September 11, 2017
What Estate Planners Want You to Know About Death and Dying
By Jeena Cho
I tend to think about death and dying quite often. Recently, several close friends were diagnosed with cancer and it brought up this topic in my mind again. However, the one event that really forced me to pause and consider this topic was a recent incident on a flight to D.C.
I got up to use the restroom and the next thing I knew, I was in the back galley of the airplane with two flight attendants standing over me, looking concerned. One woman kept repeating, "Are you okay?" Piecing together the conversations between the flight attendants and the passenger (who was standing behind me), I learned that I had lost consciousness and fortunately, didn't hit my head on my way down. A few minutes later, after a healthy dose of orange juice, I stood up and once again lost consciousness.
In that moment when I lost consciousness, the thought that flashed through my mind was, "Hmm, I wonder if this is how one dies."
This experience made me pause and think more deeply about death and dying. But perhaps more importantly, about the time between this moment and death. Over the next few weeks, I plan on exploring this topic from different angles but since I am a lawyer, I thought I'd start with the legal end of death.
When I interviewed estate planning lawyers about death and dying, this is what they shared.
1. It's normal to have emotions about planning for your death.
The first obstacle clients must work with in developing an estate plan is the mixed emotions regarding property transfers upon their death. Without an estate plan your assets may go to unintended beneficiaries with unnecessary tax and other liabilities upon your death. Some clients resist the process, although even coming to my office is a big step in estate planning which demonstrates a willingness to begin a dialogue. Many people do estate planning out of obligation, often fueled by a spouse or other interested family member. Others don't share this sense of obligation and don't want to be bothered. Some clients tackle estate planning head on and report breakthroughs in family communication and a great sense of accomplishment when the documents are finally signed.
- John O'Grady, estate planning attorney, San Fransisco, Calif.
2. No one gets a free pass. It's going to happen.
Death happens to everyone- some sooner than others. You are not immune. As cliché as it is, it is true that tomorrow isn't promised. So, just because you aren't ready to accept the fact that one day you will die, that it will happen, you should still be prepared - if not for you, for your loved ones who will be faced with making decisions for you.
- Carmen M. Rosas, estate planning attorney, Redwood City, Calif.
3. Plan for your death, for the sake of the living.
If you've ever lost a loved one, you know the pain that comes along with it. The loss alone is heartbreaking. Add in the decisions leading up to the death. Electing a person to make life-altering decisions. Selecting a funeral or burial or cremation location. Deciding on a memorial or a viewing to remember them by. Paperwork, attorneys, bills. It's emotional and stressful. By creating an estate plan ahead of time, you ease the chaos when you do die. Be self-less. Create an estate plan.
- Carmen M. Rosas, estate planning attorney, Redwood City, Calif.
4. Communicate your wishes.
The road to solid estate planning is paved with communication. Get your trusted loved ones and advisors involved. The fewer surprises to your survivors after your death, the less chance there will be confusion or disputes. An estate plan is a great idea regardless of your net worth.
- John O'Grady, estate planning attorney, San Fransisco, Calif.
5. Your plan is just that - a plan. It can change.
You will learn much by living with your plan for a while. Plans are made to be changed. Review all of your estate planning documents and beneficiary designations every 3-5 years and after any major life event (e.g. marriage/divorce, death, birth, significant change in financial situation, move or change in property ownership). You may amend your estate plans during your lifetime.
- John O'Grady, estate planning attorney, San Fransisco, Calif.
Of course, estate planning is simply one aspect of death and dying. What topics related to death and dying are on your mind? Please share in the comments.
Link to original article:
September 6, 2017
The Most Important Estate Planning Issue Boomers Need to Address
By Kelley Long
If you're like me, with parents who are retired but still very self-sufficient, concerns about elder financial abuse or my Boomer parents' inability to handle their own affairs is seemingly something that their generation needs to worry about, not me. But as I reflect this Mother's Day on how fortunate I am to still have both parents living (and quite robustly) into their mid-60's, I realize that this issue is no longer something for Other People. I need to have these conversations with my mom and dad right now while they are still operating at their best. While I dread the day that things change, acting like it won't happen won't make it any easier when one or both of them do ned additional help.
Living Well and Living Longer
By the year 2050, it is estimated that 1 out of every 5 Americans will be over the age of 65, with people aged 85+ the fastest growing demographic in the nation. The good news is that people are living longer, even with chronic diseases that used to lead to early death. (92% of seniors are living with at least one chronic disease; 77% with two or more.)
The challenge is that this requires different planning than the traditional practice of simply having a power of attorney in place to help in case of incapacity and making sure the will is up-to-date to include the intended heirs. As this demographic continues to grow, so will instances of fraud and financial abuse of seniors. As approximately 3.5 million Baby Boomers enter retirement each year, the time to make sure your estate planning documents protect you or your parents from fraud and abuse is now. In fact, experts recommend making a bulk of these major financial decisions by age 50.
Beyond the Basics
The big issue here is that when most estate plans are created, particularly with married couples, both spouses are of very sound mind and the natural inclination is simply to name each other as agents in case of incapacity. This is fine, but it's important to make sure that there are contingent situations addressed as well. For example, what happens it they divorce? Between 1990 and 2010, the divorce rate doubled for people over the age of 50 and more than doubled for those over 65. Or alternatively, consider a case where neither spouse is incapacitated in terms of being able to function in daily life, but both need assistance with things like paying bills due to declining writing abilities from Parkinson's or arthritis.
Having a trusted person named in legal documents to help with those things ahead of time is the best way to make sure that finances are protected without having to give up complete control. So how do you make sure that you, your parents or other aging loved ones have the right plans in place BEFORE they're needed? Here are some tips and things to consider.
You're Asking a Lot
First, it's important to consider what's really being asked of the person name as an agent. My grandparents named my CPA/CFO uncle as their power of attorney, correctly assuming he was best suited to handle financial affairs due to his profession. This worked out well, but was a major added burden to my uncle's life for the years that my grandparents resided in a nursing home. Had they needed this type of assistance earlier in life when my cousins were still home keeping my uncle busy, he may not have been able to perform the duties with the same level of care that my grandpa paid when he was handling them. Think about the imposition, both when you're selecting your own agent and in instances when you may be asked to serve and make sure the one you're naming is ok with this.
For people who don't have a spouse and/or capable children to name, there is an added challenge of identifying the best person. Our natural inclination is to think of relatives, but physical proximity is important and practically necessary. An attorney or accountant could be good back-ups, as long as the particular professionals named are younger. This is an instance where you actually don't want one of your peers to be helping you.
It's Not Just Mental Incapacity
Second, think outside of the typical "incapacity box" when creating documents. We tend to focus on extremes when we do our plans, but there's a strong chance that the power of attorney will be needed before complete incapacity strikes. The agent may need to step in jut to help sign checks or set up auto-bill paying for someone who can still make their own financial decisions, but just needs help carrying them out.
What You Need to Know Ahead of Time
Third, the best way to avoid causing financial havoc for yourself due to declining memory or by becoming a victim of fraud is to provide your agent with a baseline of what's normal. A recent study found that more than one third of long-term care policy holders were letting their policies lapse at age 65, just about the time when they may need them. Part of the reason for this lapse is likely due to memory problems. The best way to ensure that you keep important policies in effect is to have a back-up person "checking your work" to spot potential lapses before it's too late.
If you're personally named as someone's agent in a POA document, don't wait until the power kicks in to learn how your loved one's finances should be handled. One way to get a sense of what's needed ahead of time is to suggest that your loved one have their accountant prepare a monthly write-up of the bills that were paid, just so you can have an historical record when you do take over. That way your loved one continues to manage his or her own affairs, but you and the accountant can keep an eye out for signs of abuse or decline through changes in the normal cash flow activity.
The best person to assist with putting the documents in place is an estate planning attorney. Just be sure before you sit down with that attorney that you've thought through some of the less obvious reasons you may need a power of attorney and have those conversations far in advance of when they may be needed. No one wants to think about the day that they or their loved ones need added assistance with life, but the day will come and when it does, everyone will be glad that proper plans were made in advance.
Link to original article: https://www.forbes.com/sites/financialfinesse/2016/05/08/the-most-imporant-estae-planning-issue-boomers-need-to-address/#468246db68cc
August 29, 2017
The Costs of Dementia: For the Patient and the Family
A recent report from the Alzheimer’s Association states that one in nine Americans age 65 or older currently have Alzheimer’s. With the baby boomer generation aging and people living longer, that number may nearly triple by 2050. Alzheimer’s, of course, is just one cause of dementia—mini-strokes (TIAs) are also to blame—so the number of those with dementia may actually be higher.
Caring for someone with dementia is more expensive—and care is often needed longer—than for someone who does not have dementia. Because the cost of care in a facility is out of reach for many families, caregivers are often family members who risk their own financial security and health to care for a loved one.
In this issue of The ElderCounselor, we will explore these issues and steps families can take to alleviate some of these burdens.
Cost of Care for the Patient with Dementia—And How to Pay for It
As the disease progresses, so does the level of care the person requires—and so do the costs of that care. Options range from in-home care (starting at $46,332 per year) to adult daycare (starting at $17,676 per year) to assisted living facilities ($43,536 per year) to nursing homes ($82,128 per year for a semi-private room). These are the national average costs in 2016 as provided by Genworth in its most recent study. Costs have risen steadily over the past 13 years since Genworth began tracking them.
Care for a person with dementia can last years, and there are few outside resources to help pay for this kind of care. Health insurance does not cover assisted living or nursing home facilities, or help with activities of daily living (ADL), which include eating, bathing and dressing. Medicare covers some in-home health care and a limited number of days of skilled nursing home care, but not long-term care. Medicaid, which does cover long-term care, was designed for the indigent; the person’s assets must be spent down to almost nothing to qualify. VA benefits for Aid & Attendance will help pay for some care, including assisted living and nursing home facilities, for veterans and their spouses who qualify.
Those who have significant assets can pay as they go. Home equity and retirement savings can also be a source of funds. Long-term care insurance may also be an option, but many people wait until they are not eligible or the cost is prohibitive.
However, for the most part, families are not prepared to pay these extraordinary costs, especially if they go on for years. As a result, family members are often required to provide the care for as long as possible.
Financial Costs for the Family
Women routinely serve as caregivers for spouses, parents, in-laws and friends. While some men do serve as caregivers, women spend approximately 50% more time caregiving than men. The financial impact on women caregivers is substantial. In another Genworth study, Beyond Dollars 2015, more than 60% of the women surveyed reported they pay for care with their own savings and retirement funds. These expenses include household expenses, personal items, transportation services, informal caregivers and long-term care facilities. Almost half report having to reduce their own quality of living in order to pay for the care. In addition, absences, reduced hours and chronic tardiness can mean a significant reduction in a caregiver’s pay. 77% of those surveyed missed time from work in order to provide care for a loved one, with an average of seven hours missed per week. About one-third of caregivers provide 30 or more hours of care per week, and half of those estimate they lost around one-third of their income. More than half had to work fewer hours, felt their career was negatively affected and had to leave their job as the result of a long-term care situation. Caregivers who lose income also lose retirement benefits and social security benefits. They may be sacrificing their children’s college funds and their own retirement. Other family members who contribute to the costs of care may also see their standard of living and savings reduced.
Emotional and Physical Costs to Caregivers
In addition to the financial costs, caregivers report increased stress, anxiety and depression. The Genworth study found that while a high percentage of caregivers have some positive feelings about providing care for their loved one, almost half also experienced depression, mood swings and resentment, and admitted the event negatively affected their personal health and well-being. About a third reported an extremely high level of stress and said their relationships with their family and spouse were affected. More than half did not feel qualified to provide physical care and worried about the lack of time for themselves and their families.
Providing care to someone with dementia increases the levels of distress and depression higher than caring for someone without dementia. People with dementia may wander, become aggressive and often no longer recognize family members, even those caring for them. Caregivers can become exhausted physically and emotionally, and the patient may simply become too much for them to handle, especially when the caregiver is an older person providing care for his/her ill spouse. This can lead to feelings of failure and guilt. In addition, these caregivers often have high blood pressure, an increased risk of developing hypertension, spend less time on preventative care and have a higher risk of developing coronary heart disease.
What can be done?
Planning is important. Challenges that caregivers face include finding relief from the emotional stress associated with providing care for a loved one, planning to cover the responsibilities that could jeopardize the caregiver’s job or career, and easing financial pressures that strain a family’s budget. Having options—additional caregivers, alternate sources of funds, respite care for the caregiver—can help relieve many of these stresses. In addition, there are a number of legal options to help families protect hard-earned assets from the rising costs of long term care, and to access funds to help pay for that care.
The best way to have those options when they are needed is to plan ahead, but most people don’t. According to the Genworth survey, the top reasons people fail to plan are they didn’t want to admit care was needed; the timing of the long-term care need was unforeseen or unexpected; they didn’t want to talk about it; they thought they had more time; and they hoped the issue would resolve itself. Waiting too late to plan for the need for long-term care, especially for dementia, can throw a family into confusion about what Mom or Dad would want, what options are available, what resources can help pay for care and who is best-suited to help provide hands-on care, if needed.
Having the courage to discuss the possibility of incapacity and/or dementia before it happens can go a long way toward being prepared should that time come.
Watch for early signs of dementia. The Alzheimer’s Association (www.alz.org) has prepared a list of signs and symptoms that can help individuals and family members recognize the beginnings of dementia. Early diagnosis provides the best opportunities for treatment, support and planning for the future. Some medications can slow the progress of the disease, and new discoveries are being made every year.
Take good care of the caregiver. Caregivers need support and time off to take care of themselves. Arrange for relief from outside caregivers or other family members. All will benefit from joining a caregiver support group to share questions and frustrations, and learn how other caregivers are coping. Caregivers need to determine what they need to maintain their stamina, energy and positive outlook. That may include regular exercise (a yoga class, golf, walk or run),
a weekly Bible study, an outing with friends, or time to read or simply watch TV.
If the main caregiver currently works outside the home, they can inquire about resources that might be available. Depending on how long they expect to be caring for the person, they may be able to work on a flex time schedule or from home. Consider whether other family members can provide compensation to the one who will be the main caregiver.
Seek assistance. Find out what resources might be available. A local Elder Law attorney can prepare necessary legal documents, help maximize income, retirement savings and long-time care insurance, and apply for VA or Medicaid benefits. He or she will also be familiar with various living communities in the area and in-home care agencies.
Caring for a loved one with dementia is more demanding and more expensive for a longer time than caring for a loved one without dementia. It requires the entire family to come together to discuss and explore all options so that the burden of providing care is shared by all. We help families who may need long term care by creating an asset protection plan that will provide peace of mind to all. If we can be of assistance, please don’t hesitate to call.
August 28, 2017
Financial Abuse of Elderly is a Crime in Kansas
Kansas Legal Services
Thanks to a new law in Kansas, financial abuse of an elder is a serious crime and there are consequences.
Do you know someone who is being financially abused by a trusted person or power of attorney? It's not longer a "family issue." It is a crime.
A law was passed during last year's legislative session. It makes it a crime to take money from elders who are 70 years or older and for powers of attorney to misuse funds.
Indicators of financial abuse
A recent contact expresses an interest in finances, promises to give care, or cozies up with the elder.
A relative or caregiver has no visible means of support and is overly interested in the elder's financial affairs.
A relative or caregiver is hesitant to spend money for needed medical treatment for the elder.
The utility and other bills are not being paid
The elder's placement, care, or possessions clash with the size of his or her estate.
A relative or caregiver isolates the elder, makes excuses when friends or family call or visit, and does not give the elder messages.
A relative or caregiver gives unlikely reasons about finances, and the elder is unaware of or unable to explain the arrangements made.
Checking account and credit card statements are sent to a relative or caregiver and are not open to the elder.
At the bank, the elder is escorted by a relative or caregiver who refuses to let the elder speak for him- or herself. The elder appears nervous or afraid of the person going with him or her.
The elder is concerned or confused about "missing money."
There are suspicious signatures on the elder's checks, or the elder signs checks and another party fills in the payee and amount sections.
There is an odd amount of banking activity, mainly just after joint accounts are set up or someone new starts helping with the elder's finances.
A will, power of attorney, or other legal document is drafted, but the elder does not understand its effects.
Jane L. Williams, LLC can provide the necessary documentation to protect yourself and your loved ones from family member financial abuse and can recommend a criminal lawyer if you or a loved one is already suffering from a family member’s misconduct. Please call us at 816-249-2122 or email Sally at firstname.lastname@example.org to make an appointment.
Where to report abuse:
In the event financial abuse or any type of abuse is suspected, please contact the following right away:
Kansas Department for Children and Families/Adult Protective Services
Please share the video below and help spread the word about this important issue in Kansas!
Video about financial abuse
Another resource for you is LeadingAge Kansas, an association of 160 not-for-profit aging services providers that serve the needs of aging Kansans. LeadingAge Kansas advances policies, promotes practices and learning that empowers their members to help seniors live fully as they age.
Check out the KLS Services for Seniors page.
August 24, 2017
Top Reasons Everyone Needs a Comprehensive Power of Attorney
The benefits of a highly detailed, comprehensive power of attorney are numerous. Unfortunately, many powers of attorney are more general in nature and can actually cause more problems than they solve, especially for our senior population. This issue of the ElderCounselor highlights the benefits of a comprehensive, detailed power of attorney, including some of the provisions that should be included. A proper starting point is to emphasize that the proper use of a power of
attorney as an estate planning and elder law document depends on the reliability and honesty of the appointed agent.
The agent under a power of attorney has traditionally been called an "attorney-in- fact" or sometimes just "attorney." However, confusion over these terms has encouraged the terminology to change so more recent state statutes tend to use the label "agent" for the person receiving power by the document.
Let’s look at the top benefits of having a comprehensive durable power of attorney.
1. Provides the ability to choose who will make decisions for you (rather than a court).
If someone has signed a power of attorney and later becomes incapacitated and unable to make decisions, the agent named can step into the shoes of the incapacitated person and make important financial decisions. Without a power of attorney, a guardianship or conservatorship may need to be established, and can be very expensive.
2. Avoids the necessity of a guardianship or conservatorship.
Someone who does not have a comprehensive power of attorney at the time they become incapacitated would have no alternative than to have someone else petition the court to appoint a guardian or conservator. The court will choose who is appointed to manage the financial and/or health affairs of the incapacitated person, and the court will continue to monitor the situation as long as the incapacitated person is alive. While not only a costly process, another detriment is the
fact that the incapacitated person has no input on who will be appointed to serve.
3. Provides family members a good opportunity to discuss wishes and desires.
There is much thought and consideration that goes into the creation of a comprehensive power of attorney. One of the most important decisions is who will serve as the agent. When a parent or loved one makes the decision to sign a power of attorney, it is a good opportunity for the parent to discuss wishes and expectations with the family and, in particular, the person named as agent in the power of attorney.
4. The more comprehensive the power of attorney, the better.
As people age, their needs change and their power of attorney should reflect that. Seniors have concerns about long-term care, applying for government benefits to pay for care, as well as choosing the proper care providers. Without allowing, the agent to perform these tasks and more, precious time and money may be wasted.
5. Prevents questions about principal's intent.
Many of us have read about court battles over a person's intent once that person has become incapacitated. A well-drafted power of attorney, along with other health care directives, can eliminate the need for family members to argue or disagree over a loved one's wishes. Once written down, this document is excellent evidence of their intent and is difficult to dispute.
6. Prevents delays in asset protection planning.
A comprehensive power of attorney should include all of the powers required to do effective asset protection planning. If the power of attorney does not include a specific power, it can greatly dampen the agent's ability to complete the planning and could result in thousands of dollars lost. While some powers of attorney seem long, it is necessary to include all of the powers necessary to carry out proper planning.
7. Protects the agent from claims of financial abuse.
Comprehensive powers of attorney often allow the agent to make substantial gifts to self or others in order to carry out asset protection planning objectives. Without the power of attorney authorizing this, the agent (often a family member) could be at risk for financial abuse allegations.
8. Allows agents to talk to other agencies.
An agent under a power of attorney is often in the position of trying to reconcile bank charges, make arrangements for health care, engage professionals for services to be provided to the principal, and much more. Without a comprehensive power of attorney giving authority to the agent, many companies will refuse to disclose any information or provide services to the incapacitated person. This can result in a great deal of frustration on the part of the family, as well as lost time and money.
9. Allows an agent to perform planning and transactions to make the principal eligible for public benefits.
One could argue that transferring assets from the principal to others in order to make the principal eligible for public benefits-- Medicaid and/or non-service- connected Veterans Administration benefits-- is not in the best interests of the principal, but rather in the best interests of the transferees. In fact, one reason that a comprehensive durable power of attorney is essential in elder law is that a Judge may not be willing to authorize a conservator to protect assets for others while enhancing the ward/protected person's eligibility for public benefits. However, that may have been the wish of the incapacitated person and one that would remain unfulfilled if a power of attorney were not in place.
10. Provides immediate access to critical assets.
A well-crafted power of attorney includes provisions that allow the agent to access critical assets, such as the principal’s digital assets or safety deposit box, to continue to pay bills, access funds, etc. in a timely manner. Absent these provisions, court approval will be required before anyone can access these assets. Digital assets are also important because older powers of attorney did not address digital assets, yet more and more individuals have digital accounts.
11. Provides peace of mind for everyone involved.
Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority for performing basic tasks, like writing a check or arranging for home health services. Knowing this has been taken care of in advance is of great comfort to families and loved ones.
This discussion of the Reasons Why Everyone Needs a Comprehensive Power of Attorney could be expanded by many more. Which benefits are most important depends on the situation of the principal and their loved ones. This is why a comprehensive power of attorney is so essential: Nobody can predict exactly which powers will be needed in the future. The planning goal is to have a power of attorney in place that empowers a succession of trustworthy agents to do whatever needs to be done in the future. Please call us if we can be of assistance in any way or if you have any questions about durable powers of attorney.
August 15, 2017
The Impact of Caregiving on Women
By Valerie Peterson, J.D.
Women routinely serve as caregivers for spouses, parents, in-laws and friends. In fact, an estimated 66% of all caregivers are female.  The value of the informal care women provide has been estimated as high as $188 billion annually.  While some men serve as caregivers, women spend approximately 50% more time caregiving than men. 
When it comes to caring for a loved one with dementia, a recent study showed the out-of-pocket cost for the patient with dementia were the highest of any other disease, in large part due to the need for caregivers – the cost of which is not covered by Medicare.  In responding to the results of the study, Dr. Kenneth Covinsky, a geriatrician at the University of California in San Francisco stated, ‘It’s stunning that people who start out with the least end up with even less. It’s scary. And they haven’t even counted some of the costs, like the daughter who gave up time from work and is losing part of her retirement and her children’s college fund.”
The financial impact on women caregivers is quite substantial. It reduces work hours by around 41%, and can result in a financial loss of over $324,000 based on lost wages and social security benefits.  And worse, a 2004 study conducted by Rice University found that women who are family caregivers are 2.5 times more likely to live in poverty, and 5 times more likely to receive Supplemental Security Income (SSI). 
The mental and physical effects of caregiving have also been well-documented. Increased stress, anxiety and depression are common effects of caregiving. When
caring for a spouse, women are nearly 6 times as likely to suffer depressive or anxious symptoms as non-caregiver spouses.  Providing care to someone with dementia increases the levels of distress and depression higher than caring for someone without dementia. 
Physical effects include higher blood pressure, increased risk of developing hypertension, less time spent on preventative care and a higher risk of developing
coronary heart disease. 
It is clear that women are at great risk when providing care to a loved one. Their financial stability is at risk, and they are at greater risk of developing mental and
physical ailments. Are they at risk for negative long-term effects as well, including a higher death rate? If you are interested in additional information on this topic, a recent study titled, “The Long-Term Effects of Caregiving on Women’s Health and Mortality” was published in the Journal of Marriage and Family in October, 2016.
 Women and Caregiving: Facts and Figures, https://www.caregiver.org/women-and-caregiving-facts- and-figures.
 Costs for Dementia Care Far Exceeding Other Diseases, Study Finds. New York Times, Oct. 26, 2015.
 Women and Caregiving: Facts and Figures, https://www.caregiver.org/women-and-caregiving-facts- and-figures.
 Physical and Mental Health Effects of Family
August 7, 2017
THE COLLEGE PLAN
If your son or daughter is heading to college, you have worked out transportation, bedding for their dorm room, a weekly or monthly spending allowance and many other practical items. By this time, you have undoubtedly checked most everything on the to-do list as your child gets ready to launch into a college life.
However (and it is a big HOWEVER), before your child heads out of the house, there are some important, yet often overlooked, necessary legal preparations to make the transition smooth.
An 18-year- old College Student is Considered a Legal Adult
You are the same parent you have been through all of those 18 years, but your legal right to make decisions for your child changes abruptly. Except in unusual
circumstances, you will no longer have automatic access to your child’s health and financial records - even if you are paying their tuition. Privacy laws, like HIPAA, will limit your ability to obtain this information. If the laws are followed as they should be, you will be unable to learn about your child’s condition or health, even if he/she is hospitalized. As a parent, you will be unable to make healthcare decisions or take financial actions to protect your child’s health and assets once your child is 18. Establishing your legal ability to gain access to your child’s medical and financial records and to be able to act on those accordingly is critical. For that reason, we recommend taking the following steps before (or as soon after as possible) your child leaves for school:
1. Name a Healthcare Agent under a Durable Power of Attorney for Healthcare
Have your child sign a durable power of attorney for health care, appointing you or another responsible adult the power to access his or her medical information and make medical decisions on your child’s behalf, if necessary. Without having this in place, you will need court approval (a Court Order) to act on his or her behalf if your child is in an accident and becomes, even temporarily, disabled. This document will also allow doctors and other healthcare providers to share information about your child’s condition.
As a part of the College Plan, we offer a service, including a card to keep in their wallet or with their phone, that will allow access to all of the necessary information for a healthcare facility or provider to know that you may make medical decisions and be privy to all healthcare information for your child and how to contact you in an emergency.
2. Appoint a Durable Power of Attorney
Arrange for your child to sign a durable power of attorney to appoint you, or another responsible family member or friend, as an agent to act on his or her behalf, if need be, in a variety of financial and legal matters. For example, if your child is studying abroad for a semester, having a power of attorney makes it easier for you to contact the local embassy or wire money from your child’s bank account. It could also be important if you need to sign a legal document, such as a lease, in your child’s absence.
This document is also part of our College Plan, which includes a card to your child to carry with him or her so that you or your child can let a financial provider
know that you have been appointed the Financial Agent for your child and may have access to and make decisions about your child’s financial information.
3. Make Your Wishes Known through a Living Will (Advance Directive)
Through signing this document, your child will be expressing what specific areas of living he or she considers important to maintain a quality of life. This document, in
tandem with the Durable Power of Attorney for Healthcare, is a gift your child gives to you to provide you guidance if you are ever put in the untenable position of making end of life decisions.
As a part of the College Plan, this document is also part of the service we offer to be included with the information on a card your child can carry with the necessary
information for a healthcare facility or provider to know that you may make medical decisions and be privy to all healthcare information for your child.
Please reach out to as today to schedule a time for you and your child to take advantage of the College Plan that includes these three critical documents. The
cost for all three documents is only $350 and includes one year of the service discussed above providing access to this important information from anywhere.
CALL US AT 816-249- 2122 or E-MAIL JANE at email@example.com or SALLY at firstname.lastname@example.org. Just say that you want to make an appointment (by
phone or in person) to discuss the College Plan.
January 24th, 2017
What to Expect From the First 100 Days of the Trump Presidency
By Valerie Peterson, J.D.
Repeal of the Affordable Care Act
Prior to being elected, Donald Trump published a contract with voters
outlining what he would do during his first 100 days. One promise Trump made that has been getting a lot of attention lately and that could have significant impact on seniors and persons with disabilities is the repeal and replacement of the Affordable Care Act (“Obamacare”).
In fact, the first executive order
signed by President Trump following his inauguration addressed the Affordable Care Act. In the order, relevant federal agencies to waive or defer provisions that “impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”
In the explanation in his contract with voters, Trump states he will work with Congress to fully appeal Obamacare and replace it with Health Savings Accounts, the ability to purchase health insurance across state lines and let states manage Medicaid funds. Letting states manage Medicaid funds means either a Medicaid block grant, or per capita spending on Medicaid.
Medicaid Block Grants or Per Capita Caps
The per capita model would not account for changes in the costs per enrollee beyond the growth limit, which would be set below the projected rates of growth under current law. Under a block grant, states would be given a set amount of Medicaid funding based in part on the state’s current Medicaid spending, rather than setting a per enrollee cost.
While the cap could control federal spending on Medicaid and give states additional flexibility, it will also provide states with an incentive to reduce Medicaid payment rates and restrict benefits. Enrollee with high costs could be prevented from qualifying or saddled with high premiums or cost sharing that is unaffordable.
Currently, Medicaid matches what a state pays out for Medicaid benefits. A Medicaid beneficiary does have a share of cost, but it is limited to their income, less certain exclusions (and can vary with the Medicaid program that person is enrolled in). The per capita cap could allow states to charge much higher costs and in effect restrict enrollees from receiving benefits who need it the most.
The Urban Institute, which has analyzed Medicaid block grants and per capita proposals, notes in an article published by Forbes.com
that such policies would reduce states’ authority to make policy decisions over their own programs while threatening benefits that low-income people often need but can’t afford. In addition, block grants would favor states with higher incomes since they spend more on Medicaid and would therefore get more money allotted by way of a larger block grant.
While per capita caps or block grants will save the federal government money, several negative consequences could occur: 1) Millions of current Medicaid enrollees will lose their benefits. 2) Millions of Medicaid applicants will be denied eligibility and will have no way to pay for care or to obtain insurance. 3) States will have increased expenses to make up the difference from funding they would have received from the federal government.
Medicaid block grants are nothing new. They have been proposed several times over the past 20+ years but never implemented. While not likely to be implemented in the first 100 days, this is an issue to watch as alternatives to Obamacare are explored and negotiated by Republican Congressional leaders and President Trump.
Confusion over Repeal of Obamacare
Media reports the last week have focused on what appears to be disparity between what President-elect Trump says about repealing Obamacare and how it will be replaced, and what Republican leaders are saying publicly. A New York Times article
highlighted a recent Congressional Budget Office report that concluded 18 million could lose their health insurance within a year if Obamacare is repealed.
Trump has stated that he is working on a replacement plan. Republican leaders have stated they are working on a replacement plan. No one has published a plan yet, and it is unlikely we will see anything passed within the first 100 days of the Trump Presidency.
The next question then becomes what part of the repeal and replace process will require Congressional approval. This New York Times article
breaks down each promise made in Trump’s contract to voters and designates it as needing congressional approval, may need approval, or does not need approval. While some parts of repealing Obamacare may be done through the budget reconciliation process, a full repeal and replace will require Congressional approval.
One certainty is that the next 100 days and all of 2017 are shaping up to address critical issues affecting seniors, persons with disabilities, and Veterans. Another certainty is that elder law attorneys will become even more critical in the coming months and years as new laws are passed.
Valerie L. Peterson, J.D.
Valerie joined ElderCounsel in January of 2008 and serves as Chief Executive Officer. Prior to joining ElderCounsel, Valerie was a practicing elder law attorney in Ft. Lauderdale and Miami and the owner of Peterson Law Office, P.A. Valerie was a litigator for several years after law school, but decided to focus her practice on elder law after she experienced firsthand the challenges of caring for an elderly loved one.
December 21st, 2016
In these divisive times, please consider the words of President Abraham Lincoln as you celebrate the holidays with family and friends:
“We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”
Abraham Lincoln, 16th President of the United States of America,
in his 1st inaugural address on 04 March 1861.
September 15th, 2016
BEER & BBQ BENEFIT 2016
Beer and BBQ Benefit for domestic abuse awareness this Saturday, September 17, 2016, from 7 – 10 p.m. for which I am proud to be a sponsor. All proceeds from the event go to SafeHome and Rose Brooks Center. I am providing two silent auction items. One is a pair of tickets to see the Kansas City Chiefs v. New Orleans Saints on Oct. 23, 2016, including parking (value: $400), and the other is a will-based estate planning package (value: $1,050).
For more information: http://eepurl.com/caMRh9
For a list of sponsors and auction items: http://artatsuite100.com/beer-bbq-benefit/
It will be a fun event for a good cause, including food, drink, art, and entertainment. Please stop by as my guest.
September 15th, 2016
Where Clinton and Trump Stand on Caregiver and Long-Term Care
What the candidates have said, or not said, on these vital topics: CLICK HERE
Thank you for joining us for this four-part series of blog posts on where presidential candidates Hillary Clinton and Donald Trump stand on key issues of interest to Americans over 50. Please give me a call at 816-249-2122 if you would like to discuss how you can plan ahead to avoid losing all or most of your assets if long-term care becomes necessary.
September 12th, 2016
Where Clinton and Trump Stand on Retirement Security
They haven't said much, but here's what we do know: CLICK HERE
Look for the final story of this 4-part series this Thursday, ‘Where Clinton and Trump Stand on Caregiver and Long-Term Care' and give me a call at 816-249-2122 if you would like to discuss how you can plan ahead to protect your assets.
September 8th, 2016
Where Trump and Clinton Stand on Health Care and Medicare
Click Here for The candidates' views on these vital issues for boomers and Gen X'ers
Look for Part 3 of this 4-part series next Monday, ‘Where Clinton and Trump Stand on Retirement Security’ and give me a call at 816-249-2122 if you would like to discuss how you can plan ahead for future healthcare costs.
September 5th, 2016
August 10th, 2016
Social Security: Where Clinton and Trump Stand
A head-to-head look at their plans for the retirement program: Click here for full article.
Look for Part 2 of this 4-part series this Thursday, ‘Where Trump and Clinton Stand on Health Care and Medicare’ and give me a call at 816-249-2122 if you would like to discuss how you can plan ahead to avoid losing all or most of your assets to a Medicaid spend down if nursing home care becomes necessary.
Click link above for full article via NYTimes.com
July 27th, 2016
Are Handwritten Intentions Enforceable? Princess Diana Thought So…
Princess Diana of Wales was one of the world’s most loved celebrities – and one of the richest. Her tragic death in 1997 was world news. The majority of her estate, reportedly worth $40 million at the time of her death, was divided between Prince William and Prince Harry in her estate plan.
However, she also wrote a “letter of wishes” that directed her executors to give a number of personal effects to her godchildren. Those executors, her mother and her sister, went to court and had it ruled unenforceable.
Holographic Wills – Sometimes Enforceable, Sometimes Not
Princess Diana’s letter of wishes is similar to what’s known as a “holographic” will in the United States. In its most simple terms, it is a handwritten
document which may or may not have to be signed.
State laws vary on whether holographic wills can be enforced and how they must be prepared. Approximately half of U.S. states allow them and those require the matter to be probated; however, holographic wills are not enforceable in either Kansas or Missouri.
In states where holographic wills are valid, some of the issues which frequently arise concerning holographic wills include:
Validity. Did the decedent write the will? In contested cases, handwriting experts are often used to determine validity.
Undue Influence. Was the decedent unduly influenced to create the will? That’s difficult to prove – or disprove – as they do not have to be witnessed.
Intentions. Does the will accurately describe the decedent’s intentions? Again, without witnesses (creating an actual last will and testament generally requires two), that becomes difficult to answer.
The question becomes – if you believe that no one will contest your holographic will (and it is legal in your state), should you skip the lawyers altogether? The answer is NO.
Don’t Subject Your Wishes to Scrutiny
The whole purpose of creating a document, any
document, which spells out your intentions upon death is to make it enforceable. Although last will and testaments still go through probate, they provide the court with a signed and witnessed document which is likely to reflect your intentions. Holographic wills, in Kansas and Missouri, will not hold up in court and your wishes are not likely to be followed.
The bottom line is that creating a will, a trust, or any other type of estate planning document is easy – when handled by an estate planning attorney. In effect, the process is simple and consists of having a conversation about your intentions, listing assets, and creating a legal document which will carry those intentions out. Sadly, Princess Diana’s godchildren got nothing. Don’t let someone else decide what you did, or did not, intend.
Contact our office at 816-249-2122
and we’ll show you which types of estate planning documents are best for you and your goals
July 13th, 2016
June 30th, 2016
Big Bang Theory Star’s “Ironclad” Prenup Challenged: How Does Yours Compare?
The Big Bang Theory actress Kaley Cuoco is one of the highest paid actresses on television. She earns one million dollars per episode and has a net worth of $44 million. Before she married tennis star Ryan Sweeting in 2013, Cuoco asked him to sign a prenuptial agreement (“prenup”).
After less than two years of marriage, Cuoco filed for divorce. She assumed the prenup would be valid. However, Sweeting alleges that the prenup shouldn’t be enforced and he wants spousal support. So, is The Big Bang Theory star’s prenup ironclad? A better question might be – is any?
Cuoco Was Smart, But…
Cuoco was certainly smart to have Sweeting sign a prenuptial agreement as his net worth was only about two million dollars versus her 44 million. However, while a well-written prenup generally addresses asset division and support issues, they are not always ironclad.
In this case, Sweeting alleges that his circumstances have substantially changed due to numerous sports injuries and an addiction to pain killers which have prevented him from earning a living as a tennis player. So, while he didn’t need support when the prenup was signed, he does now.
3 Ways to Invalidate a Prenup
There are generally three ways to invalidate a prenup, by proving:
This is a legal term of art meaning that, under the circumstances, it would be grossly unfair to enforce the document. To overcome it, Cuoco would likely have to prove that Sweeting was represented by an independent attorney who advised him of the consequences before signing.
Legal contracts can be deemed void when one party was coerced into signing it. In its harshest terms, that equates to being forced to sign something at gunpoint. In this case, it means that either Sweeting wasn’t given enough time to read it or didn’t voluntarily sign it.
Sweeting could also allege that Cuoco lied about her net worth and that, based on her fraudulent activity, the prenup shouldn’t be enforced.
If Cuoco’s attorney did his or her job correctly, which seems to be the case, it’s most likely that she’ll prevail.
Don’t Risk Your Wealth!
Prenuptial agreements, part of a strong estate plan, should always be prepared by experienced attorneys (a different one for each party) who know how to comply with the laws of that particular state and take into account what changes in the relationship might affect the validity of the prenup.
Today, 50% of all first marriages end in divorce; more than 70% of all second marriages do so. It makes sense to plan for the worst and hope for the best. Certainly, don’t risk your wealth and future by failing to have as ironclad a prenup (or “postnup” – an agreement made after marriage) as possible. It’s easier to accomplish than you would think and we can provide you with the tools you need to do just that.
If you are contemplating marriage, please contact our office immediately by email at email@example.com or call us at 816-249-2122 to make sure you're protected.
Celebrities Who Failed to Recognize Unborn Children in Their Wills: A Teachable Lesson
Having an estate plan that protects and provides for your loved ones is not only smart, it’s necessary. Without one, your family, friends, or the charitable organizations you wish to provide for may not receive your gifts.
It’s also important to remember to update
your estate planning documents whenever something changes which would affect your intentions.
Michael Crichton. Crichton was a best-selling author, physician, producer, director, and screenwriter. He was most known for his work in science fiction including books such as Jurassic Park, Andromeda Strain, The Lost World, and many more.
Sadly, he died of cancer in 2008 leaving behind a grown daughter from a previous marriage as well as his current wife, Sherri Alexander, who was pregnant with his son. As a self-admitted workaholic, Crichton never got around to updating his estate plan to provide for his unborn son.
When he passed, his net worth was approximately $175 million. Sherri Alexander filed a lawsuit against the estate to include her son in the will. However, Crichton's grown daughter, Taylor, opposed the lawsuit and a long and drawn out court battle ensued. A judge ruled that the son would inherit, but it likely cost millions of dollars in attorneys’ fees and much stress before that decision was made.
Heath Ledger. Ledger, an Australian director and actor, was most known for his role as the Joker in Dark Knight. Although only 28-years-old, his estate had a net worth of approximately $16 million. His will left his entire estate to his parents and three sisters. He failed to update his will even when he had a child (Matilda) with Michelle Williams and died from an accidental overdose of prescription drugs in 2008.
The ensuing family legal battles lasted for over five years. Similar to Crichton’s situation, Ledger’s daughter was
able to inherit – but again, not without spending a lot of money on litigation.
No One Likes to Think About Death, But It’s Necessary
Most people don’t like to think about their own death and dealing with estate planning documents often forces us to do just that. However, as these situations show, it’s an important and necessary task to undertake.
Find out how we can help you
protect your loved ones whenever you’re facing a pregnancy, birth, marriage, divorce, or any of the life changes which can affect your estate by contacting us for a free consultation at firstname.lastname@example.org
or calling 816-249-2122.
June 22nd, 2016
Did Whitney Houston Leave Too Much Money to Bobbi Kristina?
Whitney Houston’s estate was worth approximately $20 million when she died – plenty to meet the needs of her only daughter – Bobbi Kristina. Sadly, only a few years after Houston’s death, Bobbi Kristina died as well.
Although Bobbi Kristina’s previous boyfriend, Nick Gordon, is still a suspect in her murder, many say that having access to so much money at a young age was a contributing factor. Sadly, Houston’s estate planning mistakes are all too common.
Aunt & Grandmother Say Will Did Not Depict Houston’s Intentions
Houston’s aunt and grandmother filed a lawsuit to re-write the will as they say it didn’t accurately depict what Whitney really
wanted for Bobbi-Kristina. They claimed that she was too young to handle so much money.
Although they likely had the best of intentions, probate courts must follow the terms of the actual will or trust documents, not what the person who died might have
Whitney Houston’s will was created in 1993, specifying that a trust would be created after she died for any children she may have (so before Bobbi-Kristina was even born) so long as they were minors. Unfortunately, she never updated her will before she died.
Inheriting Money at a Young Age is Never a Good Idea
Whether this tragedy could have been averted if Bobbi Kristina’s distributions were delayed until she was older is anyone’s guess. The bottom line is that inheriting large sums of money at a young age is generally never a good idea. Although the young beneficiary might be responsible, young people can be easily manipulated by others.
While it’s clear that Houston could have better protected that money with a stronger estate plan, she’s certainly not the only one guilty of not following through. In fact, many of us have the best intentions, but simply don’t make the time to create – and update – proper estate planning documents that can help beneficiaries.
Set Your Beneficiaries Up for Success!
You do have the power to set your young beneficiaries up for success. In most cases, that means creating a trust that allows them access to money over time and can be managed by someone you trust and has their best interests at heart.
We can provide you with the tools you need to protect your loved ones – whatever your situation may be. As Houston’s case shows, ignoring estate planning issues can have tragic consequences. Contact us today at 816-249-2122 or email@example.com
and let’s get started protecting you and those you love.
June 16th, 2016
The Perils of Promises...Marlon Brando’s Story
Legendary Oscar-winning actor Marlon Brando left the bulk of his estate (worth approximately $26 million) to his producer and other associates.
Brando created a valid last will and testament. However, he did not include his longtime housekeeper Angela Borlaza – who later sued alleging that Brando promised that she would inherit a home from him when he died.
A Promise Is A Promise…
While a promise is a promise, not all promises are legally equal. In the courtroom, an oral promise is usually not treated the same as a written promise. In this case, Brando either never promised Borlaza anything or promised to give her the home, but never got around to putting it in his will (or in a written contract). Borlaza claimed a promise about a home was made and sued his estate for $627,000.
However, the alleged promise was oral. The law generally favors written evidence when it comes to estate planning matters, so the court examined only what was written in Brando’s will on the assumption that he made all of his wishes known. Borlaza eventually settled the matter for $125,000, but she was lucky to get even that.
Oral promises about inheritances are typically not legally valid and usually only introduce confusion and uncertainty about formal estate planning documents (such as a will or trust). Courts can – and reasonably must – rely upon the documents, like a will, when probating an estate. Although you might be trying to save money or time by promising inheritances to family members, friends, or others, but you aren’t doing anyone a favor. Luckily, there is a way to make your promises and wishes legally valid.
Put It in Writing - The Key to Making Promises Work
Make sure that your loved ones receive everything you promised them by putting your wishes in writing through a last will and testament, a trust, or other estate planning tool. Don’t rest on your laurels. It is imperative to update your estate planning documents when any significant or life changing events occur such as:
● a new oral promise you made to someone
● circumstance changes (change in health, wealth, or state of residence)
● income changes
Need help putting your wishes in writing? You’re in the right place. Contact our office today and let us help you decide what type of estate plan might work best for your situation. It’s easier than you think and will give you the peace of mind that your loved ones aren’t forgotten. www.jlwlawfirm.com
Today, June 15, 2016 is World Elder Abuse Awareness Day
I am grateful for all of you who provide care and support for those who have provided the same for you or others when they were able to do so.
Please take a moment to check on those you love and care about, wherever they may be.
June 8th, 2016
Don’t Burden Your Family! 4 Essential Purposes of a Trust...
As we learn from Prince’s mistakes, there are also lessons to be learned from other celebrities’ estate planning horror stories:
Michael Jackson’s Estate Pulled into Seemingly Endless Probate Court Battles
Michael Jackson, the “King of Pop,” had always been a controversial superstar. Over the years, he became the father of three children, Prince Michael Jackson II, Paris-Michael Katherine Jackson, and Michael Joseph Jackson, Jr.
While Jackson created a trust to care for his children and other family and friends, he never actually funded it. The result? Embarrassing and seemingly endless probate court battles between family members, the executors, and the IRS.
4 Essential Purposes of a Trust
A trust is a fiduciary arrangement which allows a third party (known as a trustee) to hold assets on behalf of beneficiaries. There are four primary benefits of trusts:
Avoiding probate. Funded trusts are not subject to probate. However, unfunded or underfunded trusts, just like wills, generally must go through probate.
Maintaining privacy. Probate is a matter of public record. However, since trusts aren’t subject to probate, privacy is maintained.
Mitigating the chance of litigation. Since trusts are not subject to the probate process, they are not a matter of public record. Therefore, fewer people know estate plan details – mitigating the chance of litigation.
Providing asset protection. Assets passed to loved ones in trust can be drafted to provide legal protection so assets cannot be easily seized by predators and creditors.
While these are arguably the most essential purposes, trusts can also affect what you pay in estate taxes as well.
Sadly, Jackson could not take advantage of any of these benefits. Although he created a “pour-over” will, which was intended to put his assets into a trust after his death, the “pour-over” will, like any other will, still had to be probated.
The probate, along with naming his attorney and a music executive as his executors (instead of family members), fueled a fire that could have been avoided with more mindful planning. Given the size of Jackson’s estate, it’s no surprise that everyone wanted a piece of the pie.
Don’t Burden Your Family!
Losing a loved one is difficult enough without having to endure legal battles afterward. In Jackson’s situation, properly retitling his assets into his trust would have reduced litigation and legal fees, and helped provide privacy for his survivors. His situation, although it deals with hundreds of millions of dollars, applies to anyone who has assets worth protecting. In other words, it likely applies to everyone!
There are many types of trusts and estate planning tools available to ensure that you don’t burden your family after your death. We’ll show you how to best provide for and protect your loved ones by creating the type of estate plan which is tailored to fit your needs.