern Virginia!
It is our intent that you will find this resource site useful, and we appreciate feedback as we continue to develop this further in the future!
One of the benefits of a well-planned estate is the ease at which your assets pass to your heirs. Here we will share the tales of three different estates; I’ll discuss the ease, or difficulty the probate administration presents, and what was done, or not done, that led to these results.
The first estate is valued at near $1.5 million dollars! It is the easiest of the three to administer! The gentleman had placed all of his real estate in a trust years ago. His sons had already taken over as successor trustees as before his death, their father had become incapacitated. Upon his death, the administration of the trust continued with no change.
We want to congratulate Mr. Haley on 20 years of service to the Martinsvile-Henry County, and now Danville-Pittsylvania County communities. Earlier this week, on Tuesday, September 1st marked 20 years since Mr. Haley opened his law practice in Bassett, Virginia.
Here's to 20 more!!!
I have been practicing law for almost twenty years. Over the years my position on allowing family members to be appointed Conservator, Trustee or even Executor has changed. In many instances, the family member serves and all is well. However, as trusts and estates become more complicated, it is vital to seek an independent fiduciary.
This case is out of Utah. A gentleman received a settlement that was placed in a Special Needs Trust. His daughter is accused of embezzling over $100,000.00!!! While instances of outright theft might be rare, I have seen numerous instances where investments were mismanaged, improper bills were paid and funds not protected.
So when you are thinking of who you want to be your Agent, Trustee or Executor, think long and hard before you appoint a family member. In many instances, an independent fiduciary is the way to go!
On Thursday, July 30, 2015, Managing Attorney Robert W. Haley and staff of The Estate & Elder Law Center of Southside Virginia, PLLC held a Ribbon Cutting and Open House to celebrate the Grand Opening of the new Danville office location on 742 Main Street.
The ribbon cutting and refreshments followed brief remarks from Danville Council Member, John B. Gilstrap and Danville Chamber President, Laurie Moran, and Mr. Haley. Clients, associates and friends both new and old were on hand for this event. Our thanks go out to all who attended!
Robert W. Haley with The Estate & Elder Law Center of Southside Virginia, PLLC is pleased to announce the Grand Opening and Ribbon Cutting of the new Danville office on 742 Main Street on Thursday, July 30, 2015 from 11:30am to 1:30pm. A ribbon cutting and refreshments will follow brief remarks from Council Member, John B. Gilstrap and Danville Chamber President, Laurie Moran.
The Estate & Elder Law Center of Southside Virginia, PLLC specializes in Estate Planning, Guardianships, Medicaid Planning and Asset Protection. One of the few Certified Elder Law Attorneys in Virginia, and the only Certified Elder Law Attorney in Southside. Managing Attorney, Robert W. Haley is also included on the Super Lawyers List, a nomination from his peers as well as being a Certified Advanced Practitioner (CAP), one of only 82 with this level of expertise in the nation! Along with the firm’s staff, their focus is on providing you with the best possible legal representation.
For more information on available services, please visit www.VAElderLaw.com or call 855-503-5337.
It can be difficult to see your parent or relative age. At one time, he could do anything. Now, it seems as though age has gotten the best of him. If you’ve seen changes in your loved one due to age, he may need extra help at home. The following are some of the most common signs of someone who is in need of a nurse or senior caregiver.
In the last year I have heard of two terribly heart breaking cases where folks seemed to be trying to accomplish asset protection but the results were horrible.
In the first case, a person deeded their property to a child but the drafting attorney did not ensure the elder retained a "life estate" in the property. The title to the property passed to the child and later the started eviction proceedings against the parent!!
The second case was a client who thought she had retained a co-ownership interest with another person. Well, when we researched it, she had really deeded the entire property away, she owned no interest in it at all!
Property is probably the largest investment most of us will ever make. Never sign a deed unless you know exactly how title will be held after its recorded!
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