Category: Disability

Mistakes can lead to an Invalid Will

Mistakes can lead to an Invalid Will

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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Planning for Special Needs Requires Care

Planning for Special Needs Requires Care

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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What Do You Need to Age in Place?

What Do You Need to Age in Place?

Many Americans prefer the idea of living out their gold years at home and “age in place”, rather than relying on family or assisted living. So what do you need to age in place? Home modification is the official term (from the Americans with Disabilities Act) for renovations and remodels aimed for use by the elderly or the impaired. It means physically changing your home, removing potential hazards and making it more accessible, so you can continue living in it independently.

Bankrate’s recent article entitled “The best home modifications for aging in place” reports that home modifications can be pricey—typically ranging from $3,000 to $15,000, with the average national spend being $9,500. However, it can be a worthwhile investment. You can save money by doing the right home modifications. That is because the longer you can safely live in your home, the less you will need to pay for assisted living care.

The best aging-in-place home modifications align with “universal design,” an architectural term for features that are easy for all to use and adaptable, as needs dictate. This includes additions and changes to the exterior and interior of a home. Some of the simplest home modifications include DIY jobs:

  • Adding easy-grip knobs and pulls, swapping knobs for levers
  • Installing adjustable handheld shower heads
  • Rearranging furniture for better movement
  • Removing trip hazards; and
  • Installing mats and non-slip floor coverings.

Next, are some more complex home modifications. These probably would need a professional contractor, especially if you want them up to code standards:

  • Installing handrails
  • Adding automatic outdoor lighting
  • Installing automatic push-button doors
  • Leveling flooring; and
  • Installing doorway ramps

There are also home modifications that can be done by room:

  • In the bathroom, installing grab bars and railing, a roll- or walk-in shower/tub, or a shower bench
  • In the kitchen: adding higher countertops, lever or touchless faucets and cabinet pull-out shelves
  • For the bedroom, use a less-high bed, non-slip floor, walk-in closets and motion-activated lights
  • Outside, you can add ramps, a porch or stair lifts, and automatic push button doors.

Finally, throughout the house, keep things well-lit and widen hallways and doorways; add a first-level master suite, elevators or chair lifts, “smart” window shades/thermostats/lighting and simpler windows.

Note that some home modifications may qualify as medical expenses. As a result, they are eligible for an itemized deduction on your income tax return. A home modification may be tax-deductible as a medical expense, if it has made to accommodate the disabilities (preferably documented by a physician or other health care provider) of someone who lives in the home, according to the IRS. Home modifications may not be the only thing you need to age in place. Speak with an experienced elder law attorney who will be familiar with many of the types of assistance available to keep you in your home. If you would like to learn more about elder care, please visit our previous posts. 

Reference: Bankrate (March 30, 2022) “The best home modifications for aging in place”

 

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Advance Care Planning a Benefit to Seniors

Advance Care Planning a Benefit to Seniors

Advance care planning (ACP) is an ongoing discussion that involves shared decision-making to clarify and document an individual’s wishes, preferences and goals regarding their medical care. This is extremely important to making certain that they get the medical care they want, if they become incapacitated and unable to make their own decisions. Advance care planning is a major benefit to seniors. Despite the importance of ACP, most Americans don’t have their medical wishes documented, according to Medical Life Sciences News’ recent article entitled “Comprehensive approach may promote Advance Care Planning for elderly adults.”

In the pandemic, too many families exhausted themselves attempting to address this issue, agonizing over what their loved one might have chosen for their care if they had been given the chance.

Dr. Angelo Volandes, MD, MPH, physician and researcher, Division of General Internal Medicine at Massachusetts General Hospital, and colleagues started the Advance Care Planning: Communicating with Outpatients for Vital Informed Decisions (ACP-COVID) pragmatic trial. This experiment was designed to see if ACP participation during the pandemic would increase following implementation of video decision aids and clinician communication skills training. They also looked at how these interventions would affect ACP documentation among patients from ethnic and racial minority groups, specifically African Americans and Hispanics.

The trial included a large, diverse patient population aged 65+ from 22 outpatient clinics at Northwell Health, the largest healthcare system in New York State. ACP documentation from three six-month time periods was compared:

  1. Pre-COVID-19
  2. The first wave of COVID-19; and
  3. An intervention period.

The findings showed that ACP documentation was significantly greater among all groups during the intervention period, with African American and Hispanic patients showing the most significant increases.

“The stark disparity in COVID-related outcomes for African American and Hispanic patients highlights a reality already known by many: our healthcare system routinely fails to meet the needs of minority patients. No one intervention or initiative is going to correct all those failings though advance care planning, through engaging and empowering patients, is one of the most effective, immediate ways to address disparities in care,” adds Volandes, who is also an Associate Professor of Medicine at Harvard Medical School.

“Fundamentally, advance care planning aims to empower patients. The results of our study demonstrate the importance of meeting patients where they are,” adds Volandes. “Whether that means providing information in their native language or sharing educational material via text rather than a patient portal, if advance care planning is to be about the patient and we need to find ways to ensure that they feel they have the knowledge and ability to make decisions alongside their clinicians when they deem the time is right. COVID-19 has made ACP more important than ever, and especially in communities that have been hardest hit by the pandemic.” The bottom line is that advance care planning can be a huge benefit to seniors and their caregivers. Work closely with an elder law attorney to begin the planning process. If you would like to learn more about long-term care and nursing home planning, please visit our previous posts. 

Reference: Medical Life Sciences News (Feb. 28, 2022) “Comprehensive approach may promote Advance Care Planning for elderly adults”

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Why You should review Estate Planning

Why You should review Estate Planning

There is a line from John Lennon that states, “Life is what happens to you while you’re busy making other plans.” This is especially true when reviewing your estate planning. Maybe your estate plan was created when you were single, and there have been some significant changes in your life. Perhaps you got married or divorced. You also may now be on better terms with children with whom you were once estranged. This is why you should periodically review your estate planning to ensure they are accurate and up-to-date.

Tax and estate laws can also change over time, requiring further updates to your planning documents.

WMUR’s recent article entitled “The ‘final’ estate-planning step” reminds us that change is a constant thing. With that in mind, here are some key indicators that a review is in order.

  • The value of your estate has changed dramatically
  • You or your spouse changed jobs
  • Changes to your income level or income needs
  • You are retiring and no longer working
  • There is a divorce or marriage in your family
  • There is a new child or grandchild
  • There is a death in the family
  • You (or a close family member) have become ill or incapacitated
  • Your parents have become dependent on you
  • You have formed, purchased, or sold a business;
  • You make significant financial transactions, such as substantial gifts, borrowing or lending money, or purchasing, leasing, or selling assets or investments
  • You have moved
  • You have purchased a vacation home or other property in another state
  • A designated trustee, executor, or guardian dies or changes his or her mind about serving; and
  • You are making changes in your insurance coverage.

Your should review your estate planning after every major change of life. Sit down with your estate planning attorney and take the time to review your planning. If you would like to read more about making changes to your estate planning, please visit our previous posts.

Reference: WMUR (Feb. 3, 2022) “The ‘final’ estate-planning step”

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When does someone need a guardian?

When Does Someone Need a Guardian?

When does someone need a guardian? When a person is legally deemed incapable of managing their own affairs and has not named a financial power of attorney to do so, a guardian or conservator may be needed. A family member may be appointed to the task, as explained in a recent article “What to Do When a Family Member Needs a Guardian” from Kiplinger.

Guardians are usually responsible for personal affairs, while a conservator is generally limited to financial matters. These terms vary by state, so ask the estate planning attorney which ones are most appropriate for your situation. In many cases, one person takes on both roles.

The control over another person’s life and money has been in the news a lot lately. The years-long battle between Brittney Spears and her father showed how things can go wrong, as did the movie “I Care a Lot,” about a professional guardian who steals life savings from elderly people.

It is better for an adult child to care for a parent through the use of Power of Attorney and Healthcare Power of Attorney than having to go to court to gain control through a guardianship. Having these documents prepared while the person still has legal capacity to execute them is far easier and less costly. Guardianship and conservatorship are last resorts when no prior planning has been done.

How does it work? Rules vary from state to state, but generally, a person—referred to as the petitioner—files a petition with a local court to seek guardianship. A judge holds a hearing to determine whether the person in question, known as the respondent, meets the state’s standards for needing a guardian. The respondent has a right to have an attorney represent them, if they do not feel they need or want to have a guardian.

Guardianship does more than give another person the right to make financial decisions for another person. Under guardianship, a person may lose the right to vote, marry, travel, or make certain medical decisions. Courts are often reluctant to take away all of these rights. In many states, courts are allowed to limit the guardian’s authority to managing bills and maintaining a home.

The least intrusive option is preferable, which would be using the Power of Attorney and Health Care Power of Attorney in the first place.

Another point—most courts will not grant a guardianship, if a person is physically disabled but mentally sharp. Making bad decisions, like handling money irresponsibly, or keeping company with people who are potentially preying on a senior, is not enough reason to put someone under guardianship. You cannot always protect someone from themselves.

However, the need for guardianship is clear if a person has suffered a stroke and is in a coma or is suffering from dementia. Other reasons are severe depression where a person cannot function or delirium, when a person is unaware of their environment and confused by everything around them. Delusional disorders are also reasons for guardianship.

When the person meets the standard of need, the courts typically prefer to appoint a family member. However, if there is no appropriate person, a public guardian paid by the state or a professional guardian paid by the family can be appointed.

Filing a guardianship petition can cost thousands of dollars, and a professional guardian can charge upwards of $250 an hour. Most guardians are well meaning, but often run into conflicts with family members. The guardian’s job is to protect the person, not serve the interest of the family. If the family’s sole interest is in protecting their inheritance, the guardian can find themselves in a difficult situation.

Family members serving as guardians can also find themselves in difficult situations. The guardian, whether a professional or family member, must keep meticulous records of any monies spent and the tasks performed on behalf of the person.

The process of determining when someone needs a guardian is complicated and time consuming. The best solution is to prepare in advance with a Power of Attorney, Healthcare Power of Attorney and all of the estate planning documents needed so the family can act without court intervention, the costs of applying for guardianship and the possibility of a professional guardian being appointed. If you would like to read more about guardianship, please visit our previous posts. 

Reference: Kiplinger (Jan. 25, 2022) “What to Do When a Family Member Needs a Guardian”

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The Estate of The Union Episode 14: Needle in a Haystack – Finding the right Caregiver is out now!

The Estate of The Union Episode 14: Needle in a Haystack – Finding the right Caregiver is out now!

Getting squeezed between being a parent and caring for an adult parent? Looking for a caregiver for an aging relative? In this episode of The Estate of the Union, Brad Wiewel interviews Lina Supnet-Zapata with Mir Senior Care Consultants. Mir is a care management resource for finding great elder care and personalizing it to fit the family. Not everyone is cut out for assisting older people because the job requires a unique skillset and, more importantly, empathy. There are things you need to know before hiring someone as a caregiver for the elderly. Brad and Lina have a lively discussion that covers all the bases in senior care management. Finding the right caregiver can be difficult. It ain’t over easy, but it’s achievable!

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand.

It is Estate Planning Made Simple!

To learn more about Lina Supnet-Zapata and Mir Senior Care Consultants, please visit their website:

 

https://mircareconsultants.com/

 

The Estate of The Union Episode 14: Needle in a Haystack – Finding the right Caregiver can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. Please click on the link below to listen to the new installment of The Estate of The Union podcast. You can also view this podcast on our YouTube page. The Estate of The Union Episode 14 is out now. We hope you enjoy it.

 

Texas Trust Law/Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

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Preventing long-term care abuse

Preventing Long-Term Care Abuse

Elder financial abuse is always upsetting, but it’s even worse when a parent is in a long-term care facility and adult children aren’t there to prevent it or stop it. This is especially true during the pandemic, when restrictions meant to keep residents safe from COVID make them more vulnerable to scammers. Preventing long-term care abuse should be top of mind for adult children.

The federal Consumer Financial Protection Bureau recently released a guide to prevent this very same problem, as reported in the article “Preventing Elder Financial Abuse When Your Parent Is In Long-Term Care” from next avenue.

The goal is to help professionals who work with the facilities to recognize red flags, develop policies and protocols and use technology to prevent residents from becoming victims. There’s also a lot of good information in the guide for the children of residents.

One reason elder financial abuse occurs so easily in long-term care facilities is because members of care teams can easily get access to financial records as well as medical records. Putting protections in place before financial abuse happens is the best strategy.

Banking and credit card accounts should be monitored regularly, and fraud alerts should be set up to be sent to the individual and a designated, trusted contact. An outside professional may also be hired to watch over the person’s finances.

Experts recommend listening to their loved ones during visits, online or in person. When a senior complains about money or personal belongings going missing, don’t assume these are part of cognitive issues. Take steps to investigate and document findings.

If an aging parent mentions a strange phone call or an unusual request by a staff member, immediately check their accounts, even if they insist no personal information was shared. Scammers are very good at what they do and can easily convince a victim nothing wrong has occurred. Even if something didn’t occur this time, a single phone call or conversation may be a warning of the parent being on someone’s radar as a possible victim.

Pay attention if small amounts of cash are missing from accounts. Scammers typically begin small, testing the waters to see if the person, their family, or the financial institution is paying attention. Banks cannot discuss your parent’s finances with their investment advisor, due to privacy rules, so the designated family member needs to be in touch with any institutions handling their money.

One of the most common ways of preventing long-term care abuse is a durable Power of Attorney. If no family member has been given Power of Attorney over financial accounts, this is a must-do, as long as the parent has legal capacity to grant this power. The POA gives the person the legal ability to manage financial accounts. If the person is incapacitated, it may be necessary for the child to be named guardian. An estate planning attorney will be able to discuss the situation and recommend the best way forward for the individual and their family. If you would like to learn more about elder financial abuse, or long-term care abuse, please visit our previous posts. 

Reference: next avenue (Dec. 17, 2021) “Preventing Elder Financial Abuse When Your Parent Is In Long-Term Care”

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What are Home Caregiving Options for Parents?

What are Home Caregiving Options for Parents?

At least 2.4 million U.S. workers provide in-home personal and health care for older adults and people with disabilities. That number has more than doubled since 2010, according to PHI, a New York–based nonprofit advocacy group that works to improve the quality of direct-care services and jobs. What are the best home caregiving options for your parents?

AARP’s recent article entitled “How to Hire a Caregiver” says that a shift in long-term care from institutional settings like nursing facilities to those aging in place in their own homes and communities has fueled the growth. This is also likely to continue as the population ages. The U.S. Census Bureau projects that the 65-and-older population, which was just over 54 million in 2019, will grow to 94.7 million by 2060.

There are several types of paid in-home caregivers that provide a range of services.

  • Personal Care Aides. PCAs aren’t licensed and have varying levels of experience and training. They serve as helpers and companions. They can provide assistance with bathing, dressing and do some housekeeping, as well as transportation to shopping and appointments. Training requirements for caregivers vary by state, and some states have no formal standards. This will be an out-of-pocket expense because Medicare or private health insurance typically doesn’t cover them.
  • Home Health Aides. HHAs monitor the patient’s condition, check vitals and assist with activities of daily living, such as bathing, dressing and using the bathroom. HHAs also provide companionship, do light housekeeping and prepare meals. This group must meet a federal standard of 75 hours of training. Their training and certification varies by state.
  • Licensed Nursing Assistants (LNAs) and Certified Nursing Assistants (CNAs). LNAs and CNAs observe and report changes in the patient, take vital signs, set up medical equipment, change dressings, clean catheters, monitor infections, conduct range-of-motion exercises, offer walking assistance and administer some treatments. Any medical-related tasks are performed as directed by a registered nurse (RN) or nurse practitioner (NP). CNAs also provide help with personal care, such as bathing, bathroom assistance, dental tasks and feeding, as well as changing bed linens and serving meals. As with home health caregivers, federal law requires nursing assistants to get at least 75 hours of training, but some states have other requirements.
  • Licensed Practical Nurses (LPNs). These skilled nursing providers have to meet federal standards for health and safety and are licensed by states. They evaluate, manage and observe a senior’s care and provide direct care that nonmedical and home health aides can’t. Their tasks could include administering IV drugs, tube feedings, and inoculations; changing wound dressings; and educating caregivers and patients. Some LPNs are trained in occupational therapy, physical therapy and speech therapy. Medicare covers home health skilled nursing care that is part-time or intermittent, doctor-prescribed and arranged by a Medicare-certified home health agency.
  • Registered Nurses (RNs). This group has a nursing diploma or an associate degree in nursing. They’ve passed the National Council Licensure Examination and have satisfied the other licensing requirements mandated by their state’s nursing board. RNs provide direct care, administer medications, advise family members, operate medical monitoring equipment and assist doctors in medical procedures.

These are some of the best home caregiving options for your parents. Work closely with an elder law attorney to ensure you have all of the options available to you and your family. If you would like to learn more about home care, and other long term care issues, please visit our previous posts. 

Reference: AARP (Sep. 27, 2021) “How to Hire a Caregiver”

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When should You Consult an Elder Law Attorney?

When should You Consult an Elder Law Attorney?

Elder law attorneys assist seniors or their family caregivers with legal issues and planning that related to the aging process. These attorneys frequently help with tax planning, disability planning, probate and administration of an estate, nursing home placement and many other legal issues. When should you consult an elder law attorney?

Forbes’ recent article entitled “Hiring an Elder Law Attorney,” explains that elder law attorneys are specialists who work with seniors or caregivers of aging family members on legal matters that older adults face as they age. Many specialize in Medicaid planning to help protect a person’s financial assets, when they have Alzheimer’s disease or another debilitating illness that may require long-term care. They can also usually draft estate documents, including a durable power of attorney for health and medical needs, and even a trust for an adult child with special needs.

As you get older, there are legal issues you, your spouse or your family caregivers face. These issues can also change. For instance, you should have powers of attorney for financial and health needs, in case you or your spouse become incapacitated. You might also need an elder law attorney to help transfer assets, if you or your spouse move into a nursing home to avoid spending your life savings on long-term care.

Elder law attorneys can help with a long list of legal matters seniors frequently face, including the following:

  • Preservation and transfer of assets
  • Accessing health care in a nursing home or other managed care environment and long-term care placements
  • Estate and disability planning
  • Medicare, Social Security and disability claims and appeals
  • Supplemental insurance and long-term health insurance claims and appeals
  • Elder abuse and fraud recovery
  • Conservatorships and guardianships
  • Housing discrimination and home equity conversions
  • Health and mental health law.

The matters listed above are all issues that should motivate you to consult an elder law attorney. Certified Elder Law attorney Melissa Donovan at Texas Trust Law can help! If you would like to learn more about elder law, please visit our previous posts. 

Reference: Forbes (Oct. 4, 2021) “Hiring an Elder Law Attorney”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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