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When Do I Need a Power of Attorney?

Without a valid durable power of attorney, the answer really depends on what documents need to be signed.

A power of attorney is a legal document signed by the “Principal,” granting the authority to another individual the Agent to make decisions on the Principal’s behalf. This document is only in effect during the lifetime of the Principal.

nj.com’s recent article on this topic asks “Who can sign for an incapacitated person if there’s no power of attorney?” The article noted that to have the authority to conduct financial transactions concerning the assets solely owned by the incapacitated person who failed to execute a power of attorney, a guardian will have to be appointed by the court.

A guardianship is a legal relationship established by the court, in which an individual is given legal authority over another when that person is unable to make safe and sound decisions regarding his or her person, or property.

For example, in New Jersey, an application will have to be filed in the probate part of the Superior Court, in the county where the incapacitated person resides.

If it’s not an emergency, a guardian also will need to be appointed to make medical decisions for an incapacitated person who hasn’t signed a health care proxy. This is a legal document that gives an agent the authority to make health care decisions for an incapacitated person. It will take effect, if the person is incapacitated or unable to communicate. The agent will make decisions that reflect the wishes of the incapacitated individual.

It’s typically not necessary to be appointed as an agent under a power of attorney or health care proxy or legal guardian for another person to sign an assisted living or nursing home admissions contract or a Medicaid application.

However, prior to signing another person’s admissions contract, read the fine print to be certain that you don’t become responsible for the bills!

Reference: nj.com (July 22, 2019) “Who can sign for an incapacitated person if there’s no power of attorney?”

 

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Understanding Why a Last Will and Testament is Important

These questions presented by The Westerly Sun in the article “Making a will is an important legal step,” may seem very basic, but many people don’t really understand how wills work and why they are such an important part of estate planning. Let’s go through these fundamentals about a Last Will and Testament.

A will is a legal document that must be prepared under very strict standards to explain your wishes about how you want your estate–that is, your property, money, tangible possessions, and real estate—distributed after you die.

A Last Will and Testament also does more than that.

A will, which is sometimes referred to as a “Last Will and Testament,” also makes clear who you want to be in charge of your minor children, if both parents should die. It also is how you name a person to be in charge of your affairs after death, by naming them as executor of your estate.

A complete estate plan includes a will, and several other documents, including a power of attorney, trusts and a health care proxy. The goal of all of these documents is to make it easier for your surviving spouse or loved ones to take care of you and your possessions, if you become too ill to speak on your own behalf, or when you die.

Your will provides instructions about what happens to your estate. Who should receive your money and property? These instructions must be followed by the person you choose as your executor. The local probate court must give its approval, and then the estate can be distributed.

If you have a valid Last Will and Testament, it is admitted to probate (a court process) upon your death, and then your wishes are followed. If you don’t have a will, you are said to have died “intestate.” The laws of the state, and not you, and not your loved ones, will decide what will happen to everything you own that is subject to probate. Usually this means that assets are distributed to family members, based on their degree of kinship with you.

This may not be what you wanted. If you have children, and especially if you have children with special needs, the court will appoint a guardian for those children. You may not want Aunt Jennifer raising your daughters, but that may end up happening.

Properly prepared by an experienced estate planning attorney, a Last Will and Testament is a binding legal document that carries great significance. No one likes to think about dying, or becoming incapacitated, but by planning ahead, you can determine what you want to happen, and protect those you love.

Reference: The Westerly Sun (August 18, 2019) “Making a will is an important legal step”

 

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Over-Medication of Nursing Home Residents
taking prescription pill with milk

Over-Medication of Nursing Home Residents

Nursing homes are supposed to administer prescribed medications to residents. Appropriate use of these substances can treat illness and improve the quality of life for the senior. The problem arises when nursing homes use drugs to control the behavior of residents and make them easier to “handle,” instead of providing good care. The over-medication of nursing home residents, also called “chemical restraints,” is an issue across the nation.

An Overview of the Misuse of Antipsychotic Drugs

Some nursing homes keep their residents in a “zombie” state, drugged up on powerful antipsychotic medications, even though the seniors do not suffer from psychotic illnesses. These drugs can make a person drowsy, compliant and less physically active. When in such a state, the resident requires and receives little personal care from the facility.

Long-term care centers started using these chemical restraints, when state and federal legislation outlawed the routine use of physical restraints on people who live in nursing homes. Before those laws, many long-term care facilities would tie residents to their beds at night, and into chairs during the day. Drugging nursing home residents for the purpose of staff convenience, as opposed to a legitimate medical reason, is illegal. Both Medicaid and Medicare prohibit this treatment, yet the behavior continues.

The Dangers of Chemical Restraints

In addition to the assault on the resident’s dignity and the administration of drugs without informed consent, the misuse of anti-psychotic drugs can kill a senior, particularly one who suffers from dementia. These medications interfere with the way a person thinks, reacts and feels.

Resources for Dealing with the Misuse of Drugs on Nursing Home Residents

The National Long-Term Care Ombudsman Resource Center (NORC) developed a toolkit for families and residents to use when dealing with the issue of chemical restraints. You can learn about the symptoms of misuse of antipsychotic drugs, what rights the residents have to be free from this improper drugging without consent and how to advocate for your loved one, if you suspect the nursing home is using chemical restraints.

Alternative to the Misuse of Psychotic Drugs

When a resident’s conduct presents issues for the staff or other residents, some nursing homes prescribe antipsychotic medications to chemically restrain the resident whose behavior is at issue. Things like wandering into other residents’ rooms, aggressiveness, anger and anxiety are some examples of the conduct that can lead to the use of chemical restraints.

The long-term care facility should try these alternatives instead of drugging the resident:

  • Discover the cause of the behavior. Merely applying the label of “problem” does not address the situation adequately. Find out why the resident engages in the unwanted conduct.
  • Develop a care plan tailored to the resident to deal with the behavior.
  • Establish a protocol of good care for the patient that incorporates things like increased time outdoors, more physical exercise, monitoring and treating both acute and chronic pain, planning activities for the individual resident, having enough staff, and training the staff on how to provide good patient care without using physical or chemical restraints.

If you suspect your loved one’s nursing home is using chemical restraints, contact your state’s ombudsman about the steps you should take.

Your state might have different regulations than the general law of this article. You should talk to an elder law attorney near you.

References:

National Consumer Voice. “Antipsychotic Drugs.” (accessed August 15, 2019) https://ltcombuds man.org/issues/misuse-of-antipsychotic-drugs

 

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Get the Facts About Dementia Care

A person with Alzheimer’s disease or another form of dementia might need to move into a specialized care facility for his own safety and medical care. If you have a loved one in this situation, you need to know about the options available for dementia care in assisted living and nursing home facilities.

The Alzheimer’s Association created practice recommendations for nursing homes and assisted living facilities that offer dementia care for residents. These guidelines focus on six care areas:

  • Food and fluid consumption
  • Pain management
  • Social engagement
  • Wandering
  • Falls
  • Physical restraints

Care Recommendations about Food and Fluid Consumption

People with dementia do not always make good choices about the food and liquid they consume. They might not consume enough to meet their nutritional or hydration needs, or they might consume items with little nutritional value. As a result, their health and comfort can suffer.

Facilities that provide dementia care should:

  • Perform initial and routine periodic assessments of each resident’s food and fluid consumption status.
  • Develop procedures that ensure the residents consume proper food and liquids.
  • Make mealtimes enjoyable events, where staff interact with the residents and assess the food and fluid in a pleasant social setting.

Residents with physical challenges that make eating or drinking difficult should receive assessment by qualified professional specialists.

Pain Management Care Recommendations

Because many people with dementia have difficulty communicating, they under-report their pain and do not receive the treatment they need. Untreated pain is one of the main reasons why nursing home residents develop undesired behavioral symptoms and receive psychotropic drugs to manage their behavior, instead of getting relief from their pain.

Dementia care should include:

  • Including pain assessment in every vital signs check, along with pulse, temperature, blood pressure and respirations. Consider pain as the “fifth vital sign.”
  • Routinely treat pain just as one would address problems with any other vital sign.
  • Customize the pain management techniques for each resident, taking into account the individual’s risks, medical conditions, needs and other relevant circumstances.

Appropriate pain management can improve the resident’s quality of life.

Guidelines for Social Engagement

Every day, the facility should offer multiple opportunities for residents with dementia to engage in fun, meaningful social activities. The nursing home or assisted living center should consider each resident’s interests and functional abilities. A roomful of residents sitting in their wheelchairs passively watching a staff member perform an activity has little meaning for them, as compared to an event in which the residents can actively participate.

The home should respect each resident’s preferences, including a desire for solitude or downtime. The staff should never force a resident to participate in an activity.

Recommendations about Wandering

Many people with dementia engage in a behavior called wandering. Often, the resident wanders because he is physically uncomfortable, in emotional distress, is bothered by something in his environment, or is looking for social contact.

Facilities that offer dementia care need to encourage the resident to be mobile and physically active, but provide a safe and independent means for him to do so. Some dementia care facilities have hallways that loop around in a circle, so residents can satisfy the need to walk without ending up far from their rooms.

The center should assess the reasons for the individual’s wandering and try to meet those needs.  The facility should also develop protocols that prevent unsafe wandering, including exit seeking.

Guidelines to Prevent Falls

The facility should assess each resident’s risk of falling to prevent injuries. Fall injuries can rob a resident of her mobility. The center should implement measures that reduce the risk of falling. Physical restraints lead to fall injuries. For this and other reasons, nursing homes should avoid the use of physical restraints.

Recommendations on the Use of Physical Restraints

Sometimes a nursing home will use physical restraints under the misguided notion these devices keep residents safe. However, in fact, restraints often harm residents. Facilities should identify the reasons for undesired behavior and address those issues without using restraints. The staff should receive training on restraint-free techniques for keeping residents safe.

Every state has different laws, and your state’s regulations might vary from the general law of this article. You might want to talk to an elder law attorney near you.

References:

National Consumer Voice. “Dementia Care.” (accessed August 15, 2019) https://ltcombudsman.org/issues/dementia-care

 

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How Do I Get an Executor to Sell My Mom’s Home?
Businessman with Coat and Tie Holding House.

How Do I Get an Executor to Sell My Mom’s Home?

It’s not uncommon for a parent to leave his or her home to their children in equal shares but getting the executor to sell the home is not always easy.

Let’s assume that two sisters are both equal beneficiaries of their mother’s estate in New Jersey. Each adult child has retained an attorney. The executor, who’s a family friend, is moving slowly with the probate process, and it’s been more than a year of waiting. The executor of estate is the individual who is specifically designated in the deceased’s will to manage the estate.

In this case, the glacier-like progress of the executor is causing a strain on the sisters’ relationship. This results in the sisters fighting over the estate. One sister is in no hurry to sell the house, and the other feels frustrated and may have to just give her everything and walk away to save her sanity.

nj.com’s recent article on this topic asks “My mom’s executor won’t sell the house. What can I do about it?” The article says that these sisters probably tried to negotiate a resolution. However, there’s no reason to think the only way to resolve this is for you to “give her everything and walk away.”

The executor should sell the home and distribute the proceeds to the sisters.

If one of the children, her attorney, or the executor object to the sale of the home, a judge may need to intervene.

If there’s no issue, and the executor won’t act, a beneficiary can apply to the court to remove the executor. The judge may then name the two sisters as co-executors, so they can sell the home.

Although there would be legal fees and costs to go to court to get some action, if the executor won’t move, there may not be any other choice.

In addition, the sisters could ask the judge to decrease any executor commission that would be owed to the original slow-moving executor to cover the legal fees, if the judge agrees that the executor was acting improperly.

Reference: nj.com (August 10, 2019) “My mom’s executor won’t sell the house. What can I do about it?”

 

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What’s the Difference Between a Life Estate and an Irrevocable Trust?

Investopedia’s recent article asks “Life Estate vs. Irrevocable Trust: What’s the Difference?” The article explains that a life estate and an irrevocable trust are two different ways to make certain that assets are transferred to the right party. Each of these has advantages and disadvantages.

A life estate that’s used to gift property will divide the ownership between the giver and receiver. Some parents create a life estate to reduce their assets to qualify for Medicaid. While the parent still has some interest in the property, Medicaid doesn’t count it as an asset. A life estate lasts for the lifetime of its creator and it prohibits the selling of the asset, without the permission of its beneficiaries. Therefore, a parent can’t sell a home without the permission of his children, if they are beneficiaries of the life estate.

If you’re attempting to be eligible for Medicaid and are concerned that your home will disqualify you, ask your estate planning or Medicaid planning attorney about an irrevocable trust. With this trust, if a husband and wife both own a home, the husband can transfer his portion to his wife, and his Medicaid eligibility won’t include the home.

There must be a five-year gap between the creation of the trust and the application for Medicaid. If there isn’t, those funds will be counted as part of existing assets when determining Medicaid eligibility. Therefore, you can’t start an irrevocable trust right before you apply for Medicaid, if you want to receive those benefits.

One negative of an irrevocable trust is that the founder of the trust relinquishes any rights he has to the home. However, the beneficiary of the trust can’t sell the home, unless he or she is also named as a trustee. Once an irrevocable trust has been created, the trustee can’t take back control of the trust.

Remember that a life estate and an irrevocable trust aren’t always mutually exclusive. It’s possible to place an asset (like a home) in an irrevocable trust and keep a life estate. In that case, you’re irrevocably transferring ownership of your house to the trust. However, you still keep control. In this case, you are permitted to sell the home, remodel, or rent out a room, but the house itself—or the sales proceeds from it—would remain in the irrevocable trust.

In this situation, a parent would also not risk giving their children part of the tax liability that is associated with owning a home. The parent would keep more personal control over the house and wouldn’t need their child’s permission to sell the home. This may be the best option because it would still allow the parents to apply for Medicaid and not have the property count in their assets, but he or she would remain the sole decision-maker for the house.

Both have their pros and cons, but a combination of the two can often be the best answer. Make no moves either way, without the advice of an experienced elder law attorney.

Reference: Investopedia (June 16, 2019) “Life Estate vs. Irrevocable Trust: What’s the Difference?”

 

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Are You Considering the Impact of Your Estate Plan on your Heirs?
Family together in the kitchen

Are You Considering the Impact of Your Estate Plan on your Heirs?

When thinking about an estate plan, the top priority is usually devising strategies on how to transfer assets to heirs. It’s rare that a person really considers the consequences for the beneficiaries.

Kiplinger’s recent article asks, “Are You Forcing Unintended Consequences on Your Heirs?” An estate plan should bring about a positive outcome. However, you may be surprised to learn how easy it is to impose an unintended negative outcome on your family.

Some retirees have an estate plan that says, in essence, “What I’ve put together is enough. It’s my children’s problem to address it, when they get it. Regardless, they’ll be better off, so I’m not gonna worry.” Although that may be true, a better approach is to create intentional outcomes that advance the mental and emotional value of their wealth. This requires you to do something that can be uncomfortable—that’s talking about your wealth with your family. Many issues arise from a lack of communication and a lack of understanding of your heirs’ financial situations. Here are some examples of how you may be forcing unintended consequences on your family, when your assets transition with your estate.

Passing Unequal IRA Tax Liability to Your Heirs. When you pass on assets in a traditional IRA, you also pass the taxes and Required Minimum Distributions (RMDs) of that account. Unless your children all pay tax at the exact same rate because they are all in roughly the same income tax bracket, each of their inheritances will have a different tax liability. As a result, the amount they actually receive, after-tax, will also be different. Be sure to look into the effects of an equal split of the assets in your estate plan.

Inheriting a Vacation Home. If you own a vacation home, it’s likely you hope that your children will be able to enjoy it as a part of your legacy. Parents may directly pass a property to their children or set up a Qualified Personal Residence Trust (QPRT). However, talk to your children to see if they share the same intent for their future. A vacation home can become a burden for your children, if none of them or only one wants it.

Selling Illiquid Asset at Bargain Prices. These are assets that are hard to value and hard to sell, like real estate, collectibles and other alternative investments. If they decide to sell the illiquid asset, know that it may be at an auction or at a fire sale price, leaving your heirs with less money. Instead, think about selling these assets, while you can make sure that the fair market value is attained.

Life Insurance Proceeds Set in a Trust. You may have a life insurance policy in an Irrevocable Life Insurance Trust (ILIT), which was set up to retain the proceeds of the policy out of your estate to avoid estate taxes. Many people did this long ago, when the federal estate tax exemption was $600,000 and have failed to look over the terms of the trust since then. However, now in 2019, the federal exemption is $11.4 million per person. For many, this means the need to own the insurance policy in the trust may be unnecessary.

Protecting Wealth in Trusts That Don’t Fit with Plans. Many people use revocable trusts as a method to protect their heirs from probate. However, when you die, the trust becomes irrevocable, and the distribution of the funds is dependent upon the terms of the trust, which may create unnecessary restrictions on accessing the funds. Therefore, it’s crucial to make certain that your need for the trust is supported by its terms to address your family’s circumstances.

An effective estate plan transfers your assets to your heirs, and it also aligns the personal, emotional, and financial situations of all those involved. Remember to think about what the heirs receive.

When meeting with a qualified estate planning attorney, be certain to talk about any restrictions that you’re intentionally or unintentionally imparting on your heirs.

Reference: Kiplinger (June 13, 2019) “Are You Forcing Unintended Consequences on You

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Medical Health Care Directive -Preparing for the Legal and Medical Aspects of End-of-Life

Medical health care directive – Planning for the end-of-life transition is something most people still avoid as a difficult topic. It’s true: for many people this topic is just too sad and scary to talk about, says Flagstaff Business News in the article “Easing the End-of-Life Transition with Advance Care Planning.”

However, planning for one’s death is a kindness to loved ones, family members, friends or even neighbors when others are left to make decisions about medical care, when an individual can’t do it for themselves.

In the estate planning field, this is called advance care planning. It involves learning about the decisions that often need to be made, considering the options and decisions ahead of time, and memorializing those decisions with the correct and enforceable legal documents such as a medical health care directive. This gives a person the ability to think about what they want in the way of treatment or care, and what they don’t want.

It makes things much easier for the survivors, who otherwise have to guess what was on their loved one’s mind or what they would have wanted.

Here are the medical decisions that most frequently need to be made with a medical health care directive:

CPR, or Cardiopulmonary Resuscitation. This is to get the heart to start beating again, when it has stopped and can range from the use of hands, a defibrillator or chemical means.

Ventilator or Assisted Breathing. This is the use of a machine, connected to a breathing tube that is inserted through the mouth or lungs and down the throat. It is not comfortable, and the patient cannot speak with the tube in their throat.

Artificial Nutrition. This is the delivery of nutrition through an IV (intravenous) or a feeding tube.

Comfort Care. Doing anything to make an individual comfortable at the end of their life. It can include everything from medication to emotional and spiritual counseling. The goal is to provide a person with a dignified end of life, while relieving as much suffering as possible.

Once decisions have been made about these medical treatments, it’s time to get them down on paper.

You’ll need a Living Will. This is a written document expressing your wishes for end-of-life care. If you cannot speak on your own behalf, this is the document doctors will use to guide your care.

Durable Power of Attorney. This is a legal document used to name another person to make health care decisions on your behalf.

In addition, you should have your estate planning attorney prepare a Last Will and Testament, so your property is distributed according to your wishes. An estate planning attorney can help make sure all the details are addressed.

These are not fun topics but thinking about what you would like to have occur and documenting with a medical health care directive your wishes provides direction for your loved ones, who would otherwise be guessing at what you would have wanted.

Reference: Flagstaff Business News (Aug. 2, 2019) “Easing the End-of-Life Transition with Advance Care Planning”

 

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Blended Family? Second Time Down the Aisle? Make Sure Estate Plan Is Ready

It’s always a good idea to review your estate plan, especially when a major life event, like a second marriage, is taking place and you now have a blended family. The use of a pre-nuptial agreements gives prospective spouses the opportunity to discuss one another’s rights of inheritance, and clarify a great many issues, says nwi.com in the article “Estate Planning: Planning for second marriages.”

There’s a second opportunity to sign an agreement detailing inheritance rights after the wedding takes place, called a “post-nuptial agreement.” The problem is that once the wedding has occurred and you are both legally married, you might get stuck with some surprises and, well, you’re married. For most people, it’s better to set things out before the wedding, rather than after.

There also may have been dissolution decrees in one or both of the couple’s prior divorces that have requirements which must be satisfied. A spouse may be required to maintain life insurance with the ex-spouse as a beneficiary. This can have an impact on the couple’s estate plan. It is recommended thay you have everything discussed up front in the pre-nup.

The rest of the steps are those that should be followed for any estate review.

Make sure that the last will and testament reflects your new spouse. If there are any mentions of the prior spouse, you probably want to remove them.

Verify how all of the assets are owned. Will they continue to be owned by just one spouse, or converted to jointly owned? Does your estate plan have a trust, and if so, are assets owned by the trust? Does there need to be a change made to your trustees?

Many people don’t remember how their bank accounts are titled. Fewer still can tell you who their beneficiaries are on their retirement accounts, life insurance policies and bank accounts. Remember: the beneficiary designations are going to determine who receives these assets, regardless of any language in your last will and testament. Once you die, there is no way to contest that distribution. Review your accounts and make sure that the beneficiaries are up to date.

Part of your pre-nup and estate plan review will be to discuss inheritance rights for any children in the blended family. Do you want to leave assets only for your children, or do you want to leave assets for all the children? It’s not an easy conversation to have, especially at the start of the blending process.

Remember also that blended family dynamics can change over the years. When you review your estate plan next—in three to four years—you’ll have the opportunity to make changes that hopefully will reflect deepening bonds between all of the family members. Your estate planning attorney will help create and revise estate plans, as your life circumstances evolve.

Reference: nwi.com (May 5, 2019) “Estate Planning: Planning for second marriages”

 

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Medicaid Application – Why an Attorney Should Help You

For Medicaid Applications, Elder law attorneys can be very helpful when planning for Medicaid coverage, and they can save money in the long run, ensuring that you (or a loved one) get the best care. Instead of waiting to see how wrong the process can get, says The Middletown Press, it’s best to “Use a lawyer for Medicaid planning” right from the start. Here’s why.

Conflict of interests. When a nursing home refers a family to people for preparing the Medicaid application, very often the person has dual loyalties: to the nursing home who refers them the work, and to the family who will pay them a fee for help with applying for benefits. Whose interests comes first?

Everyone wants the Medicaid application to be successful, but let’s be realistic. It’s in the nursing home’s best interest that the resident pays privately for as long as possible, before going on Medicaid. It’s in the resident or family member’s best interest to protect the family’s assets for care for the resident’s spouse or family.

An attorney has a duty of loyalty only to her client. She also has an ethical and professional responsibility to put her client’s needs ahead of her own.

Saving money is possible. Nursing homes in some areas cost as much as $15,000 a month. While every market and every law practice is different, it would be unusual for legal fees to cost more than a month in the facility. With an experienced attorney’s help, you might save more than her fee in long-term care and probate cost. Most attorneys will consult with new clients at little or no cost to determine what they need and what they want to achieve before paying a larger fee.

The benefit of experience. It’s all well and good to read through pages of online information, but nothing beats the years of experience that an attorney who practices in this area can bring to the table. Any professional in any field develops knowledge of the ins and outs of an area and applying for Medicaid is no different. Without experience, it’s hard to know how it all works.

Peace of mind from a reliable, reputable source. Today we hear a lot about “FOMO,” or fear of missing out. Consulting with an experienced attorney about a Medicaid application will help you avoid years of wondering, if there was more you could have done to help yourself or your loved one.

There are multiple opportunities for nursing home residents to preserve assets for themselves and spouses, children and grandchildren, particularly when a family member has special needs. However, here’s a key fact: if you wait for the last minute, there will be far less options than if you begin planning long before there’s a need to fill out a Medicaid Application.

Reference: The Middletown Press (July 29, 2019) “Use a lawyer for Medicaid planning”

 

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