Downs Law Firm, P.C.
I have appointed my oldest son as agent using a durable power of attorney form I got on the Internet. I want to be sure he understands his responsibilities if he has to manage my money and pay my bills when I become ill.
It was reported on the news recently that some of Aretha Franklin’s family members have found what they believe to be her will. It was handwritten, stained, and crumpled up in a couch. The courts may or may not choose to honor it, depending on whether or not they are able to verify its authenticity.
These documents could save money but can lay estate planning traps.
While most of us have heard of a power of attorney, many have misconceptions about them.
While there are differing reasons for this, ranging from drug use or inability to care for the child, various legal issues arise when grandparents are the primary caretakers.
When you have finally decided to move from home to a senior retirement community that has levels of care—or when moving to a personal care/assisted living community—you and your family might not be in the mood to read legal agreements.
No matter how smart you are, you can still become a victim of elder abuse as you age. Who you trust to help you can have devastating consequences if you don’t choose wisely. Mary Weiss has endured the violent death of her son, four strokes and a heart attack. Now she is facing the loss of her home and retirement savings, because of suspected financial elder abuse, according to Fox 9 in “Woman, who helped change research protocols at U of M, allegedly loses savings to caregiver.” The person she depended on throughout it all, is the one who is suspected of taking advantage of her trusting nature. She says she was financially ruined and her nest egg of $150,000 is gone. Debt from credit cards and loans taken out in her name without her consent is mounting. Weiss gained international attention for her battle with the University of Minnesota researchers who ran a research study of a psychiatric drug. Her son took his own life, while enrolled in the study. Because of her fight, the University made a number of changes to its research programs. The man she believes has ripped her off stood by her during that battle, speaking to reporters on her behalf. However, now he has been charged with one count of theft by swindle by the Washington County Attorney, following an investigation by the Cottage Grove Police Department. Howard lived with Weiss, although they were not romantically involved, for 10 years and had become her caregiver. She had suffered a series of strokes and gave him power of attorney over her financial matters. Weiss knew that Howard had a record, including a theft by swindle conviction, but she never thought he would do something bad to her. It was Weiss’ niece who discovered the problem this past spring, when she was going through a year’s worth of bank statements. ATM withdrawals, lottery ticket purchases, loans and credit cards were all done in her name. Washington County Human Services did a separate investigation and notified Weiss that an allegation of financial exploitation had been substantiated. Howard denies taking anything without Weiss’ consent. Weiss is currently living in a nursing home and is recovering from a fall. She said that she would like to return to her townhome but is not sure she will be able to afford to do that. She wants others to understand that this can happen to anyone, even with full control of their senses and no dementia. Reference: Fox 9 (Oct. 22, 2018) “Woman, who helped change research protocols at U of M, allegedly loses savings to caregiver”
A daughter has some problems, as siblings are hurt by parent’s estate planning intentions. With the choices you make of who you put in charge, you set the table for great or horrible results. Failing to have any plan is setting the table for controversies and fights. Families can grow together with brothers and sisters under the same roof. As time goes by and aging parents must make tough decisions, things can get difficult with feuds developing. An estate planning attorney can help the family through these difficult times, according to a Faribault Daily News article “Attorney can smooth path for families making legal plans,” The article tells of a reader who faced a problem from siblings, when the parents wanted to create a power of attorney for health and care decisions. The difficulties came from siblings who live far away but felt as if they not being included in their parent’s plans. For this particular family, one sibling lives 500 miles away and another lives 800 miles in the opposite direction. The one daughter who lives in the same community is the logical choice for power of attorney. What can be done? The parent’s foresight in updating their estate plan and related legal documents is to be congratulated. The one adult child who lives in their community, is the best choice for power of attorney for medical and financial decisions, so they can quickly handle an emergency situation. The parents have assigned the other two adult children as secondary POAs and everyone has already been informed that they will all receive equal shares in the estate. The out-of-town siblings should be happy at how fairly and expeditiously their parents are taking care of in these matters. Adults need someone to be named to handle health care and financial decisions, if they become incapacitated and need someone else to make decisions. Having a POA puts others in place to take over any tasks. Having a secondary POA designates someone to step in, if the primary is unable to act. When someone choses a POA because they don’t want to hurt any feelings, the result is often disastrous. It’s important to pick the most competent and trustworthy candidate. Some states also allow what is known as a “co-agent,” so that decisions are made together. But in an emergency, if the other person is not immediately present and time is an issue, this can lead to critical situations being unresolved. One way to soften this kind of situation is to have the entire family meet with the estate planning attorney in a family meeting. With a professional who is not emotionally tied to the family dynamics, decisions can be explained, and cooler heads may prevail. An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and help smooth over family issues, if necessary. We spend the time in consultations helping to weigh out these choices. Reference: Faribault Daily News (August 28, 2018) “Attorney can smooth
Your work isn’t done just because you have a will. There are many myths floating around about wills, trusts and estate planning. Those myths can easily confuse people who haven’t taken the time to bust them, before getting on to the real work … taking care of the family, according to the Cleveland Jewish News in “Estate planning myths common, but debunkable.” One common myth is that a trust is completely creditor protected. While there are some trusts that achieve this goal, there are many that don’t. It is easier to provide that to your beneficiaries that to yourself. Another myth is that once an estate plan is completed, there’s no need to revisit or make changes. We look at the planning you put in place as essentially an ongoing rough draft. Perhaps the biggest myth around estate plans is that they are only needed by wealthy people. Actually, everyone needs a will. A property power of attorney can save your loved ones thousands of dollars and massive aggravation. People chat with their friends and neighbors and pick up snippets of information, which is usually incorrect. As with any kind of story, once a piece of information has moved through a few different people, it becomes confusing, even if it started out accurate. The value of such “Street lawyers” is usually what you pay for it. Unless it comes from an estate planning attorney, don’t get any legal advice at a neighborhood or family gathering. The results can be disastrous. If you think having a trust alone is enough to prevent your heirs from having to pay any taxes, your kids will be in for a big and expensive mistake. If you don’t set up guardianship for your minor children, then the court will appoint a guardian. It’s entirely possible that it may be a person you would never have wanted to raise your children. If a separate financial trustee is not named, there won’t be any checks and balances on how the money left for your children is spent. If you don’t have an estate plan in place, and especially if your family includes minor children, make an appointment to speak with an estate planning attorney who can advise you on an estate plan that fits your unique circumstances. Reference: Cleveland Jewish News (Sep. 20, 2018) “Estate planning myths common, but debunkable”
If you are thinking of an immediate power of attorney, take your time and make the decision carefully. When you create a power of attorney, the authority granted in that document can be immediately effective, or alternatively can be activated only by documented proof that you are incapable of acting. Everything in life has its advantages and disadvantages. The immediate power of attorney is great because it is very easy to use. It can be not so great because it is equally easy to misuse. However, that requires some very careful thought before making the decision, according to the Glen Rose Reporter in “Should you add hot powers to your power of attorney?” The “hot” powers are well-named since they give a financial power of attorney considerable power. It is a lot of leeway for an agent to be given during one’s lifetime. This is because it allows the agent to create, amend, revoke or terminate a trust during the principal’s lifetime. The agent may also be given the power to make gifts, to themselves or others> They can also include other special powers, such as the powers to create or change rights of survivorship, create or change a beneficiary designation and to authorize another person to exercise the authority granted under the power of attorney. These extraordinary powers can be very helpful for long term care planning if someone is now or will soon be in need of nursing home care. The gifts the agent can make are further limited to being consistent with the principal’s objectives if the agent knows what those objectives are. However, if the agent does not know what those objectives are, he or she must still make sure the gift is aligned with the principal’s best interest, based on the value and nature of the principal’s property, foreseeable obligation and the need for maintenance. The power of attorney in all cases needs to know what their responsibilities are, and if they are given “hot” powers, they need to be informed what those specific powers are. If the agent is someone other than a spouse or descendant, that agent may not make gifts to themselves. A spouse or descendant, however, could make gifts to themselves. It boils done to the degree of confidence you have in who you are empowering in your power of attorney. The person does not need to be a financial genius. They can hire advisors. However, there is no replacement for trustworthiness. Reference: Glen Rose Reporter (Jan. 3, 2019) “Should you add hot powers to your power of attorney?” Estate Planning Attorney Can Help Avoid Family Feuds
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