Elder Law Attorney

Can a Power of Attorney Protect My Assets as I Get Older?

Estate planning attorneys help protect individuals and their assets as they grow older and then protect their beneficiaries when they pass away. So, how can a power of attorney protect your assets as you age?

power of attorney protect
A Power of Attorney is an important estate planning tool.

The Street’s recent article entitled “Guide to Protect Your Assets as You Age – Power of Attorneys” asks us to think about visiting your family doctor for the last 30 years but then needing to see a specialist for the first time. That’s because your family doctor isn’t a specialist, and they might miss something. The article explains that estate planning attorneys are the specialists of the legal profession—they take a fresh look at a client’s situation and develop strategies to protect them and their families from the risks as we grow older.

Estate planning attorneys can help you protect yourself and your family and they make certain that your estate goes to your family as you intended, with little or no tax liability.

An important tool to accomplish this goal is the Power of Attorney (POA). There are two of them: a medical POA and a financial POA. These allow you to designate a trusted agent to make your medical and financial decisions, when you are unable.

Unfortunately, the coronavirus pandemic has placed everyone in difficult circumstances. As a result, many hospitalized patients are without the proper estate planning documents. Some hospitals, nursing homes, and assisted living homes have shuttered their doors to visitors and non-essential workers in an attempt to minimize the spread of this disease. As a result, many patients are unable to get these documents signed.

Although some states initially prevented electronic signatures and notarization that would keep contact to a minimum, many have now permitted patients access to elder law and estate planning attorneys, when needed. These states have signed executive orders that allow for electronic signatures, which has been a huge help. Even so, this can be challenging for an elder individual.

Financial powers of attorney are not all the same either. They are just one tool in the toolbox.

A power of attorney can have a list of things you will permit your designated agent to do for you. Many of these documents do not give your agent enough power to protect you. That’s because they limit your agent’s abilities. That may sound good when you first sign them, but the result is that it makes things harder for your family if you have a stroke and your loved one needs to protect your finances.

Reference: The Street (Sep. 24, 2020) “Guide to Protect Your Assets as You Age – Power of Attorneys”

What Do I Do with My Late Mom’s Stimulus Check?

What do you do with a stimulus check delivered to your loved one who has passed away?

The word is that these checks will have to be returned. However, right now there’s been no official guidance on how to go about doing this.

U.S. Treasury Secretary, Steve Mnuchin, was quoted in the Wall Street Journal as saying heirs should be returning money sent in the name of someone who passed away.

However, that’s it. No one has elaborated, says KOMO’s April article entitled “Heirs may have to return stimulus money sent to the deceased, but how and when?”

Payments to the dead have been trouble ever since the stimulus checks started to be sent out. The federal government isn’t telling anyone the number of dead people who got the checks, but consumers are reporting them from across the U.S.

Even with the published reports that the government would like heirs to return the economic impact payments sent to the deceased, there’s still been no official comment and no information addressing the issue on either the U.S. Treasury or the IRS websites.

Add to this, the fact that some people are receiving conflicting information from tax professionals about their rights to the money.

Some people say they were informed that if the person was living as of January 2, then their survivors could keep the cash. However, in a transcript of an April 17 White House briefing, President Trump was asked about checks to dead people.

Trump said, “we’ll get that back.”

If you still have stimulus money sent to someone who has passed away, don’t spend it. Keep it and monitor the IRS and Treasury websites for instructions on what to do with the stimulus check.

Reference: KOMO (April 29, 2020) “Heirs may have to return stimulus money sent to the deceased, but how and when?”

Save Your Family Stress and Plan Your Funeral

Making your way through the process of the death of a family member is an extremely personal journey, as well as a very big business that can put a financial strain on the surviving family.

Rate.com’s recent article entitled “Plan Your Own Funeral, Cheaply, and Leave Behind a Happier Family”  notes that on an individual basis, it can be a significant cost for a family dealing with grief. The National Funeral Directors Association found that the median cost for a traditional funeral, with a basic casket that also includes a vault (the casket liner most cemeteries require) can cost more than $9,000. With the cost of a (single) plot and the services of the cemetery to take care of the burial and ongoing maintenance and other expenses, it can total more than $15,000.

Instead, if you opt for cremation and a simple service, it will run only $2,000 or less. That would save your estate or your family $13,000. Think of the amount of legacy that can grow from your last wishes.

Without your directions, your grieving family is an easy mark for a death care industry that’s run for profit. Even with federal disclosure rules, most states make it impossible to easily comparison shop among funeral service providers, and online price lists aren’t required. However, you can do the legwork to make it easier on your family, when you pass.

Funeral homes also aren’t usually forthright about costs that are required rather than optional. The median embalming cost is about $750. However, there’s no regulation requiring embalming. Likewise, a body need not be placed in a casket for cremation. The median cost for a cremation casket is $1,200 but an alternative “container” might cost less than $200.

The best thing you can do for your family is to write it down your wishes and plans and make it immediately discoverable.

It can be a great relief to tell your family everything you want (and don’t want). However, if that’s not feasible with your family dynamics, be certain that you detail of all your wishes in writing. You should also make sure that the document can be easily located by your executor.

This elementary step can be the start to helping their decision-making when you pass away, and potentially provide some extra money to help them reach their goals.

Reference: rate.com (June 21, 2020) “Plan Your Own Funeral, Cheaply, and Leave Behind a Happier Family”

What Changes Will Be Made to Social Security This Year?

Social Security now delivers benefit checks to more than 63 million people every month, so it’s important to know what changes will be made to social security this year.

The program is primarily designed to provide a financial foundation for our nation’s retired workers. Nearly 45 million retired workers (70% of all beneficiaries) receive a benefit check monthly, with more than 60% of these seniors expecting their payout to make up at least half of their income.

What changes will be made to social security this year
There will be five primary changes to Social Security this year.

Motley Fool’s recent article, “5 Social Security Changes in 2020 That Could Affect Your Take-Home Income” explains that with the relative importance of Social Security, it should come as no shock that the second week of October holds considerable importance to these tens of millions of Americans. That’s because it’s when the Social Security Administration (SSA) announces changes to the program for the upcoming year. Any changes could directly affect what beneficiaries are paid on a monthly basis. These changes can also affect non-retirees who aren’t getting a Social Security benefit. Let’s look at some of the primary changes.

  1. COLA. The most important figure in the announcement from the SSA is the cost-of-living adjustment (COLA). The COLA is measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). The average monthly CPI-W reading from the third quarter of the current year (July through September) is compared to the average monthly CPI-W reading from the third quarter of the previous year. If the average figure has risen from the previous year, then beneficiaries receive a “raise” that’s in line with the percentage increase year over year, rounded to the nearest 0.1%.
  2. Withholding thresholds. Early claimants who haven’t hit their full retirement age but are currently (or expected to begin) taking benefits, will now be subject to the retirement earnings test. This test allows early filers to earn up to a certain amount of money each year, before the SSA is allowed to withhold a portion, or all, of their benefit. For those who won’t reach their full retirement age in 2019, $1 in benefits can be withheld for every $2 in earnings above $17,640 ($1,470 a month). For those who’ll reach their full retirement age this year but have yet to do so, are allowed to earn $46,920 before the SSA begins withholding $1 in benefits for every $3 in earnings above the limit. Note that these withheld benefits aren’t lost forever, because you get them back in the form of a higher monthly payout when you reach your full retirement age.
  3. Maximum monthly payout. If you’re currently claiming a retired worker benefit and have made a good deal of money on an annual basis over your working career, there’s a chance that you’ll be able to net more in monthly payouts in 2020. There’s a cap on the maximum monthly payout at full retirement age. In 2019, no individual at their full retirement age can take home more than $2,861 per month, even if they made millions of dollars each year throughout their working career.
  4. Disability income thresholds. Even though 70% program recipients are retired workers, about 10 million people each month also get a check from Social Security Disability Insurance (SSDI). Approximately 8½ million are disabled workers, and the rest are spouses or children of these disabled workers. If the average CPI-W reading does increase on a year-over-year basis from the previous year (which appears likely), these SSDI income thresholds for the disabled and legally blind should go up a little in 2020.
  5. A warning to the wealthy. Lastly, SSA changes for 2020 won’t just impact those receiving a benefit. Wealthy workers can also anticipate paying more into the program, provided that inflation rises on a year-over-year basis, as measured by the CPI-W.

Reference: Motley Fool (July 28, 2019) “5 Social Security Changes in 2020 That Could Affect Your Take-Home Income”

What Does an Elder Law Attorney Really Do?

A knowledgeable elder law attorney will make certain that he represents the best interests of his senior client in a variety of situations that usually occur in an elderly person’s life.

An elder care attorney will also be very knowledgeable about several different areas of the law.

The Idaho Falls Spokesperson’s recent article, “What is an Elder Law Attorney and What Can They Do for You?” looks at some of the things an elder care attorney can do.

Elder care attorneys address long-term care issues, housing, quality of life, independence and autonomy—which are all critical issues concerning seniors.

Your elder law attorney knows that one of the main issues senior citizens face is sound estate planning. This may include planning for a minor or adult child, as well as probate proceedings, which is a process where a deceased person’s assets are collected and distributed to the heirs and creditors.

The probate process may also involve the Uniform Probate Code (UPC). The UPC is a set of inheritance rules written by national experts. A major responsibility of the probate process is to fully administer the entire estate, including appointing executors and ensuring that all assets are disbursed properly.

An experienced elder law attorney can also assist your family to make sure that your senior receives the best possible care arrangement, which may become more important as his or her medical needs increase.

An elder care law attorney also helps clients find the best nursing home to fully satisfy all their needs. Finally, they often will also work to safeguard assets to prevent spousal impoverishment, when one spouse must go to a nursing home.

A qualified elder care attorney can be a big asset to your family, as you journey through the elder care planning process. Working with an attorney to set up contingency plans can provide peace of mind and relief to you and your loved ones.

Reference: Idaho Falls Spokesperson (May 20, 2019) “What is an Elder Law Attorney and What Can They Do for You?”

Protect A Life of Saving from Long Term Care Costs

Every month, Lawrence Cappiello writes a check to a nursing home for $12,000 to pay for his wife’s nursing home and long term care costs. Two years ago, his net worth was $500,000. In less than two years, the Cappiello’s savings will be gone. This unsettling story is explained in the article “How to Keep LTC Costs From Devouring Your Client’s Life Savings” from Insurance News Net. He is suffering from nursing home sticker shock and says he should have known better.

With proper planning, long term care costs won’t take your life’s savings

Cappiello was a professor at the University of Buffalo for 25 years. During that time, he taught an introductory course on health care and human services that touched on the costs to consumers. He said it was clear even then, that the cost of long term care was going to escalate out of control.

To qualify for Medicaid payments of nursing home care in New York State, residents are permitted to own no more than $15,450 in nonexempt assets. However, elder law attorneys, whose practices focus on these exact issues, say that the way to protect the family’s assets, is to take steps years before nursing home or long term care is needed. Some general recommendations:

  • Signing over the deed of the home to children or any others who would otherwise inherit it from you in a will. The transaction would need to stipulate that you have life use of the home.
  • Establishing an irrevocable trust, that upon death, transfers the house to the beneficiaries. There must be language that ensures that you have life use of the house.
  • Giving away savings and other financial assets.

Transfers of any assets must take place more than five years before applying for Medicaid nursing home and long term care coverage. If they have been given away or transferred within the five year “look-back” period, then there is a chance that they may still qualify, or they may have to wait five years.

That is why planning with an experienced estate planning attorney is so critical for families, especially when one of the spouses is facing a known illness that will get worse with time. There are steps that can be taken, but they must be done in a timely manner.

Many older people are not exactly jumping with joy at the idea of handing over their assets, even when relationships with adult children are good. The idea of giving up assets and the family home is a marker of the passage of time and the inevitability of one’s own passing. These are not things that we enjoy considering. However, taking steps in advance, can make a huge difference in the quality of the well spouse’s life.

It should be noted that a sick spouse can move assets to a healthy spouse, to make the sick spouse lawfully poor and eligible for Medicaid. There is no look back period or penalty relating to long term care for interspousal transfers. This may sound like a very simple solution. However, these are complex matters that need the help of an experienced attorney. If it were so easy, countless spouses would not be facing their own impoverishment because of an ill spouse’s long term care needs.

Reference: Insurance News Net (Feb. 4, 2019) “How to Keep LTC Costs From Devouring Your Client’s Life Savings”

300,000 Americans to Gain Medicaid Benefits

Most of those who will be eligible in 2019 are over age 50 and would otherwise have no healthcare.

Ballot measures in three states—Idaho, Nebraska, and Utah—will extend the federal- and state-funded healthcare program to allow access to approximately three hundred thousand low-income Americans.

MedicaidAARP’s recent article, “Medicaid to Expand in 3 States,” reports that with the passage of ballot measures in those three states, 37 states, including DC, have now expanded the Medicaid program, since the Affordable Care Act (ACA) created the opportunity to offer more people coverage.

The success of the three ballot measures “is a recognition that Medicaid plays an important role in our society for those who are in need and that it’s an issue that has changed a great deal over the past five or six years from a political standpoint,” says John Hishta, AARP senior vice president for campaigns. “I think the voters have led the way in some of these states.”

Montana voters rejected a measure that would have increased tobacco taxes on cigarettes and taxed other tobacco products to pay for the state’s share of Medicaid expansion, veterans’ mental health, and home- and community-based services. Nearly 130,000 low-income residents in that state may now lose their Medicaid eligibility in 2019, if the state Legislature doesn’t act.

The mid-term election results in three other states could have implications for their Medicaid programs as well. Maine’s Democratic Governor-elect Janet Mills supports expanding Medicaid. The state’s voters decided in 2017 to expand the program, but the current governor, Republican Paul LePage, refused to implement the expansion.

Kansas’ Democrat Governor-elect Laura Kelly stated in the campaign that she’d push for legislation to expand Medicaid during her first year in office. In 2017 the Republican-controlled Kansas House of Representatives and Senate passed legislation to extend Medicaid, but the current Governor Sam Brownback vetoed it. The Legislature couldn’t override his veto.

Wisconsin’s Governor-elect Tony Evers says he wants to expand Medicaid, which would provide coverage to at least an additional 80,000 people in that state.

Most of the people who apply for Medicaid work but do not earn enough to cannot afford health insurance. The program allows people between 50—64 years of age to get health care coverage.

Reference: AARP (November 8, 2018) “Medicaid to Expand in 3 States”

Preparing for the Realities of Aging

A healthy life where you retain all your faculties and enjoy yourself, is definitely preferred to decades of dementia. We don’t get to choose, but we can plan.

As Baby Boomers continue to change the face of aging, and so many embrace the idea of genetic testing, many are confronted with a harsh picture of what their future may bring. If that includes dementia, there are facts you need to know and myths that need to be uncovered.

MP900439289The (Bryan TX) Eagle’s recent article, “Alzheimer’s disease: Five common myths, busted,”reports that, according to the Alzheimer’s Association, one in three seniors dies with Alzheimer’s or another type of dementia. There are up to 5.7 million individuals who live and die with the disease, which makes it the sixth leading cause of death in the United States. The article provides five common myths about Alzheimer’s disease.

Myth # 1: Memory loss is a normal part of growing older. A slip of the memory may well be a normal part of growing older. While these forgetful moments may cause a bit of frustration and embarrassment, they don’t affect our ability to live an independent life. However, if a loved one has trouble remembering commonly used words or loses the ability to communicate, it could be a potential symptom rather than a natural senior side-effect.

Myth # 2: Alzheimer’s can be reversed if it’s diagnosed early.No. Unfortunately, there's no treatment that will reverse the progress of Alzheimer’s disease. However, although there are therapies and drugs that can slow down the neurodegeneration associated with Alzheimer’s, there is no known cure. Even so, early diagnosis has its benefits, like better symptom management, a safer patient environment and the ability to plan for the future.

Myth # 3: Alzheimer’s just affects older people. Some Alzheimer’s patients can get diagnosed in their 40’s or 50’s. The early onset Alzheimer’s is uncommon (just 5% of patients are diagnosed before age 65); an accurate diagnosis is important to help the family cope with the realities of the disease.

Myth # 4: A diagnosis of Alzheimer’s means your life is over. Many people live years or even decades, before the disease claims their lives. Alzheimer’s effects each patient differently. The disease is commonly divided into three stages. The first or “mild” stage is where the patient is able to live a mostly normal life. The middle or “moderate” stage requires more extensive care. And in the late or “severe” stage, the patient needs 24/7 supervision and medical assistance. Life many never be the same with an Alzheimer’s diagnosis, but it’s far from over.

Myth # 5: There’s little you can do to protect yourself financially, if you are diagnosed with the disease. A serious diagnosis of any type can drastically impact a family, but it’s important to understand that there are things you can and should do to help your loved ones manage what comes next, emotionally as well as financially. Look at these ways you can help:

  • Create a list of all financial accounts;
  • Review the titles and names on each account;
  • Look at your options for paying for medical care, such as existing insurance policies, Medicare coverage, or other sources of funding;
  • Consider designating a Durable Power of Attorney for Healthcare, so that a trusted person can make decisions for the patient if there’s an accident or incapacitation;
  • Communicating preferences for living arrangements, medical assistance, and end-of-life care; and
  • Be sure your will is up to date.

Speak with an elder law attorney, who will be able to help you and your family navigate this process. He or she will also be able to recommend local resources that will help make this journey as good as it can be.

Reference: The (Bryan TX) Eagle (October 4, 2018) “Alzheimer’s disease: Five common myths, busted”

Are You or Will You Become a “Solo Ager”?

“Solo agers face unique challenges, as their needs begin to change.”

Did you know that a study from the Pew Research Center says about 20% of the 75 million baby boomers don’t have children—a figure that’s double what it was in the 1970s and one that’s expected to keep rising.

MP900427632We mention this because these people need someone to count on to always be there, if they need help making decisions and managing their affairs as they get older.

NH Magazine’s recent article entitled “The Difficulties That Come With Solo Aging” says that, for those without children or parents who’re estranged from them, it’s frequently a tough question to answer.

Our country’s 15 million “solo agers” or “elder orphans” now comprise a demographic that’s unprecedented in American history. This relatively new segment of society has a unique set of challenges.

As your physical, intellectual, and emotional capacities diminish, a person on his own must determine how he will be able to make sound decisions on financial and legal issues, relationships, housing and healthcare. There are also more cases being reported of elder fraud, and new scams are designed to take money from seniors. An elderly person could also wind up lonely and penniless.

However, there is help. Professional guardians can assist the elderly in reviewing their financial statements, creating budgets, paying bills, keeping keep them organized and sorting mail and email to see what’s a legitimate bill or a solicitation or potential scam.

A guardianship, which is also known as a conservatorship, is a legal process that’s used when a senior can no longer make or communicate safe or sound decisions about himself person and/or his property, he’s become susceptible to fraud or undue influence. The fact that establishing a guardianship can remove substantial rights from a person means that it should only be considered after other alternatives have proven ineffective or are unavailable.

In addition to a court-ordered guardianship, there are other options. There are also certified geriatric care managers, certified daily money managers, as well as attorneys who specialize in elder law.

Solo agers should arrange a future legal guardianship for themselves, a person who will assume control in a fiduciary capacity, if they’re unable to make decisions for themselves. This may be a relative or a friend, as well as a professional fiduciary or private guardian.

In addition, everyone should have a healthcare directive and an estate plan. However, solo agers have a more urgent need to have these important documents in place, while they’re still somewhat young and healthy—because they don’t have an adult child who will fly in from the other side of the country to provide that assistance and guidance.

Talk to several potential guardians or fiduciaries and go with the one whose skills most closely fit your needs and with whom you feel the most comfortable. Check their references and credentials thoroughly. You can also select different people for different tasks, which gives you a critical system of checks and balances. Be certain that you understand exactly what services each will provide and their fees and get it all in writing.

Reference: NH Magazine(October 2018) “The Difficulties That Come With Solo Aging”

What Happens in Your World After You Die?

We’re not talking about what happens to your soul, or if you are headed to a peaceful place, or even what happens to your physical remains. Have you thought about what happens to the world you leave, your family and friends and your possessions, after you die?

Let’s say you don’t believe in anything in particular. Or you’re deeply spiritual and believe that death will be a wonderous journey. Either way, you should devote time and energy to what happens right here on earth after you die, says Forbes in the article, “What Will Really Happen After You Depart?”

31179858004_e5c33b693c_oNo, not just because it’s the right thing to do and not just because you’re curious. It’s because you want your family to remember you for the awesome legacy you plan on leaving, not because of the horrible hot mess you left behind that they spent three years trying to figure it out, while trying to live their lives.

Estate organization is not the exact same thing as estate planning. An experienced estate attorney or elder law attorney can help you draft your will, your advance directive, your power(s) of attorney and a trust, if you need it. Your attorney most likely also has a copy of those documents.

 However, the attorney has no power over what you do with your original estate planning documents, once you leave their office.

One idea is to develop a guidebook or “game plan” for your family and loved ones, while you’re alive. It’s known that there’s a strong correlation between how we face death and prepare our families—and their ability to survive, adjust and start the recovery process. Organizing your estate has been called a “gift of love” that goes far beyond when you can be around to take care of your family.

Answer these questions to start the estate organizing process:

  • Does a family member know where to find your advance directive, if you end up in the hospital?
  • Where are your legal documents and who in your family knows where to find them?
  • Who has access to your bank accounts and knows your login data?
  • Are you now caring for someone? Who’d assume that responsibility, if you’re unable to do so?
  • Have you made final arrangements for your death, funeral and burial or cremation?
  • Who knows about the plans and where the paperwork is located?
  • Where are your insurance documents, and who knows where to find them?
  • Who’ll take care of your pets, when you are no longer able?

Let’s also keep in mind that getting all these plans and documents in place is just the first step. They don’t do anyone any good, if you don’t talk with your family and loved ones about them. You have to make sure that they understand your wishes to avoid misunderstandings or family feuds, after you’re not around to correct them. The more you can discuss these matters in a calm, caring fashion, the better their grief process will be. Think of this as your opportunity to show how much you care about them. You want them to remember you with love, grieve in a healthy manner and be able to incorporate your loss, as their lives continue. Memories are a powerful force, and how you prepare for your passing, will also be a memory for them.

Reference: Forbes (September 13, 2018) “What Will Really Happen After You Depart?”

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