Monday, April 3, 2017

Guardianship Abuse | How you can Protect Yourself


Summary: Courts, legislatures and attorneys general are continuing to come face-to-face with the ongoing scourge that is the misuse of guardianship legal proceedings in order to abuse seniors. While this abuse can often involve the loss of a senior's personal autonomy, it also often involves financial abuse, as well. There are certain things seniors can do to protect themselves, especially when it comes to estate planning. But taking pro-active steps to to put a complete estate plan into place, you can better protect yourself from the possibility of someone using the legal system against in order to seize control of your wealth.   

Another state is taking on the monumental task of trying to reform its system of adult guardianship and conservatorship. In this case, that state, as reported by the Associated Press in October 2016, is Nevada. That pursuit of reform came on the heels of a 15-month study into the system, which revealed far too many stories of "'abuse, fear and distrust' in the program." The state's Attorney General, who also promised to attack the problem, promised to do what his office could to prevent guardians from swindling the people they were supposed to be protecting.

The "flash point" that helped trigger this action was series of newspaper reports in the Las Vegas Review-Journal, which exposed a considerable amount of this abuse that was going on. "Some of the cases were just horrible to read," Barbara Buckley, the executive director of the Legal Aid Center of Southern Nevada, told the newspaper. "Individuals in this situation are being stripped of their civil liberties, the right to run their life as they see fit, without anyone speaking to them or advocating on their behalf."

Other states have discovered similar problems and have sought to put reforms into place to stop this abuse. One of the earliest sources splotlighting this problem of guardianship abuse was a book entitled, "The Retirement Nightmare," by Diane G. Armstrong. Originally published, in 2000, Armstrong's book sounded the alarm regarding how this previously relatively little-known part of the legal system was being abused to strip away seniors' rights and wealth.

In her book, Armstrong outlined several vital, and easy, steps people can take to reduce or eliminate their risk of being the subject of an unwanted and unneeded guardianship proceeding. Although the author published her book 16 years ago, her advice when it comes to estate planning is just as useful today as it was in 2000. First, Armstrong recommends "working with the right attorney." This of course, is key. An attorney experienced in the law of estate planning can give a full picture of the legal options available to you for your estate and make helpful recommendations regarding what estate planning tools will (or won't) help you achieve your planning objectives.

In her second and third points, Armstrong highlights executing the proper legal documents to carry out your planning goals. These documents, which make up a complete estate plan, include a will, a power of attorney for financial decisions, a power of attorney for healthcare decisions, a living will. Depending on your situation, you plan may also include a revocable living trust.

A living trust is often best-known for its potential benefits when it comes to avoiding probate. But a living trust may also offer a degree of protection when it comes to an involuntary guardianship, as well. Sometimes, people go to court asking a judge to declare your mentally incompetent and appoint someone to manage your assets (often known as a conservator or guardian of the estate,) in order to take the control of your assets away from you and put it in their hands. A living trust may help you avoid this potential pitfall. Your properly funded living trust may be able to help even if this were to happen. That's because, in your revocable living trust, you likely named yourself as the initial trustee and named one (or hopefully multiple) successor trustee(s,) whom the trust stated would take over managing the trust if you died or were declared incompetent. Therefore, even if a judge did make such a declaration, all that would happen in your case is that the management of your assets would pass from you to the person you named as your successor trustee when you signed your trust document. 

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

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8039 Cooper Creek Blvd
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Thursday, March 30, 2017

Joint Tenancy With Right of Survivorship | Possibly a Risky Proposition

Summary: There are many techniques that can help you avoid the potential costs and delays of probate. Just because all of these techniques can be entirely effective at avoiding probate does not, however, mean that they are all equal. With some of these techniques, the benefits of probate avoidance come with a downside of greater risks -- risks that your planning goals may be stymied, or that plan could end up requiring costly and time-consuming court litigation to sort out.   


Joint tenancy with right of survivorship (JTWROS) accounts, as well as pay-on-death or transfer-on-death accounts, can be wonderfully useful tools in some situations. Sometimes, they can even make up a helpful part of your overall estate planning. In certain circumstances, they can be a simple and low-maintenance way ensure that your assets pass to your desired beneficiaries without the hassles, costs and delays of probate administration. However, in many other situations, they can be risky. They pose the potential of having your money wind up in the hands of people other than the ones you wanted or, only less problematically, requiring expensive and stressful court litigation in order to get your wealth to the beneficiaries that you wanted to have it.

Take, for example, a case decided by the courts in September 2016. The case involved the estate of man named John, who was a senior in declining health in the final years of his life. He had both a checking account and a savings account. He had several people listed on his checking account as authorized signors. They included, in addition to John, his daughter, a grandson and the grandson's wife. On the savings account, authorized signors included John, the daughter and the grandson's wife.   

The problems arose shortly after John died. First, the grandson withdrew $22,000 from John's checking account. The grandson's wife then withdrew nearly $26,000 from John's savings account. This sum of almost $48,000 represented roughly 50% of the total amount in the two accounts combined. The couple claimed that they were entitled to the money because the accounts were joint accounts with right of surviviorship. In an account that is truly a JTWROS, all of the "tenants," or owners of the account, have equal claims to the account's assets in the event of the death of the account holders. 

Using these types of accounts as a probate-avoidance technique can be harmful in some situations. They can potentially put your wealth at risk if the person you've added to your account decides to use the account funds for his own purposes, rather than your goals. Alternately, even if the person you've added to your account is above reproach, your assets could still be at risk if that person divorces or is successfully sued by someone.

In John's case, the problem was a lack of clarity. If the account truly was a JTWROS asset, then the grandson and his wife had the legal right to withdraw the funds that they withdrew. However, John's daughter, in her lawsuit, claimed that the grandson and wife were not joint tenants; they were only added to John's accounts as signatories as a convenience to John. Ultimately, the courts sided with the daughter. The trial court ruled that the grandson and wife didn't have any evidence to show that John intended for the money in his checking and savings to pass to the daughter, grandson and grandson's wife as a JTWROS account would. If the outcome reached by the courts was not what John intended, then at least some of the objectives of his estate plan were frustrated. Even if the outcome did reflect John's goals for the money in his checking and savings, it took an expensive and time-consuming court battle to achieve this end.      

Careful planning can potentially help you avoid an unfavorable situation like what happened with this man's estate. There are ways to create a plan that will take the guesswork out of your planning goals. One example is a revocable living trust, which can allow you to dictate, with great specificity, exactly what you want to achieve with regard to each of your assets and each of your beneficiaries. In addition to this, it can also benefit you by avoiding probate while also sidestepping some of the risks involved with other probate-avoidance techniques like JTWROS accounts.   

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
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Monday, March 27, 2017

Trust Funding | You’ve Created Your Estate Plan With a Revocable Living Trust… Now What?


Summary: Proper estate planning is a process, not just a single task. Rather than being a single step, estate planning is more like an ongoing journey. Just because you have set up and executed a set of estate planning documents, that doesn’t mean your estate planning is “done.” This is especially true if you have a plan with a revocable living trust. Once you’ve put your signature on all of your documents, including your living trust, there are beneficial things you can begin doing almost right away to ensure that your plan will be properly maintained.             

One of the first things you can do, if you haven’t begun already, is put together a list of all your assets. You’ll need to list both your titled assets (like your home and vehicles, for example,) as well as your personal property (like furniture, jewelry and collectibles.) You’ll need each of these lists for two different reasons. For assets like real estate, vehicles and financial accounts, you will need to make certain that they are funded by executing the proper paperwork establishing that you have transferred ownership of that asset from you as an individual to you as the trustee of your trust. Of course, this means that one of the first things you’ll need to do after you’ve finished compiling your list is obtaining all of your current ownership documents, such as the deeds to all of your real estate properties and the titles to all of your vehicles. 

For your real estate, funding means obtaining a deed from an attorney putting the transfer into legal effect. For your vehicles, funding entails a trip to the DMV and re-titling the auto. For your financial accounts, the institution where you hold your account(s) probably has their own special proprietary paperwork they’ll require you to fill out to complete the transfer.    

When it comes to your personal property, especially specific items that you want to specifically distribute to a particular beneficiary, your list will be especially helpful in making certain these assets get funded, too. They get funded a bit differently, however, since they don’t have deeds, titles or other ownership paperwork. These assets get listed in a special place in your trust, which is usually referred as “Schedule A,” “Appendix A” or something similar. Listing these assets in your trust’s schedule is a means of putting down in writing your intent to transfer them from you to your trust, where they can be distributed in accordance with the special instructions you’ve laid out in your trust document.      

A popular self-help book from the 1990s advised, “Don’t sweat the small stuff.” That may be true in a lot of areas, but not when it comes to funding your trust. Here, you want to be more like Santa Claus, as in “making a list and checking it twice” in order to be sure you’ve not left anything out. Do you hold an ownership interest in a business like an LLC, partnership or corporation? These assets can potentially be transferred into your trust, depending on the business’s operating agreement or articles of incorporation. Do you hold any copyrights, patents or trademarks? The appropriate government office (the U.S. Copyright Office or the U.S. Patent and Trademark Office) have transfer forms. Additionally, if someone owes you money (whether from a loan or a legal judgment,) you can create a document that says that you are transferring, or assigning, your right to collect that debt to your trust. 

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
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Thursday, March 23, 2017

Revocable Living Trust | Your Estate Plan Can Protect You in Many Ways, Some of Which May Surprise You


Summary: Many people are aware that some forms of estate planning can offers a certain type of protection as one of their benefits; namely, protection. But they may also do more. They may protect you from the potential costs and delays of probate administration, they may protect you from the loss of privacy deriving from having the details of your estate become public record, they may possibly protect you from potentially unnecessary and stressful conservatorships proceedings in court, and they may even potentially protect you from claims by people professing to be your heirs who were left out of your plan. Properly drafted and implemented, a complete estate plan can do many things for you and your family, probably even more than you would have thought.           

A lot of people who are familiar with estate planning know that you can plan to avoid probate. Planning to avoid probate can help save you time, money and stress, as probate administration can be drawn out and expensive. An estate plan with a revocable living trust isn't the only way to avoid probate administration, but an estate plan with a living trust and its companion, the "pour over" will, can accomplish several other ends that may have great value for you. 

This form of planning may also protect your privacy. In many locations, probate administration case files are public record, meaning that anyone potentially can look at the contents of your estate simply by requesting your estate's file from the court clerk. If, however, your wealth is funded into a living trust, you avoid this as, in most states, living trusts and the distribution of their assets are not matters of public record and their details cannot be accessed by anyone with a file number. In addition, a plan with a properly funded living trust may be able to reduce the possibility of needing to go to court to seek appointment of a conservator to make financial decisions on your behalf should you become mentally incapacitated and be unable to make decisions for yourself. With a living trust, the management of your funded assets transfers seamlessly from you to the successor trustee you chose if you become incapacitated.

However, your estate plan with a living trust may provide you with an additional protection that is not as well known: protection against people claiming to be your long-lost children in order to get a portion of your wealth. Generally, the law assumes that all parents want to leave something to all of their children. So, in general, the laws have a default inheritance for children. This means that, if someone who isn’t in your will goes to court claiming to be your child, and the judge rules that they are legally your child, then they may get a “cut” of your estate. 

In some states, though, that rule applies only to a person’s probate estate. Oklahoma, for example, has explicitly ruled that these “pretermitted heirs” rights to a distribution do not extend to the assets funded into a living trust. In other words, if someone files a court claim alleging that they are your long-lost “love child,” and you have a fully funded living trust, then it doesn’t matter what the court decides about that person’s parentage, they still cannot take anything from your trust.

All this goes to show that proper estate planning, including the possibility of incorporating a living trust into your plan, has many potential benefits and multiple ways in which your plan can be a value protector to both you and your family.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan



                             
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Monday, March 20, 2017

Creating An Estate Plan | Don't Procrastinate Getting an Estate Plan, But if You Have, Don't Give Up!

Summary: When it comes to estate planning, the best time to act is right away. Acting promptly protects you from the many unexpected things that can crop up in life, whether they involve a loss of mental capacity or even sudden death. However, even if you've waited and your mental abilities are not what they used to be, do not simply assume that you are no longer allowed to create or update an estate plan. It is always best to consult experienced professionals who can explain exactly what the rules and what you are (or are not) allowed to do. You may have more options than you would have thought.

Helen Weste was a divorced woman living in New Jersey. When she reached her mid 60s, she executed a will. That will split Weste's assets between her sister, eight nieces and nephews and two charities. By 2001, Helen's health and mental sharpness started to decline. By April 2002, doctors diagnosed Weste with severe dementia. The family decided to move Weste into an assisted living facility. Earlier that year, Weste, who was 74 by this point, visited an attorney about her estate plan. She signed the new document in March 2002. That will left a small portion of her estate to one of the charities and two of the nieces, but gave her home and 90% of her remaining estate to John Brek, a neighbor who had befriended Weste and performed odd jobs around her house. The new will also named Brek as executor.

After Weste died in March 2010, the family admitted the 1994 will to probate. In 2011, Brek sought to probate the 2002 will. One of the nieces, Joanne Halkovich, challenged Brek's request to probate the newer will. She argued that her aunt lacked the mental capacity required to execute a will when she signed the newer will. Both sides had competing expert opinions regarding Weste's mental functioning. The niece had an expert who testified that Weste did not understand either who the recipients of her new will were or the volume of her assets. She also presented records from her aunt's treatment in April 2002, just a month after she signed the newer will. Those doctors rated Weste on a numerical functioning scale where 21-30 was considered "severe problems," and they gave Weste a score of 20. 

On the other hand, Brek also had an expert, and this psychologist testified that Weste had testamentary capacity. Weste's attorney also testified, stating that he'd been practicing law for more than three decades and had no doubt that Weste had the required mental capacity. The New Jersey courts ultimately sided with Brek. The requirement for testamentary capacity is a low bar. The trial judge pointed out that Weste was still living alone when she made the newer will, and if she had the functioning ability to live alone and care for herself, she had the capacity to make a will. The appeals court upheld that conclusion

Obviously, the best time to create or update your estate is.... NOW! Chances are very low that your clarity of mind will be higher in the future than it is today, but there is a very real chance that your mental functioning could decline in the future. Furthermore, none of us are promised tomorrow, meaning that you should get your current estate planning goals placed into valid written legal documents right away, so that you are prepared for whatever the future might bring.

However, if you've procrastinated, don't turn that error into a double mistake by thinking that the degree to which you've declined during that time of procrastination means that the door has been totally shut on your creating or updating your plan. Perhaps the biggest lesson to be taken from the case of Weste's will is that, in general, most states have a very low bar on what level of mental functioning you have to have in order to create or alter an estate plan document. Don't assume. Go out and seek definitive answers from experienced estate planning professionals. You'll be glad for the information and you may find out the answers are more favorable than you would have thought.    

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan



  
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Thursday, March 16, 2017

Powers of Attorney | Debunking 3 Common Myths


Summary: Like almost any legal document, there is confusion and misunderstanding that sometimes surrounds the legal document known as a power of attorney. By educating yourself about what these documents can (and cannot) do, you can develop a greater knowledge about how they function as an integral part of a complete estate plan, and have the peace of mind that goes with understanding which claims about these documents are actually just myths.

1) Signing a Power of Attorney (POA) document means surrendering control of your right to make your own decisions. This is a common misconception about POAs. This one is not true on a number of levels. First, in some states, you can execute what's called a "springing" POA. That means that the POA does not become effective, and the agent you name in the document does not possess any authority, until you have been properly declared to be mentally incompetent and unable to make your own decisions. Once you're declared legally incompetent, you've lost your ability to make your own decisions, anyway. All this type of POA does is put into writing the person you want to make your decisions once you cannot make them for yourself. In doing so, this may possibly reduce the need to go to court to have a judge appoint a conservator or guardian over you. Even if your POA is immediate, and not springing, you still have nothing to fear. Your POA simply adds another person (whom you've named) who can make these decisions. If, for example, you create an immediate POA for certain financial decisions that names your son as your agent, all that means is that, as long as you're alive and competent, either your son OR YOU may make those financial decisions on your behalf.        

2) You can only name a licensed attorney to act on your behalf under a POA. This is also not true and a misunderstanding of the terminology involved. A person who has passed the bar exam and been sworn in by their state's Supreme Court is an "attorney at law." Yes, it is true that another name for an agent named under a POA is an "attorney in fact," but there is no requirement that your attorney-in-fact have any sort of legal education, training or experience in order to be your attorney-in-fact. Your state may have certain requirements on who may serve as an attorney-in-fact, but none of those requirements have anything to with whether or not your proposed agent is, or is not, a licensed attorney-at-law. 

3) POAs are only for seniors. This isn't true and it can be a dangerous mistake for younger people to make. You are never too young to have a complete estate plan, including POAs, in place. One does not have to be older to suffer a sudden traumatic illness, be seriously injured at work or in a car, or suffer some other sort of major calamity that causes a loss of mental capacity or even premature death. If you care about what happens to your wealth, your minor children or yourself (or both,) then you need a complete estate plan in place. Having POAs in place will not involve giving up any control while you are alive and have mental capacity and, if something should happen that triggers a loss of capacity, then your POAs may be exactly the sort of planning needed to prevent your family from having to go through potentially expensive and stressful court proceedings to get a conservator or guardian named to make decisions on your behalf.  

They say that knowledge is power. This is definitely true when it comes to estate planning. By learning what information regarding estate planning is accurate and what are just myths, you can get a better handle on what your estate plan can do for you, and be better equipped to take an active role in creating or updating your plan to achieve the goals you want.  

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
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Monday, March 13, 2017

Leaving A Legacy | The Importance of Getting an Estate Plan to Secure the Legacy You Want

Summary: Court cases can teach a lot of useful lessons about planning our estates. A recent Georgia case about a will executed by a man with schizophrenia reminds all of us that, if you have non-traditional planning goals (like excluding family members from your plan while including non-relatives,) you need to make sure you have a plan executed. It also reminds us that, even if you have serious physical and mental problems, you may still be able to create an estate plan and establish the legacy you desire to leave behind. 


Joseph Schmidt battled many medical maladies during his life. In 1973, doctors diagnosed him with schizophrenia. Three years later, Dale Groenenboom was named as Schmidt's conservator and guardian. Two decades after that, Schmidt moved into the Savannah Square Personal Care Home outside Augusta, Georgia. The home's owners were Charles and Jerry Reeves. In 2010, Schmidt decided to create an estate plan. He executed a will that split all of his wealth between Groenenboom and the Reeveses. Schmidt had one sister, Judith Webb, to whom he left nothing.

When Reeves died in the fall of 2013, Groenenboom went to court, seeking to admit the will to probate. Schmidt's sister objected to probating the will. Her brother, she argued to the court, lacked the degree of mental capacity required by the law to execute a will. This lack of mental capacity made her brother's will invalid. A victory for the sister would mean that Schmidt had no estate plan and his assets would have been distributed under Georgia's intestacy laws. That would have meant that the sister would have been the sole heir of her brother's entire estate.

The case of Schmidt's will went all the way to the Georgia Supreme Court, with the courts ultimately deciding that the will was valid and that Groenenboom and the Reeveses were entitled to split Schmidt's estate. The sister tried unsuccessfully to convince the courts that her brother was too incapacitated to make a will, as proven by the fact that he did not know how much wealth he possessed and that he had memory problems. These arguments did not persuade the courts, because the law doesn't require you to know exactly how much you are worth in order to create a will, and it does not require that you be completely free of memory problems or lucidity issues. In this case, the law required the person challenging the will (Webb) to prove that the person executing the will (Schmidt) lacked even a general understanding of what property would be passed under the terms of his will, or to prove that Schmidt was not lucid at the exact time that he executed the will. The sister didn't have this evidence, so she lost.

The case of Schmidt's estate plan can teach us some important lessons, though. First, if the estate planning goals you want to accomplish include disinheriting a close relative, or leaving a distribution to non-relatives --- and especially if your goals include both of these things --- it is imperative that you get an estate plan in place. Intestacy laws assume that people want to leave their wealth to their close family members, so if you have different objectives, you need valid, carefully written legal documents in place saying so. Second, do not assume that you are prohibited from creating an estate plan due to your health problems. Schmidt had schizophrenia, kidney cancer and memory problems, just to name a few, but he was still mentally competent under the laws of his state to execute a will. Because he took this important step, he was able to leave behind the legacy he wanted. 

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan



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