Category Archives: Elder Law

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.

College Bound? Two Documents Every College Student Should Sign

Gene Richards_8x10@300Most parents know — in theory, at least — that their children are no longer children when they turn 18. They are considered legal adults with legal responsibilities. This is an abrupt transfer of power and the full significance may not be apparent until something happens that drives that reality home.

The start of the school year is right around the corner, which means many recent high school graduates will soon be heading off to college. Before parents drop off their children on campus, I strongly recommend having them obtain a medical durable power of attorney and a general durable power of attorney.

Medical Durable Power of Attorney
The following is a difficult sentence for many parents to digest: Just because you are the parent, and just because you provide the financial support, does not mean you have any legal rights for your son or daughter after they turn 18 years old- even if you are paying their college tuition, and even if they are on your health insurance plan, and even if you claim them as a dependent on your tax returns. If your son or daughter gets into a car accident the day after they turn 18 and suffers severe brain damage, without a medical durable power of attorney, you have no rights to sign them up for benefits and you could even be kept in the dark on their medical condition.

I recommend having college-aged young adults, along with young adults who are still dependents, sign a medical durable power of attorney. This document allows a parent to be designated as a patient advocate to make future medical decisions in the event that their son or daughter is unable to make medical decisions on their own.

General Durable Power of Attorney
Another legal document that I recommend having college-aged young adults obtain is a general durable power of attorney. This document goes above and beyond medical decisions and gives a parent – or another trusted adult – the authority to make financial decisions, business decisions, and conduct transactions on behalf of their son or daughter in the event some sort of accident leaves them unable to handle their own affairs. It could be dealing with the bank or even with the university they attend. Having a general durable power of attorney allows a trusted adult to step in without getting judges, courts, and lawyers involved.

We’ve Streamlined the Process for Busy Families
Having college-aged children myself, I know preparing for college life is very hectic for both parents and their children, therefore I have implemented a streamlined process for young adults to quickly obtain these important legal documents before they head off to school. After a brief phone consultation, the parent and their child will come into our Livonia office where I will explain the legal significance of both documents in clear and straightforward language to ensure all family members understand the legal rights a parent has – and does not have – once these documents are signed. Both the young adult and the parent will then be asked to sign the documents. While I will spend as much time as needed, most appointments take less than 30 minutes. There is still time to get this done before school starts, even for those with nearly full calendars.

Special Pricing: Two Offers
Offer #1: If you have a child heading off to college or an adult child who is still a dependent, I will prepare a complimentary medical durable power of attorney or a general durable power of attorney for every client that schedules an appointment to have their current estate plan reviewed. Keep in mind, if your child was a minor when you first created your estate plan and he/she is now over 18 years old, it is wise to review and update your estate plan.

Offer #2: If you are not in need of an estate plan review at this time, but have a child heading off to college or a young adult who is still a dependent, I am offering special “back to school” pricing to prepare these documents. The cost to obtain a medical durable power of attorney is $75/per child. The cost for a durable power of attorney is $100/per child. The cost to get both documents at the same time is $150/per child.

Taking the simple steps to obtain these important legal documents before your child heads off to college will provide parents with an overall peace of mind and, should an accident occur, eliminate the stress and confusion when your son or daughter needs you the most.

The two special offers are only valid through September 31, 2018. Please contact Norman (Gene) Richards or his legal assistant, Rita Turner, to schedule an appointment. They may be reached at (734) 261-2400 or by email at nrichards@cmda-law.com or rturner@cmda-law.com. Gene is available to meet throughout the day and on select evenings.

Norman E. Richards (Gene) is a partner in our Livonia office 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.

Gene Richards Featured on “The Lawyers” Radio Program

Radio Show PhotoCurt Benson, an attorney in our Grand Rapids office, hosts a popular syndicated radio program, The Lawyers, which airs on Newsradio WOOD 1300 and 106.9 FM.  On the program, Mr. Benson interviews professors, judges, lawyers and lawmakers on legal issues in the news. He recently sat down with Gene Richards, a partner in our Livonia office, to discuss a variety of estate planning and elder law issues, legal updates, and cost-effective solutions.  Please click here to listen to the informative radio program.

Mr. Richards helps clients safely navigate life’s transitions through the skillful, practical, and compassionate application of comprehensive elder law and estate planning services.  He guides senior clients in planning for their future care needs, including maximizing financial resources to pay for the cost of long-term care. He takes the time to understand his clients’ needs and goals and designs practical, customized solutions for them.

Gene Richards may be reached at (734) 261-2400 or nrichards@cmda-law.com.

The Elderly are at Risk – Even in the Courts

Gene Richards_8x10@300It’s a travesty when the court process designed to protect seniors is manipulated by unscrupulous professionals for personal profit. Without immediate, aggressive advocacy a person can be stripped of all legal rights in less than 30 minutes at a court hearing. Admittedly, it is appropriate for a judge to appoint a conservator or guardian if an individual cannot make decisions or needs to be protected, but it should only happen when absolutely necessary. Please click on the link below to read an article regarding an extreme case of systemic abuse of the probate process.

The Elderly are at Risk – Even in the Courts

Be an effective advocate for your spouse or parent by:

  • Evaluating other options before petitioning to appoint a guardian or conservator
  • Hiring a lawyer immediately
  • Speaking to the court appointed investigator
  • Attending all hearings
  • Working out differences with family members – before going to court
  • Encouraging your parent(s) to designate in advance who they want as guardian or conservator (In Michigan, this can be done in a durable power of attorney.)

The elder law and probate attorneys at Cummings, McClorey, Davis & Acho, P.L.C. are available to counsel on the pros and cons of pursuing (or defending against) appointment of a guardian or conservator in the Michigan probate courts.  We also go to court on behalf our clients and advocate aggressively for the right results.  Contact our office for a consultation about your situation at (734) 261-2400 or nrichards@cmda-law.com.

CAREGIVER EXPO – A Must For Caregivers!

Caregivers – Don’t miss out!  Take advantage of the  “Solutions for Family Caregivers Expo” tomorrow (Saturday, October 14) from 9 to 2 at the Suburban Collection Showplace located in Novi, MI.  This is a once-a-year event, and only every other year in Oakland county.

I will be there alongside Jim Schuster, Elder Law Attorney, for the afternoon session called “Elder Law Mini-Course for Caregivers.” Drop by our booth. I’d love to see you and personally give you resource materials that will help you be a more informed and effective caregiver.

At no charge, you have access to many experts in seminars on topics such as: maximizing Medicare benefits, caregiver health, hospice, protecting assets, dealing with dementia, grief recovery, getting quality medical care, and elder law.  You’ll also have access to an exhibit hall stuffed with businesses providing support services to caregivers.  Thousands will attend this event.

Here’s the link for more information about the breakout sessions, times and directions: Caregiver Expo

 

I hope to see you tomorrow!

Property and Health Care Decision-Making Agents for MS Client

Video 4 ImageWe want to share a series of videos (5 total) that demonstrate how Elder Law attorneys can help those with MS.  The forth video focuses on Property and Health Care Decision-Making Agents.  When an individual is diagnosed with MS, preparing for medical and financial decision-making by other people is a necessity. The video outlines what legal documents must be in place to ensure wishes regarding financial management and healthcare will be honored.

These videos were produced through the collaborative efforts of the National Academy of Elder Law Attorneys (NAELA), the National Multiple Sclerosis Society, and Stetson University College of Law.  The videos will be posted on successive days.  Or you can go directly here to watch them all at once.

The elder law team at CMDA is experienced in helping vulnerable clients of every age.  We are available to assist younger individuals dealing with a disability or debilitating illness such as MS.  We help our clients maintain quality of life and preserving independence for as long as possible. We hope you find value from these videos.  We also welcome your feedback.  Contact Gene at CMDA’s Livonia office by calling (734) 261-2400 or by email at nrichards@cmda-law.com.

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