Minimizing Taxes should be a Part of your Plan

June 15, 2022

Let’s get this out of the way: preparing for death doesn’t mean it will come sooner. Quite the opposite is true. Most people find preparing and completing their estate plan leads to a sense of relief. They know if and when any of life’s unexpected events occur, like incapacity or death, they have done what was necessary to prepare, for themselves and their loved ones. Minimizing taxes should be a part of your plan.

It’s a worthwhile task, says the recent article titled “Preparing for the certainties in life: death and taxes” from Cleveland Jewish News and doesn’t need to be overwhelming. Some attorneys use questionnaires to gather information to be brought into the office for the first meeting, while others use secure online portals to gather information. Then, the estate planning attorney and you will have a friendly, candid discussion of your wishes and what decisions need to be made.

Several roles need to be filled. The executor carries out the instructions in the will. A guardian is in charge of minor children, in the event both parents die. A person named as your attorney in fact (or agent) in your Power of Attorney (POA) will be in charge of the business side of your life. A POA can be as broad or limited as you wish, from managing one bank account to pay household expenses to handling everything. A Health Care Proxy is used to appoint your health care agent to have access to your medical information and speak with your health care providers, if you are unable to.

Your estate plan can be designed to minimize probate. Probate is the process where the court reviews your will to ensure its validity, approves the person you appoint to be executor and allows the administration of your estate to go forward.

Depending on your jurisdiction, probate can be a long, costly and stressful process. In Ohio, the law requires probate to be open for at least six months after the date of death, even if your estate dots every “i” and crosses every “t.”

Part of the estate planning process is reviewing assets to see how and if they might be taken out of your probate estate. This may involve creating trusts, legal entities to own property and allow for easier distribution to heirs. Charitable donations might become part of your plan, using other types of trusts to make donations, while preserving assets or creating an income stream for loved ones.

Minimizing taxes should be a part of your estate plan. While the federal estate tax exemption right now is historically high $12.06 million per person, on January 1, 2025, it drops to $5.49 million adjusted for inflation. While 2025 may seem like a long way off, if your estate plan is being done now, you might not see it again for three or five years. Planning for this lowered number makes sense.

Reviewing an estate plan should take place every three to five years to keep up with changes in the law, including the lowered estate tax. Large events in your family also need to prompt a review—trigger events like marriage, death, birth, divorce and the sale of a business or a home. If you would like to read more about taxes and their influence of estate planning, please visit our previous posts.

Reference: Cleveland Jewish News (May 13, 2022) “Preparing for the certainties in life: death and taxes”

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Be certain You’ve got Legal Documents for your College Kid

June 14, 2022

There are few things more exciting as a parent than seeing your child come of age and embark on adulthood. That often means leaving home to start a career or enter college. It is at this stage that you need to be certain you’ve got legal documents in place for your college kid. The Press-Enterprise’s recent article entitled “Legal documents for young adults” describes some of the important legal and estate planning documents your “kid” (who’s now an adult) should have.

HIPAA Waiver. This form allows medical personnel to provide information to the parties you’ve named in the document. Without it, even mom would be prohibited from accessing her 19-year-old adult’s health information—even in an emergency. However, know that this form doesn’t authorize anyone to make decisions. For that, see Health Care Directives below.

Health Care Directive. Also known as a health care power of attorney, this authorizes someone else to make health care decisions for you and details the decisions you’d like made.

Durable Power of Attorney. Once your child turns 18, you’re no longer able to act on their behalf, make decisions for them, or enter into any kind of an agreement binding them. This can be a big concern, if your adult child becomes incapacitated. A springing durable power of attorney is a document that becomes effective only upon the incapacity of the principal (the person signing the document). It’s called a “springing” power because it springs into effect upon incapacity, rather than being effective immediately.

A durable power of attorney, whether springing or immediate, states who can make decisions for you upon your incapacity and what powers the agent has. The designated agent will typically be able to access bank accounts, pay bills, file insurance claims, engage attorneys or other professionals, and in general, act on behalf of the incapacitated person.

They’ll always be your babies, but once your child turns 18, he or she is legally an adult.

Be certain that you’ve got the legal documents in place to be there for your college kid in case of an emergency.

Remember a spring break, when they’re home for summer after their 18th birthday, or a senior road trip are all opportunities when these documents may be needed. If you would like to learn more about estate planning for young adults, please visit our previous posts.

Reference: The Press-Enterprise (April 2, 2022) “Legal documents for young adults”

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Identifying the Early Signs of Dementia

June 8, 2022

If you’re an older adult experiencing memory lapses, lack of focus or confusion — or you have a loved one with those symptoms, you may be concerned about the onset of dementia or Alzheimer’s disease. However, other treatable conditions can cause similar symptoms, and they can be easy for doctors to miss, says Ardeshir Hashmi, M.D., a geriatrician and section chief of Cleveland Clinic’s Center for Geriatric Medicine. There are clues that can help you in identifying the early signs of dementia.

“Sometimes there’s just a very superficial workup and then [the doctor says], ‘Here’s a pill for Alzheimer’s,’” Hashmi says. (While no drug has been proved to stop or slow the progression of dementia, there are several federally approved medications that can help manage the symptoms of Alzheimer’s.) “Before you make that conclusion, you should rule out all the other things that can be confused with dementia — things that are easily reversible.”

AARP’s recent article entitled “6 Medical Problems That Can Mimic Dementia — but Aren’t” identifies some common medical problems that can be mistaken for the early signs of dementia.

Medication interactions or side effects. Older adults are more likely than younger people to develop cognitive impairment as a side effect of a medication. Drug toxicity is the reason in as many as 12% of patients who present with suspected dementia, research shows.
A respiratory infection (including COVID-19). Any untreated infection can cause delirium — a sudden change in alertness, attention, memory and orientation that can mimic dementia. When you have an infection, the white blood cells in your body are sent to the infection site, causing a chemical change in the brain that makes some older adults feel drowsy, unfocused or confused. Respiratory infections are harder to diagnose in people over 65 because they are more likely to lack classic symptoms, such as a fever or a cough.
A urinary tract infection (UTI). Research shows about 1 in 10 women older than 65 and up to 30% of women over 85 reported having had a urinary tract infection in the past year. Men are also more likely to experience UTIs as they age. However, most UTIs, and the accompanying cognitive issues, can be diagnosed with a simple urine test and then treated with an antibiotic.
Sleep problems or disturbed sleep. If your sleep-wake cycle is disturbed or you have insomnia, you may experience dementia-like symptoms. These include trouble focusing, confusion, mental fatigue and irritability. Some older adults also suffer from sleep apnea, a sleep-related breathing problem that can deprive your brain of the oxygen it needs while you slumber, possibly causing long-term damage. Many seniors don’t realize they have this. Tell your doctor if you have signs of apnea, such as loud snoring, waking up gasping or choking, uncontrolled high blood pressure, a morning headache, or a dry mouth upon waking. If you are diagnosed with sleep apnea, using a continuous positive airway pressure machine (CPAP) while you snooze has been shown to be an effective treatment.
Dehydration. If you take diuretics or laxatives, they can contribute to water loss. If you seem foggy or confused, see if your urine is dark yellow or brown, which can indicate a lack of fluids. Another sign of severe dehydration is a white coating on the tongue. To prevent dehydration, older adults should aim to get at least 48 ounces of caffeine-free fluids (six 8-ounce glasses) a day.
Normal pressure hydrocephalus. This is a treatable disorder in which cerebrospinal fluid accumulates in the brain, disrupting and damaging nearby brain tissue and causing cognitive problems. A neurologist can diagnose normal pressure hydrocephalus using brain imaging and cerebrospinal fluid tests. It is treated by inserting a shunt into the brain to drain the fluid.

Know that dementia isn’t a normal expected part of aging. 11% of adults 65 and older have Alzheimer’s disease, the most common form of dementia. Identifying the early signs of dementia can dramatically increase the benefits of therapies and treatments. If you would like to learn more about dementia, and other related illnesses, please visit our previous posts.

Reference: AARP (March 21, 2022) “6 Medical Problems That Can Mimic Dementia — but Aren’t”

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Latest Ways to Prevent Dementia

June 3, 2022

Protecting brain health and cognitive functioning as we age is crucial. The CDC estimates that 5.8 million people in the U.S. are now living with dementia. With that figure only getting larger, many recent studies have been focused on understanding what causes the condition, as well as the latest ways to help prevent dementia. One recent study looked at the relationship between cognitive decline and something you may already have at home.

Best Life’s recent article entitled “Having One of These at Home Helps Prevent Dementia, New Study Says” reports that research shows different foods and drinks can either increase or mitigate your risk of dementia.

A recent study, for example, found that vitamin K has the potential to improve cognitive abilities in aging brains. A number of forms of this vitamin are found in leafy green vegetables, fermented foods, some cheeses, meats and fish. Research suggests that getting optimal daily doses may help protect your brain in the future.

Another new study found that having a pet at home could have positive effects on your cognitive health. The findings from a recent study suggest they could actually help slow rates of cognitive decline. Preliminary data were presented at the American Academy of Neurology (AAN) meeting earlier this month, outlining how “sustained relationships with companion animals” could help keep your brain healthy.

“Prior studies have suggested that the human-animal bond may have health benefits, like decreasing blood pressure and stress,” said study author Tiffany Braley, MD, MS, associate professor of neurology at the University of Michigan Medical Center, said in a press release. “Our results suggest pet ownership may also be protective against cognitive decline.”

Richard Isaacson, MD, director of the Alzheimer’s Prevention Clinic in the Center for Brain Health at Florida Atlantic University’s Schmidt College of Medicine, echoed this when speaking with CNN about the findings. According to Isaacson, who was not affiliated with the study, owning a pet or multiple pets integrates “core components of a brain-healthy lifestyle.”

“Cognitive engagement, socialization, physical activity and having a sense of purpose can separately, or even more so in combination, address key modifiable risk factors for cognitive decline and Alzheimer’s disease dementia,” he told CNN.

The study looked at the cognitive data from 1,369 adults over the age of 50 from a University of Michigan Health and Retirement Study. The participants had an average age of 65 years and normal cognitive skills when the study started. Over 50% of the participants owned pets, and of those, 32% were long-time pet owners (owing pets for over five years).

Researchers found that pet owners’ cognitive composite scores decreased at a slower rate, when compared with non-pet owners. The results were stronger for long-term pet owners, whose average scores were 1.2 points higher than non-pet owners at the six-year mark. Demographics seemed to have an impact. Pet owners generally had higher socioeconomic status, when compared with non-pet owners. Researchers also found that college-educated adults, Black adults and men who were long-term pet owners had even more prominent cognitive benefits.

While researchers couldn’t definitively say why long-term pet ownership had the best effect, according to Braley, having a pet may help mitigate stress and keep you moving—both of which aid in keeping your brain healthy.

“As stress can negatively affect cognitive function, the potential stress-buffering effects of pet ownership could provide a plausible reason for our findings,” Braley stated in the AAN press release. “A companion animal can also increase physical activity, which could benefit cognitive health.”

He noted that additional research is needed to confirm the most recent findings. These are just a few of the latest ways to help prevent dementia. If you are interested in learning more about dementia, and other cognitive conditions, please visit our previous posts.

Reference: Best Life (April 26, 2022) “Having One of These at Home Helps Prevent Dementia, New Study Says”

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Documents You need if You become Incapacitated

May 26, 2022

There are documents you need if you become incapacitated. If advance planning has been done, your family will have the legal documents you need. Just as importantly, they will know what your wishes are for incapacity and end-of-life care. If there was no planning, your loved ones will have to start with a lengthy application to the court to have someone named a guardian. They are a person who has legal authority to make medical decisions on your behalf.

Having a plan in place beforehand is always better, explains the article “If I become incapacitated, who makes healthcare decisions?” from Waterdown Daily Times.

Another reason to have these documents if you become incapacitated: the court does not require the guardian to be a family member. Anyone can request a guardian to be appointed for another incapacitated individual, whether incapacity is a result of illness or injury. If no planning has been done, a guardianship must be established.

This is not an easy or inexpensive process. A petition must be filed, and the person in question must be legally declared incapacitated. In some cases, these filings are done secretly, and a guardianship maybe established without the person or their family even knowing it has occurred.

There are also many cases where one family member believes they are better suited for the task, and the family becomes embroiled in controversy about who should serve as the guardian.

The entire problem can be resolved by working with an experienced estate planning attorney long before incapacity becomes an issue. A comprehensive estate plan will include a plan for distribution of assets (Last Will and Testament), Power of Attorney, Healthcare Power of Attorney and a Living Will.

These last two documents work together to describe your wishes for end-of-life care, medical treatment and any other medical issues you would want conveyed to healthcare providers.

Unfortunately, the pandemic revealed just how important it is to have these matters taken care of. If you did create these documents in the last few years, it would be wise to review them, since the people in key roles may have changed. While the idea of being on a respirator may have at one time been a clear and firm no, you may feel otherwise now.

A Healthcare Power of Attorney is an advance directive used to name a person, who becomes your “agent,” to make healthcare decisions. If there is no Healthcare Power of Attorney, physicians will ask a family member to make a decision. If no family can be reached in a timely manner, the court may be asked to appoint a legal guardian to be the decision-maker. In an urgent situation, the physician will have to make the decision, and it may not be the decision you wanted.

The Living Will explains your wishes for end-of-life care. For instance, if you become seriously ill and don’t want a feeding tube or artificial heart machine, you can say so in this document. You can even state who you do and do not wish to visit you when you are sick.

The best advice if you become incapacitated is to have a complete estate plan, including these vital documents you need, created by an experienced estate planning attorney. If you have an estate plan and have not reviewed it in the past three to five years, a review would be best for you and your loved ones. If you would like to learn more about powers of attorney, please visit our previous posts.

Reference: Watertown Daily Times (April 14, 2022) “If I become incapacitated, who makes healthcare decisions?”

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Have a Plan before You become Incapacitated

May 24, 2022

No one plans to be incapacitated, but life can – and often does – throw you a curve ball. Have a plan in place before you become incapacitated. If you became incapacitated and advance planning had been done, your family will have the legal documents you need. Just as importantly, they will know what your wishes are for incapacity and end-of-life care. If there was no planning, your loved ones will have to start with a lengthy application to the court to have someone named a guardian. They are a person who has legal authority to make medical decisions on your behalf.

Having a plan in place beforehand is always better, explains the article “If I become incapacitated, who makes healthcare decisions?” from Waterdown Daily Times.

Another reason to plan ahead: the court does not require the guardian to be a family member. Anyone can request a guardian to be appointed for another incapacitated individual, whether incapacity is a result of illness or injury. If no planning has been done, a guardianship must be established.

There are also many cases where one family member believes they are better suited for the task, and the family becomes embroiled in controversy about who should serve as the guardian.

These last two documents work together to describe your wishes for end-of-life care, medical treatment and any other medical issues you would want conveyed to healthcare providers.

The best advice is to have a plan in place, before you become incapacitated that is created by an experienced estate planning attorney. If you have an estate plan and have not reviewed it in the past three to five years, a review would be best for you and your loved ones. If you would like to read more about other important healthcare decisions, please visit our previous posts.

Reference: Watertown Daily Times (April 14, 2022) “If I become incapacitated, who makes healthcare decisions?”

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Mistakes can lead to an Invalid Will

May 11, 2022

One of the many reasons an experienced estate planning attorney is the best resource for creating an estate plan, including a Last Will and Testament, Power of Attorney and Health Care Proxy, is the confidence of knowing your estate plan has been properly prepared. People who believe they know better than an experienced lawyer, often send their families into a legal, financial, and emotional black hole after they die. Mistakes can lead to an invalid will. The article “Red Flags Indicating a Potentially Invalid Will” from The National Law Journal provides a closer look at why it pays to work with a professional.

When a decedent executes a new Last Will near the end of their life and makes a dramatic change to previous estate plans, there may be trouble ahead. When this is the case, several issues need to be examined to ensure that the document is valid. Strong consideration must be given to whether the person had sufficient capacity to execute the document.

When a person is suffering from an illness or near death, they may be susceptible to the improper influence of people who may cause them to make uncharacteristic changes to their estate plan. Any Last Will drafted within the last few months of a person’s life requires careful review.

If, shortly after a person has handed the reins of their financial life to another, using a Power of Attorney in any of its forms (Durable POA, Springing POA) and a new Last Will is created, a red flag should be raised, especially if the Last Will has been changed to benefit this person.

What if a person’s capacity was hovering near the borderline of capacity and incapacity? If a decedent’s mental capacity was questionable at the time the Last Will was executed, the Last Will may not be valid. A person with legal mental capacity must understand the assets they own and clearly understand to whom they are bequeathing assets. The standard for this issue is low, but if the decedent was suffering from a degenerative mental condition or a sudden onset of incapacity due to an illness or accident, the Last Will may be challenged.

If a layperson creates a Last Will or uses an online service to create it and the Last Will does not comply with the state’s estate laws, the Last Will may have technical issues rendering it invalid. When this occurs, it is as if there were no Last Will at all and the estate is distributed according to the laws of the state.

The biggest red flag is the presence of any large changes from the next to Last Will to the final Last Will, with no known reason for the change having been made. This may be a result of changes to mental capacity or undue influence of a third party. An experienced estate planning attorney is the best resource to create a Last Will. They will be among the first to ask why significant changes from a prior Last Will are being requested. Don’t allow mistakes to jeopardize your wishes and lead to an invalid will. If you would like to learn more about drafting a will, please visit our previous posts.

Reference: The National Law Journal (March 30, 2022) “Red Flags Indicating a Potentially Invalid Will”

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Documents you can use to Plan for Incapacity

May 4, 2022

There are a number of factors, such as illness or disability, that can cause someone to become incapacitated. You need to have a plan should the unthinkable happen. There are documents you can use to plan for incapacity. The chief reason for a Power of Attorney (POA) is to appoint an agent who can make decisions about business and financial matters if you become incapacitated, according to an article “Estate planning in case of incapacity” from The Sentinel-Record. For most people, the POA becomes effective at a later date, when the person signs a written authorization to act under the document, or when the person is determined to be incapacitated. This often involves having the person’s treating physician sign a notarized statement declaring the person to be incapacitated. This type of POA is referred to as a “Springing POA,” since it springs from a future event.

The challenge with a springing POA is that it requires reaching a point in the person’s life where it is clinically clear they are incapacitated. If the person has not yet been diagnosed with Alzheimer’s disease or another form of dementia, but it is making poor decisions or not able to care for themselves, it becomes necessary to go through the process of documenting their incapacity and going through the state’s process to activate the POA.

For a more immediate POA, your estate planning attorney may recommend creating and signing a Durable Power of Attorney. This allows you to appoint someone to manage personal and business affairs immediately. For this reason, it is extremely important that the person you name be 100% trustworthy, since they will have instant legal access to all of your property.

A Power of Attorney can be customized to include broad powers or limited to a specific transaction, like selling your home.

This is not the only way to allow another person to take over your affairs in the event of incapacity. However, it is easier than seeking guardianship or conservatorship. Another method is to place assets in a revocable trust, which allows you to maintain control of the assets while alive and of legal capacity. The trust includes a successor trustee, who takes over in the event you become incapacitated or die.

The successor trustee only has control of the assets owned by the trust, so if the purpose of the trust is planning for incapacity, many, if not all, of your assets will need to be retitled and put into the trust.

A properly created estate plan will often use both the Durable Power of Attorney and a Revocable Living Trust, when preparing for incapacity.

Sadly, many people fail to have these legal tools created. As a result, when they are incapacitated, the family must go to court to have a person appointed to manage their affairs. This is usually referred to as a “legal guardianship.” The proceeding to obtain a guardianship is lengthy and complicated. Once the guardianship is established, the guardian must file annual accountings with the court documenting how all of the funds are used. The guardian must also post a surety bond, designed to protect assets in case of improper use.

Guardianship and its costs and time-consuming tasks can all be avoided with a properly prepared estate plan, including planning for incapacity. Whether it be a POA, guardianship or conservatorship, make sure you plan to have documents prepared to use in case of incapacity. If you would like to learn more about POA and other incapacity documents, please visit our previous posts.

Reference: The Sentinel-Record (March 27, 2022) “Estate planning in case of incapacity”

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Planning for Special Needs Requires Care

May 3, 2022

Planning for loved ones with special needs requires great care. When a family includes a disabled individual, sometimes referred to as a “person with special needs,” estate planning needs to address the complexities, as described in a recent article titled “Customize estate plan to account for disabled beneficiaries” from The News-Enterprise. Failing to do so can have life-long repercussions for the individual.

This often occurs because the testator, the person creating the estate plan, does not know the implications of failing to take the disabled person’s situation into consideration, or when there is no will.

The most common error is leaving the disabled beneficiary receiving an outright inheritance. With a simple will, or no will, the beneficiary receives the inheritance and becomes ineligible for public benefits they may be receiving. The disruption can impact their medical care, housing, work and social programs. It may also lead to the loss of their inheritance.

If the disabled beneficiary does not currently receive benefits, it does not mean they will never need them. After the death of a parent, for instance, they may become completely reliant on public benefits. An inheritance will put them in jeopardy.

A second common error is naming the caregiver as the beneficiary, rather than the disabled individual. This causes numerous problems. The caregiver has the right to do whatever they want with the assets. If they no longer wish to care for the beneficiary, they are under no legal obligation to do so.

If the caregiver has any liabilities of their own, or when the caregiver becomes incapacitated or dies, the assets intended for the disabled individual will be subject to any estate taxes or creditors of the caregiver. If the caregiver has any children of their own, they will inherit the assets and not the disabled person.

The caregiver does not enjoy any kind of estate tax protection, so the estate may end up paying taxes on assets intended for the beneficiary.

The third major planning mistake is using a will instead of a trust as the primary planning method. A Special Needs Trust is designed to benefit a disabled individual to protect the assets and protect the individual’s public benefits. The trust assets can be used for continuity of care, while maintaining privacy for the individual and the family.

Planning for individuals with special needs requires great care, specifically for the testator and their beneficiaries. Families who appear to be similar on the outside may have very different needs, making a personalized estate plan vital to ensure that beneficiaries have the protection they deserve and need. If you would like to learn more about special needs issues, please visit our previous posts.

Reference: The News-Enterprise (March 15, 2022) “Customize estate plan to account for disabled beneficiaries”

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Succession Planning can Protect Family Legacy

April 25, 2022

Failing to have a succession plan is often the reason family businesses do not survive across the generations. Succession planning can protect the family legacy, according to the article “Planning for Success: How to Create a Suggestion Plan” from Westchester & Fairfield County Business Journals.

Start by establishing a vision for the future of the business and the family. What are the goals for the founder’s retirement? Will the business need to be sold to fund their retirement? One of the big questions concerns cash flow—do the founders need the business to operate to provide ongoing financial support?

Next, lay the groundwork regarding next generation management and the personal and professional goals of the various family members.

Several options for a successful exit plan include:

Family succession—Transferring the business to family members
Internal succession—Selling or transferring the business to one or more key employees or co-workers or selling the company to employees using an Employee Stock Ownership Plan (ESOP)
External succession—Selling the business to an outside third party, engaging in an Initial Public Offering (IPO), a strategic merger or investment by an outside party.

Once a succession exit path is selected, the family needs to identify successors and identify active and non-active roles and responsibilities for family members. Decisions need to be made about how to manage the company going forward.

Tax planning should be a part of the succession plan, which needs to be aligned with the founding member’s estate plan. How the business is structured and how it is to be transferred could either save the family from an onerous tax burden or generate a tax liability so large, as to shut the company down.

Many owners are busy with the day-to-day operations of the business and neglect to do any succession planning. Alternatively, a hastily created plan skipping goal setting or ignoring professional advice occurs. The results are bad either way: losing control over a business, having to sell the business for less than its true value or being subject to excessive taxes.

Every privately held, family-owned business should have a plan in place to establish what will happen if the owners die or become incapacitated.

An estate planning attorney who has experience working with business owners will be able to guide the creation of a succession plan and ensure that it works to complement the owner’s estate plan. With the right guidance, the business owner can work with their team of professional advisors to ensure that succession planning can protect the family legacy over generations. If you would like to learn more about succession planning, please visit our previous posts.

Reference: Westchester & Fairfield County Business Journals (March 31, 2022) “Planning for Success: How to Create a Suggestion Plan”

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Category: Incapacity

Minimizing Taxes should be a Part of your Plan

Be certain You’ve got Legal Documents for your College Kid

Identifying the Early Signs of Dementia

Latest Ways to Prevent Dementia

Documents You need if You become Incapacitated

Have a Plan before You become Incapacitated

Mistakes can lead to an Invalid Will

Documents you can use to Plan for Incapacity

Planning for Special Needs Requires Care

Succession Planning can Protect Family Legacy

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