by Dan McCarthy | Feb 2, 2022 | Estate Planning, Trusts and Wills
- I don’t own much and neither does my family. Can’t we delay estate planning until we can afford it?
You shouldn’t. It is crucial to give legal authority to a person of your choice, to care for your children if anything should happen to you. You don’t want your children to become wards of the court, or to be delivered to a family member you don’t like. Second, the cost to you at the front end (now) is much less than it could be later when you might face steep legal fees to get the job done. We’re all in favor of lawyers earning a living. We just never want any of our clients to have to pay for costs that are unnecessary or avoidable.
- My son just graduated from high school. He owns nothing but an autographed baseball and a 1997 Chevy pickup. Surely I don’t have to worry about an estate plan for him?
You should. Estate planning isn’t just about owning property. Life needs protecting, too. If your child should lose consciousness in an accident, and he or she is over the age of 18, you as a parent will no longer have the legal authority to decide what medical treatment he should receive. Insurance companies might refuse to deal with you.
Just imagine the stress of it. You’d be there to help, but nobody would be legally required to listen to you. You would have to go to court and get a guardianship – over your own child.
Instead, just think how much easier (and less expensive) it would be to get your adult child to come in to see us, while all is OK now, to make out powers of attorney. Those are documents that convey legal authority onto you, or on people of your adult child’s choice, to act on your child’s behalf if he or she becomes unable.
- Our kids are grown and married. Can’t my spouse and I postpone planning?
You shouldn’t. First, you can never tell when disaster might strike. Second, your kids may seem happily married now, but there’s no telling how long for – and you don’t want to see their, and possibly your, money and property lost in bitter divorce proceedings or lawsuits or bankruptcies.
- Our kids are able-bodied, thank goodness. Why should we worry about protecting disability benefits for them if they don’t need them?
They might not need those benefits now. But if they become disabled in the future, and if they inherit money from you, inherited money could cost them thousands of dollars a year in benefits.
- My doctors know best. I’m not going to tell them how to do their jobs, and I don’t want anyone else doing that either. What’s wrong with that?
Do you want to be kept alive on machines, possibly for years, when you no longer can care for yourself, recognize loved ones, converse, or even swallow? These days, medical machines can breathe for you through a tube in your throat, keep your heart beating, and deliver food and fluids through a tube in your stomach. Many who are on these machines die in the hospital, their arms tied down to prevent dislodging the tubes. Health-care providers are ethically obligated to keep you alive to the bitter end. Few of us want that. You can decline those extreme measures with our carefully crafted legal documents.
- Can’t I just grab a will of the internet, do a transfer-on-death deed for my land, put my kids on my bank account, and call it done?
Just look at some of the complications, in the above answers. An estate plan should protect disabled children’s inheritances from the loss of valuable government benefits. It should avoid probate court. It should protect money from creditors or divorce or remarriage. It should avoid disputes between children as joint owners.
Even a relatively simple situation contains many moving parts. It takes expertise to coordinate the various strategies. Don’t risk a result you wouldn’t want. Call us to create a plan that harmonizes the moving parts, so the gears will work together and you will leave the legacy you intended.
- Can’t I just forget the whole thing and let my kids deal with it after I’m gone?
Sure you can. But your kids will not thank you for leaving a disorganized mess behind, and that may be how they remember you.
Here’s one good idea:
Come see us now. The documents we create for you might be “just pieces of paper,” but they are worth a great deal more than that. At a stressful time when additional hurdles are the last thing you need, powers of attorney and other estate-planning options could save you and your family delay, expense, and heartache. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.
by Dan McCarthy | Jan 26, 2022 | Estate Planning
In order for your parents to be properly prepared for the future, it is critical to discuss finances with them. To broach the topic, you might bring up current events like the coronavirus pandemic, its effect on economic conditions, and how it relates to the security of their financial future. The conversation should come from a calming place of love and concern. Speak to them respectfully about how the coronavirus pandemic has you thinking about the importance of their planning and preparedness.
Once you begin the conversation, move away from the pandemic as your introductory technique as you do not want to create a sense of panic or fear. Instead, delve into legal and financial reviews, processes, and parameters. US News reports that your parents’ financial analysis should include essential legal documents, financial accounts, and associated vital contacts, long-term care decisions, and claims. If you live apart, lay the groundwork to help them with their finances remotely.
It is generally most comfortable to begin your conversation with legal documents that hopefully your parents already have in a place like a will, trust, living will, and a health care proxy. If your parents do not have these documents, they must retain an attorney and create the ones that best suit their needs. If you need to help your parents manage their finances, you must have a durable power of attorney. A durable power of attorney allows you to make financial decisions for your parents in the event they become incapacitated. This is an essential estate planning document. In the absence of a durable power of attorney, the courts become involved, and solving health or financial issues becomes a lengthy, expensive process over which you have little control. If your parents already have their legal documents drawn up, find out where they keep them and review them carefully. If any documents need to be amended, suggest that your parents meet with an attorney to make the relevant changes. Be sure their documents reflect the state law in which they reside.
Once you have assessed your parents’ legal documents, it is time for some financial discovery. Even if your parents do not currently need help, having an overview of their finances and a durable power of attorney to help them in the future is crucial to their aging success. Begin by listing all of their accounts, account numbers, usernames, and passwords as well as employee contact names. Include insurance policies, the agent’s name, and where the policy is, as well as how they pay their premiums. Include any online medical accounts or list their doctors’ names and office numbers. The idea is to create a comprehensive list of all of these accounts. Gather your parents’ Medicare and Social Security numbers and their drivers’ license numbers. Know where they keep this information so that in the future you will know where to look. Also, learn about any online bill paying or automated, re-occurring activity. These usually include monthly bills like electricity, natural gas, water, etc. but may also include quarterly payments or annual subscriptions.
If your parents still live in their long-time home, discuss if it is viable that they live out their days there, or if downsizing to a retirement community or moving closer to where you live appeals to them. Help them come to a decision that is best for their set of circumstances. If they do not have long-term care insurance or some other mechanism to aid them in times of need, talk about the topic, and try to come up with a solution. If they do have long-term care, be sure you have a copy of the policy, contact information, and the name of the insurer and agent. Review the requirements for receiving benefits so you can help them when they need to file a claim as most policies have a waiting period of 30 to 90 days before benefits begin. Know what to expect.
Digital technology has made oversight of parents and their finances easier than ever as long as you have a durable power of attorney and access to their account information. If they do not yet pay their bills online, or use auto payment, help them set up this option for their monthly bills. Remind them you will provide oversight to ensure proper billing. Offer to help them with their annual tax filings. Your help relieves some pressure on them and provides you with information about the goings-on in your parents’ accounts. For your parents’ peace of mind, you can establish a monthly video chat to let them know their bill payments are progressing normally. Your involvement will allow you to identify any abnormalities in account activity, which may indicate scam attempts.
Having these financial and planning conversations with your parents today can help them live more securely and with less stress as they age. Most parents will try to avoid these discussions with their children because they may not be adequately prepared for what can lie ahead. Conversations that focus on proper legal documents and gathering financial account information will give you the data you need to help protect your parents.
We would be happy to help you and your parents with critical planning documents. We are open and taking new clients, and we hope to talk with you soon about your particular needs. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.
by Dan McCarthy | Dec 29, 2021 | Elder Law, Estate Planning
Attorney’s prepare powers-of-attorney documents for clients in order to communicate their wishes and delegate an entrusted person to make decisions on the clients’ behalf when their clients no longer can. But when it comes to actually using those documents at the time of a healthcare crisis, clear and powerful documents are just the beginning. The decision points can (and must) be put down on paper in advance, but when it comes to end-of-life situations, the clarity on which we lawyers thrive can be very hard to find.
Sitting in her lawyer’s office, the client may have been quite certain about health-care decisions. She does not want her life prolonged by a battery of aggressive treatments, where these would not preserve her quality of life. She does not want blood transfusions, dialysis, repeated courses of antibiotics and chemotherapy, cardiopulmonary resuscitation, or breathing and feeding tubes. She does not want to die inert in the ICU, surrounded by machines and strangers. She wants to die at home, surrounded by loved ones, at a time when she retains the presence of mind to make her peace.
But that goal doesn’t just happen from wishing it and stating it. It happens with additional careful preparation for the realities. As the end of life approaches, the clarity we lawyers enjoy can be elusive. When a person gets a prognosis of two to five years (maybe), where, along that continuum, would be the time to start declining aggressive treatment? When there’s always one more intervention that may (or may not) produce a good result? When one decision could create an ever-widening array of complications? When, step by step, the patient becomes less and less able to exercise autonomy, and where treatment decisions by caregivers are not in line with the care the patient was clear about when she was sitting in the lawyer’s office?
No matter how clear the powers-of-attorney documents, with all these imponderables, the patient can end up in a situation many miles away from what she wanted. And there’s no possible do-over.
Powerful and clear power-of-attorney documents are an essential first step and we lawyers are glad to take care of that part. Beyond that, though, thorough preparation is essential.
Consider that the best result may be one that cares for comfort right now, at the moment. The question is not necessarily about how long life can be prolonged. The question may be, rather, how comfort can be maintained – at this moment, and then the next moment, and the next. The question is how life can be made better right now. Watch a video by palliative-care physician B.J. Miller, on why this is so important, here.
Make concrete plans. These include specifying what you want to happen if you’re no longer able to live independently; choosing wisely whom you want to act for you, to make sure your plans will be followed; being ready with your health-care documents before you find yourself deposited in the emergency room or ICU; and seeking the reassurance that your loved ones will be cared for when you’re no longer there. Judy MacDonald Johnson has prepared simple, forthright worksheets to help with this process, here. She speaks about these worksheets in this moving video.
There is no doubt that the process of safeguarding the quality of life at the end of it is possibly the most challenging of all. But if that process can create as much pleasure as possible through an extremely difficult time of life, and if forthrightly engaging in that process would facilitate a passing more in line with what we would envision, the worth of the process will be felt. The transition will be smoother and more meaningful for the dying person, and a kinder legacy will be left behind for those who accompany us on this journey.
Please don’t hesitate to reach out if we can help you or a loved one with a plan. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.
by Dan McCarthy | Nov 10, 2021 | Estate Planning, Trusts and Wills
It is critical to have iron-clad “power of attorney” documents for when you are no longer able to manage your financial or healthcare matters. Beware if you rely only on POAs that hospitals provide, or that you have pulled off the Internet, or that you have got from other attorneys who do not focus their practice specifically on elder law. When an emergency arises, the bank or health-care provider may refuse to allow your agent to act – and then the only recourse is to go to court and get a guardianship.
This is definitely not what you want to hear in an emergency. Guardianship proceedings cost time and money, they expose your private affairs to the public, and you or your elder can lose control of your autonomy. Worst case, unfriendly family members can try to take advantage of a helpless elder, and it can cost tremendous anxiety and expense to defend against that threat.
This is why our POAs for financial and health-care matters total around fifty pages. We want to help to anticipate as many nuances as possible, to ensure that when you need assistance, your documents will be there to avoid guardianships and to help you get the responsible financial coverage and health-care treatment you need.
A client came in recently with a healthcare POA from another state. She wanted to know whether it would do the job for her father. We said emphatically “no.”
– The document failed to specify the kind of health care the father would want; and
– It failed to comply with our state law, meaning that it likely wouldn’t work here; and
– It failed to protect the father’s agent from liability for a bad decision; and
– It failed to provide the agent with access to essential medical records; and
– It even failed to designate who should serve as an agent!
Our health-care documents do much, much more than that. Check your POAs to see whether they do all of the above – and if not, come see us. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.
by Dan McCarthy | Nov 3, 2021 | Estate Planning
It makes sense that more aging Americans have completed wills and estate plans compared to younger Americans. Still, a significant number — 19 percent of those over age 72 and 42 percent of those between 53 and 71, according to survey data — lack any type of estate plan.
Although managing these details can seem daunting, and even depressing, the task becomes far less unpleasant with proper understanding and planning. Estate planning is essential for seniors and for their family members to be prepared in the event of a loved one’s illness or passing.
If you or an aging loved one has been putting off estate planning, start with the basics and learn why it’s important to take the focus off of the negative and shift it to the positive benefits.
Understanding the meaning of “estate”
In addition to the fear factor of planning for illness and death, many seniors dismiss its importance because they don’t understand what “estate” means, or they believe it applies only to those with significant wealth. In reality, an estate includes anything a person owns — homes or other properties, bank accounts, automobiles and additional assets, and ownership of any licenses or patents.
A person’s estate also includes any liabilities such as mortgages. These debts will need to be settled before loved ones or beneficiaries receive any compensation or death benefits. An estate plan encompasses more than distributing assets and settling debts, however. It also outlines decisions about healthcare and other key things.
The estate plan’s role in self-advocacy
Estate plans help seniors establish important guidelines that allow them to advocate for themselves. This is essential for seniors who wish to retain their independence and protect their assets. In addition to creating wills and other important documents, an estate plan allows seniors to have a say in the quality of their long-term care — whether at home or in an assisted living facility — and to qualify for associated government benefits to help pay for that care. It also helps them to protect their life savings and outline their wishes should they become incapacitated.
Elder law attorneys can help clients develop strategies to enable seniors to better advocate for themselves in these scenarios.
What’s included in an estate plan?
A properly executed estate plan typically includes a Last Will and Testament, Living Will, and Medical and Financial Powers of Attorney. Let’s take a look at what each of these things is and the purposes they serve:
- Last Will and Testament: Allows a person to determine who will inherit assets and appoint an executor who will make sure wishes are carried out.
- Living Will: Allows a person to choose the type of care he or she wants should they become hospitalized and/or incapable of making decisions independently. A Living Will would, for example, outline a person’s wishes about certain medical treatments, such as blood transfusions, or whether or not they wish to be resuscitated.
- Medical Power of Attorney: Appoints someone — generally a spouse or family member — to make decisions on a person’s behalf about medical care and treatment.
- Financial Power of Attorney: Appoints someone — also typically a spouse or family member — who can make financial decisions on a person’s behalf. This includes allowing access to bank accounts to ensure bills and mortgages continue to get paid in the event of illness or incapacitation.
Estate planning also includes provisions for developing Trusts. Trusts allow seniors to set aside money for specific people or charities while avoiding the long, drawn-out process of probate. This allows heirs and beneficiaries to receive intended inheritances much more quickly.
While many trusts are revocable, meaning the senior can change or terminate the trust at any time, irrevocable trusts are often used to protect the assets of a senior. Whether an irrevocable trust is right for your situation depends on a number of factors, including your health, what type of care you wish to receive and how you will pay for any care you may need in the future.
If you or your loved one has been avoiding this important planning measure, now is the time to begin. Being proactive increases options and makes the process far less stressful than trying to initiate planning or make important decisions during a health crisis or death.
Cost is another reason seniors often cite for avoiding planning. However, elder law attorneys can tailor plans to specific needs, making them more affordable. If you need assistance or would like to talk about your specific situation, contact our Cincinnati office at (513) 815-7006.