When a senior is no longer able to adequately care for themselves, there are two main options. One is to live in an assisted care facility such as a nursing home, and the other is to hire an in-home caregiver for private care. The latter option is ideal for seniors who prefer the comfort of their own home and some level of independence. Here are a few guidelines for hiring an in-home caregiver.

Determining a Senior’s Needs

There can be a considerable difference in a person’s specific needs, which will dictate the type of service that’s necessary. Some seniors will be able to dress, bathe and cook for themselves, while others will require assistance. There may also be medical needs that require a caregiver with an advanced skill set. Other times, a senior might primarily seek companionship and someone to run errands. That’s why it’s smart to write down a list of needs prior to contacting potential caregivers.

Agency vs. Direct Hire

Generally speaking, it’s best to go with an agency because they must meet certain requirements and tend to be safer than hiring directly. When looking at agencies, they should be evaluated on the quality and knowledge of their staff. Each caregiver should be run through a background check and be capable of meeting all of a senior’s daily needs.

For states that require licensure, a caregiver should be fully licensed. Being a member of the American Association for Homecare is ideal because it means that an agency is recognized for its professionalism. If a senior requires extensive care, it’s smart to have one or more backups available ahead of time to avoid any complications in the future.

Cost of Care

According to MetLife, “the average hourly cost of a home health aide worker is $19 per hour, with some states being as high as $30 per hour and as low as $9.” The exact cost will depend on the state and the level of care needed. It’s important to compare three or more agencies to find affordable pricing while still ensuring great care. Be on the lookout for additional fees like deposits and extra payments for holidays and weekends.

Monitoring the Caregiver

Upon hiring an individual, it’s a good idea to monitor that person to make sure they are fulfilling their duties and the senior is properly cared for. This can begin with asking the senior for input and determining their overall level of happiness. Dropping by unannounced from time to time while the caregiver is on the job is also effective for gauging how well they are performing their duties.

Knowing what to expect and what constitutes quality in-home care should result in the right hire. That way a senior’s needs can be met and a caregiver can be around for the long haul.

Unless you have a complete, valid and executed “Guardianship Appointment” then a court will decide who will raise and care for your children.  All of the below is eliminated and unless the appointed guardians are incapacitated, your wishes will be followed.

A minor is a person under the age of eighteen years.  A guardian of a minor is an individual appointed by the court who has legal custody of the person or property or both of an individual under the age of eighteen. 

The Probate and Family Court, the Juvenile Court, and the District Court have the power to appoint guardians for minors. 

The Court may nominate the guardian if a minor is under the age of fourteen.  A minor aged fourteen or older may, before a justice of the peace, notary public, or municipal clerk, nominate the guardian on the petition.  The Court, after notice to or assent of the parents, will conduct a hearing and appoint a guardian. 

The guardian must prepare and submit to the Court an annual inventory and accounting of the minor’s assets.

Grandparents, aunts, uncles and friends can file for guardianship of a minor.   The Petition must be filed in the County where the child is living.   

Sometimes it is necessary to file for Emergency Temporary Guardianship when there is an emergency (the parents are incapacitated).  Once documents are filed with the Court, a hearing is held.  The Court may provide a Temporary Order for Guardianship.  This Temporary Order is only good for 30, 60 or 90 days.  With a Temporary Order of Guardianship, the Court will provide instructions on what the guardian MUST do before getting Permanent Guardianship.  All parties need to be notified that a Temporary Guardianship has been named.

If there is not an emergency (death of the parents), after all required Court documents are filed, a notice needs to be given to other parties.  The other parties are generally the biological relatives of the child (ren), or any other party that has an interest in the child (ren).   What is the problem with this?  Anyone connected to the child(ren) can contest and seek custody of the child(ren).

Remember, all of this is a cost that your estate will pay. 

IN ORDER TO AVOID THESE ISSUES AND MAKE SURE THAT YOUR CHILD(REN) ARE CARED FOR BY THE PERSON(S) THAT YOU WANT, CONTACT ME TO DISCUSS YOUR ESTATE PLANNING.

In 1969, Elisabeth Kübler-Ross published her groundbreaking book On Death and Dying which introduced what became known as the five stages of grief: denial, anger, bargaining, depression, and acceptance. These stages were originally based on Kübler-Ross’ years of working with dying patients but came to be applied to people who are grieving the death of a loved one or experiencing a significant loss (such as divorce, chronic illness, losing a job, etc.). Kübler-Ross’ five stages are controversial within the grief support community due to the ways in which popular culture has used them to try to explain grief and prescribe how the bereaved should behave as if the stages were a “how to” list.  Those who work with the bereaved know that grief is not a linear process, and each individual’s grief journey is unique.  Kübler-Ross herself never meant these stages to be used as a rigid framework to be applied to everyone who mourns. In On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (Scribner, 2005), the last book she wrote before her death in 2004, she said of the five stages, “They were never meant to help tuck messy emotions into neat packages. They are responses to loss that many people have, but there is not a typical response to loss, as there is no typical loss. Our grief is as individual as our lives.”

No two people grieve in the exact same way. Even within a family each person will grieve differently based on the relationship they had with the person who died. Current grief theory reinforces the personal nature of each individual’s grief journey and focuses on what might help the bereaved create meaning from the experience of the death and come to an understanding of what the death means in terms of their personal beliefs and their identity. The bereaved often feel alone in their grief, that others don’t understand or are judging them for somehow not grieving “right.” Grief is not something that someone goes through with a definitive end point.  The goal of grief work has moved away from getting over the death, to instead finding a way to incorporate the memory of the person who died into your life in such a way that over time their death feels less painful.

Children often talk about aspirations they have for themselves based on their relationship with their deceased family member, “I want to do well in football because my dad used to be my coach,” or “I want to be as kind as my sister was.” The people we love are a part of our lives forever and even after their deaths, our memories of them and their influence upon us affects our beliefs, behavior and goals.

Bob

I often consider what clients care about most. First, clients are often looking for the best way to gift to their children or grandchildren.

Clients give to their children and grandchildren in many different ways. Parents and grandparents give to their children and grandchildren in countless ways, from the moment of birth, they are giving of their love, affection, and nurturing.

Parents and grandparents often want to give for education. A 529 plan is designed for this purpose. By gifting to such a plan, the donor can remove the assets from their own estate and yet retain control over the assets. This may be estate planning’s “Holy Grail.” Not only may a gift to a 529 plan qualify for an annual exclusion, with an election, it may qualify for the use of up to 5 years of exclusion. That means that a donor may make a contribution of $70,000 completely excluded from the gift tax.

In addition to gifting to a 529 plan, donors may give an unlimited amount for tuition if paid directly to an educational institution. A similar exclusion applies for the payment of medical expenses directly to a medical provider. These exclusions are provided in the often-overlooked Section 529(e) of the Internal Revenue Code.

Of course, direct gifts to either a child or grandchild will qualify for the $14,000 annual gift tax exclusion (and GST tax annual exclusion).

However, often clients do not want to gift directly to their child or grandchild, but want to keep the assets in trust. An irrevocable trust with limited withdrawal powers can be a great way to obtain the annual gift tax exclusion even though the gift is in trust.

Whether gifting outright, in trust, or via a 529 plan, clients often want to gift for the children’s and grandchildren’s benefit as part of the legacy they leave.

Food for thought,

Bob

The International Cemetery, Cremation and Funeral Association recently held their summer university. I attended the ICCFA University College of 21^st Century Funeral Services and came away with a new perspective on how funerals are changing.

Dr. Alan Wolfelt, a psychologist trained in life transitions who spoke there, said, “More and more people in North America are asking ‘Why have a funeral?'”

People are saying, “When I die, just get rid of me no muss, no fuss. Maybe have a party, but I sure don’t want a funeral.” “Dad said he didn’t want us to go to any trouble, so we are just going to do what he said.” “We just thought it would be easier, faster, and cheaper.”

Wolfelt said that efficiency should not be confused with effectiveness. He said, “We’ve gone from funerals to memorial services to celebrations to parties. In the process, we have lost the connection to grief and emotion.”

People are losing sight of the value of holding some kind of ritual service, a safe place to grieve and mourn. Very often, the people who don’t recognize a death with a funeral or memorial service are in a psychologist’s office six months later with problems related to unexpressed emotions.

We in the U.S. have become an increasingly “mourning-avoidant” culture, where people tend to want to avoid sadness. At a meaningful funeral, people laugh one moment and cry the next as they share stories that cause laughter as well as tears. This experience of “paradoxical emotions” results in what Wolfelt calls the “sweet spot of emotional experience.”

Traditional clergy doing cookie-cutter funerals with little relevance to the deceased or their family have also contributed to the decline of funerals. Wolfelt and Doug Manning, founder of the In-Sight Institute (which certifies nondenominational “Funeral Celebrants”), both noted the declining number of Americans who attend church and the growing number of interfaith families.

The 2010 American Religious Identification Survey estimated that approximately 15% of the American population do not attend religious services or consider themselves church affiliated. If you grouped all the identified “nones” into a state, it would be the second largest state in the union, right behind California and before Texas.

In our highly mobile society with fewer ties to church or a specific religion, there is a growing corps of Funeral Celebrants who can offer families a personalized and individualized funeral or memorial service experience.

A Funeral Celebrant is trained in the specific area of conducting funerals and memorial services for families who are not affiliated with a religion or theology. Celebrants can assist a family with no clergyperson, as well as those uncomfortable with traditional religious funerals, on whom to call when there’s a death.

The use of Certified Celebrants originated in New Zealand and Australia, where 80% of the population chooses cremation and many people do not attend a church. Civil Celebrants, who are licensed by the government, perform over 50% of the funerals and weddings in those countries.

Doug Manning brought the idea of Certified Funeral Celebrants to North America in 1999 when he founded the In-Sight Institute. In-Sight has certified more than 1,600 Celebrants across the U.S. and internationally.

Another 36 Certified Celebrants graduated at the end of this ICCFA University. I’m proud to be one of them.

A correspondent in a recent Dear Abby column posed a great end-of-life preparation question. He or she was a single person with grown children who wrote, “I want to make sure I am not a burden to them even after death. I have a will and no bills. What else do I need to do?”

Dear Abby replied with questions about whether he/she had an advance directive for health care, at least one health care advocate named to carry out those wishes, a cemetery plot selected and paid for and money set aside for a funeral or memorial. If those items were taken care of, the person just needed to make the children aware of it.

That sounds simple enough – maybe too simple. Estate planning attorneys know many of their clients need trusts, beyond a basic will. Dear Abby could have gone further with her advice to reduce being a burden. Here are five tips from The Doyenne of Death® to round out Abby’s advice:

Tip One: Write your own obituary. It’s your life story, tell it your way. Your kids may not know all the details that you’d want known. They can edit it down for the newspaper to minimize print obituary costs or run it free online in all its full glory. Colorful, humorous obituaries can make you famous when they go viral. Plus, you’ll take that burden off the kids’ shoulders.

Tip Two: Decide what kind of disposition method you want, and discuss it. Dear Abby assumed the person would be buried, not cremated. A national average of 42% of Americans are choosing cremation, with rates of 60-78% of populations in Western states opting for burning over burial. You can also donate your body to science, but the paperwork must be filled out while you’re alive and in sound mental shape.

Tip Three: Put your funeral plans and information on file with a reputable funeral home, and let your kids know you’ve pre-planned. If you can afford to pre-pay with a guaranteed funeral trust or insurance policy, let them know you’ve done that and where to find the paperwork.

Tip Four: Don’t assume the kids will be levelheaded about splitting up your personal possessions. If they get along reasonably well, have a sit-down meeting at your home. Story telling about the history of some items can start the conversation. Let siblings discuss which of your items they want. Then put labels on those items to help head off disputes after you’re gone. Or, make an itemized list of who gets what pieces of personal property and attach it to your will.

Tip Five: What about being a burden before death? Very few of us go from being healthy to dead quickly. The idea of going to sleep and not waking up is appealing but unlikely. What insurance do you have in place to help you avoid being a burden if you become a frail elderly or demented person? A health care crisis without insurance is a fast track to bankruptcy. Medicare only covers so much.

It’s also a good idea to make a master file of information on accounts and benefits that you have – everything from attorneys, banks and brokerages to passwords, utilities and veterans information. If you have a will and no bills, these additional five tips will truly help avoid being a burden on your kids.

Bob

Family harmony is important. “The family is a haven in a heartless world.” Christopher Lasch. But, unfortunately, when family disputes arise, they can be deep rifts. “Family quarrels are bitter things. They don’t go by any rules. They’re not like aches or wounds; they’re more like splits in the skin that won’t heal because there’s not enough material.” F. Scott Fitzgerald.

One such deep rift involved an 85-year-old Austrian grandmother who had over $1 million (in Euros). She cut up her money in tiny pieces rather than having it go to her heirs. The story is here: http://www.foxnews.com/world/2015/11/05/grandmother-tries-to-spite-heirs-by-shredding-up-11-million-fortune-prosecutors/

If you want to disinherit some or all of their family, you don’t need to take out the scissors. You could simply say that they are leaving those family members nothing and say to whom the assets should go, like a charity or friends.

Often, when some or all of the family is disinherited, it makes sense to leave those people a reduced bequest and then include a “no contest” or “in terrorem clause”. Such a clause leaves the person nothing if they challenge the estate plan, which all of my Trusts include. By doing this, the people to be cut out have an incentive not to make trouble by contesting the plan. In order to be effective, the reduced bequest should be significant, so as to discourage them from losing it if they were to challenge the estate plan.

Perhaps the best way to make sure wishes are carried out is for the you to communicate those wishes during life so that heirs are not surprised after you are gone.

As estate planning attorneys know, parents usually leave their assets equally to their children. However, we also know, both personally and professionally, that sometimes an equal division is definitely not fair. Sometimes children have different needs and abilities. For example, one child might be a successful physician, while another might be an award winning teacher. Both professions are valuable and have merit. However, society values those contributions disproportionately.

Another situation warranting an unequal division of assets might be where one child worked for decades on the family farm, which represented the majority of the value of the assets.

A recent article in The Wall Street Journal examined various reasons and may be found at http://online.wsj.com/article/SB10001424053111903648204576554620047917688.html.

There are still more reasons parents might choose to treat their children unequally. For example, one child might have cared for the parents in their declining years. Another child might have special needs. Whatever the reason, the estate planning attorney’s job is to ensure that their clients’ wishes are carried out. It is important to remember that an unequal distribution might trigger a challenge to the estate plan.

There are various ways to discourage such a challenge. First, an in terrorem, or no contest clause may be included in the Will and/or Trust. With such a clause, a challenger will take nothing. This is an especially potent device when the would-be challengers are given something, even if a smaller share. Another way to encourage children to honor the parents’ wishes is by having the parents write a side letter as to their reasons for the unequal treatment. It is better to have this as a side letter so that it is more difficult for would-be challengers to use external evidence to show that those reasons do not exist and, therefore, the distribution should be equal after all.

Historically, states have had legal frameworks for dealing inheritance rights in the not uncommon situation where a baby is conceived during its father’s lifetime but born after his death. At common law, a baby born within 280 days after its father’s death was presumed to be the father’s child, and therefore entitled to inherit from the father’s estate. Of course, this rule was established during a time when it was only possible for conception to occur during the father’s lifetime. 

But what happens when conception occurs months or even years after the father has died? Each state has its own way of approaching this very modern issue, and the outcomes can be vastly different. 

In Florida, for example, the posthumously conceived children of parents who die intestate don’t have any inheritance rights. A child conceived after a decedent has passed away is ineligible to inherit from the decedent’s estate unless there’s a will specifically providing for that child. 

Louisiana takes a much different approach, providing that a child conceived after his or her father’s death has inheritance rights, if two conditions are met: 1) The father must give written authorization for the use of his sperm for the purpose of conceiving a child after his death, and 2) The child must be born within three years of the father’s death. 

The law often lags behind technology, and this is an area in which that gap is likely to exist for quite some time. The status of current legislation is unsettled at best, which presents an opportunity for attorneys, as counselors, to provide an invaluable service to our clients. Do you have provisions in your documents concerning posthumously-conceived children? How do you approach this issue in your practice? 

Estate planning is not only about having a plan in place to deal with what happens at your death, it is also about having a plan in place to deal with what happens if you become mentally incapacitated.  In this issue you will learn:  

• What happens without an incapacity plan.
• The essential documents for managing finances during incapacity.
• The essential documents for making health care decisions during incapacity.
• How to choose the right person for managing finances and making health care decisions during incapacity.
• The importance of keeping your incapacity plan up to date.

If you have any questions about incapacity planning or whether you need to make updates to your incapacity documents, please call our office now.
 
Court-Supervised Guardianship or Conservatorship:  How to Lose Time, Money, and Control During Incapacity Mental incapacity caused by an accident, injury, or illness means you will be incapable of making informed decisions about your finances and well-being.  Without a comprehensive incapacity plan in place, a judge can appoint someone to take control of your assets and make all personal and medical decisions for you through a court-supervised guardianship or conservatorship.  You and your loved ones could lose valuable time, money, and control until you either regain capacity or die. 
 
Planning Tip:  You may believe you are protected if you become mentally incapacitated because you hold your assets in joint names with your spouse, a child, or another family member.  While a joint account holder may be able to access your bank account to pay bills or access your brokerage account to manage investments, a joint owner of real estate will not be able to mortgage or sell the property without the consent of all other owners.  Aside from this, adding names to your accounts or real estate titles may be deemed a gift for gift tax purposes.  In addition, if a joint owner is sued, your property could be seized as part of a judgment entered against them.  Only a comprehensive incapacity plan will protect you and your assets from a court-supervised guardianship or conservatorship and the misdeeds of your joint owners.
 
The Essential Documents for Financial Management During Incapacity
There are two essential legal documents for managing finances that must be in place prior to becoming incapacitated:
 
1.      Financial Power of Attorney.  This legal document gives your agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document.   Financial Powers of Attorney come in two forms:  “Durable” and “Springing.”  A Durable Power of Attorney goes into effect as soon as it is signed, while a Springing Power of Attorney only goes into effect after you have been determined to be mentally incapacitated.
 
2.      Revocable Living Trust.  This legal document has three parties to it:  The person who creates the trust (the “Trustmaker” or “Grantor” or “Settlor” – they all mean the same thing); the person who manages the assets transferred into the trust (the “Trustee”); and the person who benefits from the assets transferred into the trust (the “Beneficiary”).  In the typical revocable living trust situation you will be the Trustmaker, the Trustee, and the Beneficiary of your own trust.  However, if you become incapacitated, then your Successor Trustee will step in and manage the trust assets for your benefit.
 
Planning Tip:  To be part of an effective incapacity plan, your Revocable Living Trust should contain provisions to determine your mental status through a private process (i.e., a disability panel, an attending physician, the opinion of two physicians, or some other method) instead of a public court process.  In addition, the trust agreement should contain specific instructions about how to take care of you if you are declared mentally incapacitated.  
 
The Three Must-Have Documents for Health Care Decision-Making
There are three essential legal documents for making health care decisions that must be in place prior to becoming incapacitated:
 
1.      Medical Power of Attorney.  This legal document, also called an Advance Directive or Medical or Health Care Proxy, gives your agent the authority to make health care decisions for you if you cannot do so because you have become incapacitated.
 
2.      Living Will.  This legal document gives your agent the authority to make life-sustaining or life-ending decisions if you become incapacitated.
 
3.      HIPAA Authorization.  Federal and state laws dictate who can receive medical information without the written consent of the patient.  This legal document gives your doctor or other health care provider the authority to disclose your medical information to the agent selected by you.
 
Planning Tip:  Your loved ones may be denied access to medical information during a crisis situation and end up in court fighting over what medical treatment you should, or should not, receive (like Terri Schiavo’s husband and parents did, for 15 years).  Without these three documents, a judge may also appoint a Guardian or Conservator of the Person to oversee your health care, thereby adding further expense and hassle to your court-supervised guardianship or conservatorship. You should have these three documents examined and updated frequently to ensure they accurately reflect their wishes.
 
How to Choose the Right Agents for Your Incapacity Plan
There are two very important decisions you must make when putting together your incapacity plan:

1. Who will be in charge of managing your finances during incapacity; and
2. Who will be in charge of making your medical decisions during incapacity.

Factors you should consider when deciding who to name as your financial agent and health care agent include:  

• Where does the agent live?  With modern technology, the distance between you and your agent should not matter.  Nonetheless, someone who lives close by may be a better choice than someone who lives in another state or country.
• How busy is the agent?  If your agent has a demanding job or travels frequently for work, then they may not have time to take care of your finances and medical needs.
• Does the agent have expertise in managing finances or the health care field?  An agent with work experience in finances or medicine may be a better choice than an agent without it.

Planning Tip:  Choosing the wrong person to serve as financial or health care agent will result in an ineffective incapacity plan.  You can pick different people to fill each role, that is, one person in charge of health care decisions and someone else in charge of financial matters. In order to create an effective plan, you need to carefully consider who to choose as your agent and then discuss your decision with that person to confirm that they will in fact be willing and able to serve. 
 
Is Your Incapacity Plan Up to Date?
As time passes by and your life changes, your incapacity plan will become stale and outdated.  It is important for you to have your incapacity plan reviewed every few years or after a major life event (such as a divorce or a death) to insure that the plan will work the way you intend it to work if it is ever needed.
 
Please contact my office to discuss your questions about incapacity planning and to schedule your plan review.