Category Archives: Elder Law

Join CMDA at Detroit Zoo Senior Day

senior-day-detroit-zoo

Senior Day at the Detroit Zoo takes place on September 4 

Tri-county seniors 62 and older and an adult companion receive FREE admission and parking to the Detroit Zoo on Wednesday, September 4 from 10 a.m. – 3 p.m.  Senior Day features live entertainment, tram tours, bingo, zookeeper talks and a senior resource area.

Look for the CMDA booth at the senior resource area and stop by for a free gift.  Gene Richards, a partner in our Livonia office, will be speaking on important estate planning and elder law issues at two different times throughout the day.  We hope to see you there!

Estate Planning for Retirement Years

Retirement is a highly-anticipated reward for years of hard work and child rearing. The “golden years” are viewed as a special season to pursue hobbies and enjoy life. Interestingly, while many people seek advice from a financial advisor to make sure they have enough money to retire, often they do not obtain a professionally prepared estate plan. Instead of working with an attorney, they will do one of the following:

  • rely on outdated wills, trusts, and powers of attorney drafted many years earlier,
  • use estate plan forms downloaded from the Internet, or
  • not worry about estate planning at all.

All of these approaches are a disaster waiting to happen. There is simply no substitute for an estate plan prepared by an attorney because the legal issues facing older adults are far too complex.

The Advantages of an Elder Law Attorney

Since retirement typically happens later in life, aging and health concerns become more of a priority. A person who relies on the three approaches above will face several disadvantages:

  • Old estate plan documents typically focus on the children and not the retirement years.”
  • Canned” estate plan forms and those purchased from estate planning services are not tailored to the person’s unique circumstance and are not adequately state specific.
  • Long-term care planning strategies are not authorized or adequately addressed.

On the other hand, an elder law attorney will provide experience and specialized training required to plan for and cope with the unique legal issues that accompany aging. Elder law attorneys prepare documents that are:

  • tailored to a client’s personal circumstances,
  • current and state specific, and
  • designed to maximize eligibility for public benefits such as Medicare, Medicaid, Veterans benefits, and Social Security.

Estate Plans Focused on Retirement

At first glance, every estate plan seems to use the same few documents: wills, trusts, financial powers of attorney, and medical powers of attorney. It is important to realize that a document labeled as a “will” or “power of attorney” is not necessarily appropriate for the situation. A power of attorney prepared for a 75 year old should be very different from one prepared for a 40 year old. The financial and health needs of an older person are much different than those of a younger person, and their legal documents need to address those differences. Below are some examples of how estate plan documents for senior adults are tailored specifically for that season of life.

Financial Powers of Attorney. This document authorizes someone to make financial decisions on your behalf. For retirees, this is the single most important document for managing long-term care needs. Carefully crafted powers should be included to deal with retirement accounts, beneficiary changes, transfers of assets, creation of legal documents, and extraordinary powers for long-term care planning.

Medical Powers of Attorney/Patient Advocate Designation. This document authorizes someone to make medical decisions on your behalf. Each state has very specific rules about what decision the health care proxy is permitted to make. It should be drafted for the state of residence. Careful thought should be given to the powers to refuse or withdraw life support, deal with mental health treatment, and who should have the power to make those decisions.

Wills. A last Will and Testament is a well-known document goes into effect after death and disposes of assets passing through probate court. Many people mistakenly believe all of their assets will be controlled by their will. The truth is that a will does not touch some of a person’s largest assets, like IRA’s, annuities, and life insurance. Moreover, wills are not useful during periods of incapacity.

Trusts. Trusts are much more beneficial than wills when it comes to dealing with aging issues and long-term care needs. A trust has several advantages over a will as it:

  • is useful during periods of incapacity,
  • is adaptable to a variety of strategies for Medicaid and VA eligibility,
  • maximizes assets for a healthy spouse under special conditions,
  • benefits disabled children, and
  • avoids probate court process if properly structured.

Summary

The importance of up-to-date estate plan documents that are personalized to the present season of life cannot be overstated. These documents allow trusted family members and advisors to take over management of assets during a period of incapacity. They facilitate access to public assistance programs when needed to help pay for long-term care costs. They minimize the need to involve a probate court judge for the appointment of a Guardian when a person is incapable of making care decisions or the appointment of a Conservator if the individual is not able to manage their finances.

Every person of retirement age should have an elder law attorney on their team of advisors. Senior adults who consult with an elder law attorney will have assurance that their legal documents have been carefully tailored to their unique situation. They will have peace of mind that they have planned for the financial and legal challenges unique to the retirement years.

Gene Richards_8x10@300Norman E. Richards (Gene) is a partner in the Livonia office of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on estate planning and elder law. He assists clients with the development of customized estate plans to address their specific needs, including family owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs. He may be reached at (734) 261-2400 or nrichards@cmda-law.com.

Five things to look for during holiday visits with aging loved ones

‘Tis the season for holiday celebrations and family gatherings.  These gatherings offer the opportunity to surreptitiously keep an eye out for noticeable changes in behavior and living conditions of aging loved ones.   It is important to be alert to changes because these may reveal health needs and care challenges that require intervention.  Here are five signs to look for:

  1. Partners covering for each other. Take note if one partner is constantly finishing the other’s sentences, correcting their recollection of events or hovering around them and helping with menial tasks.  Such behavior can be an effort to mask a partner’s declining mental or physical abilities.  If you suspect that to be the case, then subtly inquire how long it has been since they saw their doctor.  You might recommend that they see a doctor if they are having a hard time hearing, remembering or are appearing to be more anxious or depressed.
  2. Changes in appearance. Noticeable changes in weight (gain or loss), poor hygiene and disheveled dress can signal physical or mental issues.  These could include medical conditions and emotional problems such as depression.  Weight loss could be the result of difficulties performing the physical tasks of cooking and eating, such as handling kitchen tools and grocery shopping; reduced thinking ability that causes them to forget how to prepare or eat meals; or not taking medications properly.
  3. Difficulty getting around. Monitor your aging loved one’s mobility. Are they moving slower than last year’s holiday gathering? Do they appear to experience pain as they move? If you notice any changes, see if your loved one has discussed their symptoms with a doctor. Also determine if your aging loved one is still capable of navigating and driving for appointments and errands. Discuss alternative transportation options if necessary.
  4. Change in living conditions. Is your loved one carrying out everyday tasks to maintain their home? Check the refrigerator and make sure old food is not piling up or check to see if the garbage has been taken out. Ask your aging loved one if there is anything you can do to help make it easier for them to live in their home. Discuss the option of in-home care to help carry out some of these tasks.
  5. Money Mismanagement. Look for signs about how well your loved one is managing their finances.  Are there old, unopened bills lying round? Is the mail unsorted and piling up?  Are there collection notices?  Unpaid bills and collection notices can be early signs of memory problems. Also, be alert to any unusual purchases, recent home repairs, “You’re a winner!” lottery notices, and mail from foreign countries as senior citizens are often a target of scams and mail fraud.

As your family gathers for holiday celebrations, use the time together to make sure your aging loved ones are properly managing their lives. If you observe anything that causes you concern, follow-up on your observation after the celebrations are over. Consider comparing notes with other family members before starting a discussion with the aging loved one. An elder law attorney should be consulted if you think your concerns require intervention.

Gene Richards_8x10@300Norman E. Richards (Gene) is an attorney at the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on estate planning and elder law.  He assists clients with the development of customized estate plans to address their specific needs, including family owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs.  He may be reached at (734) 261-2400 or nrichards@cmda-law.com.

What can families do to avoid probate court?

It is important to acknowledge that a probate court serves an important role during life and after death.  During life, a probate court (i) protects the financial assets of an individual needing protection (through a conservator) and (ii) oversees the medical and personal care needs of an incapacitated individual (through a guardian).  After death, the probate court supervises the collection and application of assets that were titled in the deceased individual’s name alone (meaning assets with no surviving joint owner or no surviving beneficiary).   In both situations, the probate court may provide valuable oversight and accountability.  Sometimes the court is needed to resolve disagreements over wills, trusts and powers of attorney, as well as to decide family inheritance feuds.

Regardless of the important role and value of probate court, some individuals prefer to stay away from the probate process if at all possible.  There are several legal tools that may be used to side-step probate court:

Powers of attorney – Powers of attorney, both medical and financial, are the two most important documents required in order to stay out of probate court during life.  A general, durable power of attorney for finances (GDPOA) nominates a trusted individual (known as the “agent” or “attorney-in-fact”) to manage legal and financial affairs for the person signing the document (the “principal”).  Medical decisions can be delegated to a patient advocate.  This is done with a durable power of attorney for health care, known in Michigan as a patient advocate designation (PAD).  It is important to note that the principal does not give up any rights or freedom by signing a power of attorney document.  The agent and patient advocate are fiduciaries who must act in the principal’s best interest and at the principal’s direction.

With a GDPOA that includes the proper language, the agent will have authority to handle real estate, financial accounts, retirement accounts, business interests, mail, motor vehicles, debts and other legal matters.  If a GDPOA is in place and provides the authority needed, it will not be necessary to ask the probate court to appoint a conservator to manage financial and legal affairs in the event of the principal’s physical or mental incapacity.

With a PAD, the named patient advocate may be authorized to make medical decisions on behalf of an individual who cannot make those decisions himself or herself.  This document also serves as a durable power of attorney for health care and for care, custody and medical treatment decisions.  This document and the powers in it are sometimes called a “living will” or an “advance directive for health care.”  The patient advocate has the authority to make a broad range of medical decisions, including decisions regarding life support, as provided in this document and in accordance with the individual’s wishes.

Trusts – Trusts are usually thought of as a type of will.  Unlike a will, however, a revocable trust operates both during life and after death.  Also unlike a will, a trust does not require probate.  The trust maker (“settlor”) sets up a document that designates an individual (“trustee”) to manage assets titled in the trust for the settlor during the settlor’s lifetime (if incapacitated).  Upon the settlor’s death, the trustee follows the trust’s instructions on distributing the trust’s assets to named beneficiaries.  As the trustee has legal authority over trust assets, the probate court is not needed to manage and distribute the assets of the trust.  This makes a trust a key tool to avoid probate during life and after death.

Beneficiary designations – Beneficiary designations may be used to transfer bank, investment and retirement accounts to specific individuals and charities upon death.  In some instances, a special kind of deed may work to transfer real estate on death.  The benefit of beneficiary forms is avoidance of probate upon the death of the account holder or real estate owner.  On the other hand, there are several disadvantages with these forms as they frequently (i) are not updated after divorces or deaths of family members, (ii) are not reviewed regularly, (iii) are filled out incorrectly, and (iv) do not coordinate with other estate plan documents.

Joint ownership – Accounts and real estate with multiple joint owners will transfer probate-free to the surviving joint owners.  Joint ownership is usually appropriate for married couples, unless it is a second, or more, marriage.  Joint ownership is not usually advisable between parents and children or other persons as this may cause tax, legal and inheritance problems.

Some things to remember:

  • Powers of attorney (medical and financial), trusts, wills and beneficiary documents should be reviewed frequently and updated as needed;
  • Each tool described above has a limited purpose and should be coordinated with other tools; and
  • It is risky to utilize these tools without consulting an attorney, CPA or financial advisor.

Gene Richards_8x10@300Norman E. Richards (Gene) is an attorney at the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on estate planning and elder law.  He assists clients with the development of customized estate plans to address their specific needs, including family owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs.  He may be reached at (734) 261-2400 or nrichards@cmda-law.com.

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