Tag Archives: Norman Richards

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  • rely on outdated wills, trusts, and powers of attorney drafted many years earlier,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.

Attorney Presents on Stepping into Retirement

img_4147.jpgOn January 16, 2019 Gene Richards, a partner in our Livonia office, gave a presentation on Stepping into Retirement- A Practical Action Plan to over 30 members of the Association of Legal Administrators (ALA) Detroit Chapter. The interactive workshop gave an overview of decisions and actions people should take before, during and after you retire to protect and cultivate your retirement accounts.

If your business or social group is interested in having Mr. Richards present a complimentary seminar on Stepping into Retirement, please contact us 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.

Why is it not a good idea for adult children to put their names on their parents’ bank accounts?

It is fairly common for an aging parent to add a child’s name (sometimes more than one child) as a joint owner on the parent’s bank accounts.  The arrangement is usually viewed as a simple and inexpensive solution to the following concerns:

  • Someone needs to be able to pay bills when the parent is ill or hospitalized;
  • Funerals are expensive and money will be needed immediately;
  • The account will otherwise go to probate upon the parent’s death;
  • Probate is expensive and time consuming; and
  • Estate planning involves costly attorneys and fancy legal documents.

Many people are not aware of the hidden problems and risks that come with this arrangement.  What seems like a practical and inexpensive solution may actually create financial complications and ignite family conflicts.   Here are some reasons NOT to add a child’s name to a bank account:

  1. Loss of control – Adding a joint owner means the parent loses sole control of the account. Some parents are shocked to discover they are unable to remove the child’s name from the account without the child’s consent. This is a problem if the relationship sours or the child uses the money in a way the parent doesn’t like.
  2. Invitation to child’s creditors – Adding a child to an account gives the child ownership, not just access. Because the child has ownership, anyone to whom the child owes money (IRS, divorcing spouses, judgement creditors, and more) may be able to claim the funds in the account.
  3. No backup plan – If the joint owner child is ill or dies before the parent, there is no one else authorized to access the account. And adding more names to the account is not a wise decision for all the other reasons discussed.
  4. Accidental disinheritance – The trusted child may be expected to share the money with other family members according to the parent’s wishes after the parent’s death. If the parent’s wishes are not expressed in a will, then the child may claim the account and not follow those instructions.  Also, if the child dies shortly after the parent, then the account will pass to the child, become part of the child’s personal estate, and then be distributed to the child’s own family.
  5. Ignites family feuds – Other children and family members usually look suspiciously at the child who is joint on an account with the parent. There may be suspicions the child used the money personally, moved money to other accounts, or did not accurately report how much was in the account.  This may lead to fights in court or broken family relationships.

Fortunately, there are alternatives to joint ownership.  Many of the aging parent’s concerns can be solved with carefully designed powers of attorney (POAs).  These allow a trusted child to access the account without the risks that come with joint ownership.  Also, POAs identify alternates to replace the child and may require accountability and restrict what the child can do with the money.  Transfer on death designations can be used to make sure an account is distributed appropriately to other family members.   A revocable trust may also be a useful tool. An estate planning attorney should be consulted about which of these tools are best for the aging parent’s situation.  Most estate planners are reasonably priced and may well save the family from expensive legal fights in the future.

 

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.

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