Tag Archive for: estate planning

Everyone Needs a Comprehensive Power of Attorney

by Michael F. Callahan

The benefits of a highly detailed, comprehensive power of attorney are numerous. Unfortunately, many powers of attorney are more general in nature and can actually cause more problems than they solve, especially for our senior population. This post  highlights the benefits of a comprehensive, detailed power of attorney, including some of the provisions that should be included. A good starting point is to emphasize that the proper use of a power of attorney as an estate planning and elder law document depends on the reliability and honesty of the appointed agent.

Much has been written about financial exploitation of individuals, particularly seniors and other vulnerable people, by people who take advantage of them through undue influence, hidden transactions, identity theft and the like. Guardianships and conservatorships provide  the benefits of court supervision of care of vulnerable people in such contexts. Even though exploitation risks exist, there are great benefits to one individual (the principal) privately empowering another person (the agent) to act on the principal’s behalf to perform certain financial functions.

A comprehensive power of attorney may include a grant of power for the agent to represent and advocate for the principal in regard to health care decisions. Such health care powers are more commonly addressed in a separate “health care power of attorney,” which may be a distinct document or combined with other health topics in an “advance health care directive.”

Having covered the explanation of what a power of attorney is, let us look at the top benefits of having a comprehensive power of attorney.

1. Provides the ability to choose who will make decisions for you (rather than a court).

If someone has signed a power of attorney and later becomes incapacitated and unable to make decisions, the agent named can step into the shoes of the incapacitated person and make important financial decisions. Without a power of attorney, a guardianship or conservatorship may need to be established, and can be very expensive.

2. Avoids the necessity of a guardianship or conservatorship.

Someone who does not have a comprehensive power of attorney at the time they become incapacitated would have no alternative than to have someone else petition the court to appoint a guardian or conservator. The court will choose who is appointed to manage the financial and/or health affairs of the incapacitated person, and the court will continue to monitor the situation as long as the incapacitated person is alive. While not only a costly process, another detriment is the fact that the incapacitated person has no input on who will be appointed to serve.

3. Provides family members a good opportunity to discuss wishes and desires.

There is much thought and consideration that goes into the creation of a comprehensive power of attorney. One of the most important decisions is who will serve as the agent. When a parent or loved one makes the decision to sign a power of attorney, it is a good opportunity for the parent to discuss wishes and expectations with the family and, in particular, the person named as agent in the power of attorney.

4. The more comprehensive the power of attorney, the better.

As people age, their needs change and their power of attorney should reflect that. Seniors have concerns about long-term care, applying for government benefits to pay for care, as well as choosing the proper care providers. Without allowing, the agent to perform these tasks and more, precious time and money may be wasted.

5. Prevents questions about principal’s intent.

Many of us have read about court battles over a person’s intent once that person has become incapacitated. A well-drafted power of attorney, along with other health care directives, can eliminate the need for family members to argue or disagree over a loved one’s wishes. Once written down, this document is excellent evidence of their intent and is difficult to dispute.

6. Prevents delays in asset protection planning.

A comprehensive power of attorney should include all of the powers required to do effective asset protection planning. If the power of attorney does not include a specific power, it can greatly dampen the agent’s ability to complete the planning and could result in thousands of dollars lost. While some powers of attorney seem long, it is necessary to include all of the powers necessary to carry out proper planning.

7. Protects the agent from claims of financial abuse.

Comprehensive powers of attorney often allow the agent to make substantial gifts to self or others in order to carry out asset protection planning objectives. Without the power of attorney authorizing this, the agent (often a family member) could be at risk for financial abuse allegations.

8. Allows agents to talk to other agencies.

An agent under a power of attorney is often in the position of trying to reconcile bank charges, make arrangements for health care, engage professionals for services to be provided to the principal, and much more. Without a comprehensive power of attorney giving authority to the agent, many companies will refuse to disclose any information or provide services to the incapacitated person. This can result in a great deal of frustration on the part of the family, as well as lost time and money.

9. Allows an agent to perform planning and transactions to make the principal eligible for public benefits.

One could argue that transferring assets from the principal to others in order to make the principal eligible for public benefits–Medicaid and/or non-service-connected Veterans Administration benefits–is not in the best interests of the principal, but rather in the best interests of the transferees. In fact, one reason that a comprehensive durable power of attorney is essential in elder law is that a Judge may not be willing to authorize a conservator to protect assets for others while enhancing the ward/protected person’s eligibility for public benefits. However, that may have been the wish of the incapacitated person and one that would remain unfulfilled if a power of attorney were not in place.

10. Provides immediate access to critical assets.

A well-crafted power of attorney includes provisions that allow the agent to access critical assets, such as the principal’s digital assets or safety deposit box, to continue to pay bills, access funds, etc. in a timely manner. Absent these provisions, court approval will be required before anyone can access these assets. Digital assets are also important because older powers of attorney did not address digital assets, yet more and more individuals have digital accounts.

11. Provides peace of mind for everyone involved.

Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority for performing basic tasks, like writing a check or arranging for home health services. Knowing this has been taken care of in advance is of great comfort to families and loved ones.

Conclusion

This discussion of the Reasons Why Everyone Needs a Comprehensive Power of Attorney could be expanded by many more. Which benefits are most important depends on the situation of the principal and their loved ones. This is why a comprehensive power of attorney is so essential: Nobody can predict exactly which powers will be needed in the future. The planning goal is to have a power of attorney in place that empowers a succession of trustworthy agents to do whatever needs to be done in the future.  Call (301) 907-4580 (extention 104) to speak to Michael Callahan if you need to speak to an attorney about a power of attorney, will, trust or estate plan now.

/by Michael Callahan

Why Make a Will This Year?

Will 2018 be the year you make a Will and complete your estate and disability planning?

If you kick it down the road another year it won’t matter … unless 2018 is the year you die or become incapacitated or disabled.  In that case, those you care about will wish you had planned better, especially if they are financially dependent on you.

If you don’t make a Will before you die you leave an “intestate” estate.  The state has rules governing who gets your property, who has priority for appointment as your personal representative and how any of your property received by minors will be managed.  If you are confident that you and your loved ones will be perfectly satisfied with the state’s choices about all this, you don’t need a Will.

If your beneficiary designations on life insurance, retirement accounts and other financial accounts are based on the state of your family and finances five, ten or more years ago, payment from your financial assets may be delayed or directed to the wrong people.

If you have an inadequate financial power of attorney, or none at all, a court proceeding called guardianship of property may be necessary to manage your property at a cost of thousands of dollars and many wasted hours.

If you have an inadequate advance medical directive and health care power of attorney, or none at all, health care decisions may be adversely impacted.

If you decide you are going to take care of these matters this year, contact Thyden Gross and Callahan, LLP.   We can help.

/by Michael Callahan

Special Needs Trusts

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The Problem 

If you are disabled or elderly  you may not qualify for certain government benefits, such as Supplemental Security Income (SSI) and Medicaid , because your income or “countable assets” are too high.   Generally your home, furnishings, vehicle and certain other specific types of property are not counted, while  bank and financial accounts and the like are counted.

If you are already qualified, and your countable assets increase, you can lose your benefits.  For example, a parent or grandparent leaves assets to a loved one receiving government benefits and this disqualifies the loved one from receiving the benefits.  This can happen when the onset of disability is after the Will or other planning is done, or if the effect of the inheritance on government benefits is simply not addressed.  It can result in the recipient having to “spend down” the entire inheritance, i.e. pay out-of-pocket what the government benefit used to pay for.  When the entire inheritance is gone, the recipient is again eligible for benefits, but in the meantime  the entire inheritance has been wasted.

The Solution

Set up a special needs trust.  Special needs trusts, also called supplemental needs trusts, are trusts  designed to permit the beneficiary to enjoy the benefits of the assets owned by the trust without those assets being counted when qualifying for SSI or Medicaid.

A trust is an arrangement under which one person, the trustee, holds legal title to assets for the benefit of one or more other persons (the beneficiary or beneficiaries).  The trust agreement will contain  directions regarding administration, investment and distribution of trust assets.

First-Party Self-Settled Special Needs Trusts

Trusts funded with the disabled person’s own money are called first party special needs trusts.  They must meet strict requirements of federal law.  The trust must be irrevocable and established before age 65.  The trust must be for a disabled person and the trust assets can only be used for that person’s  benefit.  The trust must include a “payback” requirement.  That means any assets in the trust at termination, often at the death of the disabled person, must be paid to the state up to the amount of government benefits provided.  These trusts are often used when a disabled person comes into money, for example, upon settlement of a personal injury suit.

Third Party Supplemental Needs Trusts

Third party supplemental needs trusts are the solution to the inheritance problem.  Rather than leaving assets outright, the parent or grandparent leaves them to a trustee who receives them with the instructions to provide for the loved one’s needs – those that the government program does not cover – generally anything other than food and shelter.

It is important that the trustee has some discretion and is not required to distribute any income or principal to the beneficiary.  Also, the disabled person cannot have the right to demand payment of any income or principal of the trust from the trustee.  The trustee’s discretion and the beneficiary’s lack of a right to demand distributions are what keeps the trust assets from being countable resources under the SSI and Medicaid rules.

So long as the trust document provides trustee discretion and does not entitle the beneficiary to demand distributions, the trust can be very flexible otherwise.  These trusts are not subject to the strict federal requirements applicable to self-settled trusts.  For example, there can be other beneficiaries and their need not be a pay-back requirement.  Because the future is uncertain, every Will should contain  supplemental needs trust provisions that are triggered whenever a gift would be made under the Will directly to a person eligible for government benefits such as SSI or Medicaid.

Conclusion

Government benefits can be very important for the safety and security of the disabled and the elderly.  However, they are not very generous.  Through proper planning, a parent or other donor can ensure that their gift enhances the recipient’s quality of life and adds to  government benefits, rather than eliminating or reducing the government benefit.

 

/by Michael Callahan

Advance Directives

Advance directives allow you to express your wishes regarding health care decisions in the event that you are incapacitated and cannot communicate your preferences yourself.

Components of Advance Directives

Usually advance directives address two distinct issues: 1) directions regarding end-of-life medical care – a living will and, 2) designation of a health care agent to act in the event of incapacity –  a health care power of attorney. These two parts are often combined into one document and called an advance health care directive or by a similar name..

  • Living Will: A living will may also be called a health care declaration, or something similar. The person who makes a living will is sometimes called the declarant.   A living will is different from a last will and testament, which directs the distribution of a decedent’s estate.   A living will, on the other hand, takes effect during the declarant’s lifetime and tells medical professionals the type of care the declarant desires should she become incapable of expressing such wishes herself.

Many state laws on advance directives set forth a statutory form which covers some aspects of end-of-life medical care, containing blanks for individual directions and providing that other forms of living will are also valid (although the state laws regarding manner of execution are generally mandatory).

Maryland’s law provides a statutory form that covers three end-of-life situations: 1) Terminal condition (death is imminent), 2) Persistent vegetative state (coma), and 3) End stage condition (incurable condition that will result in death).  For each, there are three choices for level of care: a) just keep me comfortable, b) keep me comfortable and use an i.v. for hydration or nutrition if necessary, and c) use all appropriate medical interventions to prolong my life.

A living will can address other subjects including: Cardiopulmonary resuscitation (CPR); artificial life-sustaining equipment (ventilators, dialysis machines, etc.), and organ donation.

These, of course, are deeply personal decisions that require thoughtful consideration if the living is to reflect the declarant’s values and wishes.

  • Health Care Power of Attorney: A health care power of attorney may also be called a medical power of attorney or durable power of attorney for health care (among other names). You use it to nominate someone to oversee your healthcare decisions in the event you are unable to do so, either temporarily or permanently.  The person who makes the health care power of attorney is sometimes call the principal.  The person named in the document to make decisions for the principal may be referred to as an attorney-in-fact, health care proxy, health care agent, health care surrogate, or something similar.

Regardless of what the agent is called, he is obligated by law to follow your instructions regarding health care decisions.  Your instructions are included in your living will or in the health care power of attorney.  Depending upon your situation, the selection of your primary and back-up health care agent may be obvious and perfectly satisfactory – your spouse or your local and responsible child, etc.  Sometimes it is a tough choice requiring careful thought and difficult conversations.  But it is always an important choice.

When is the best time to create an advance directive?

The best time to create an advance directive is when you’re healthy because you have the opportunity to consider your options carefully when immediate health concerns aren’t on your mind. You can also discuss your choices with your loved ones ahead of time.

It is especially advisable for those who are scheduled to undergo surgery or who are critically or terminally ill to consider making an advance directive.

When does an advance directive take effect?

In general, the provisions of your living will become applicable when you are unable to make or communicate decisions regarding your medical care.  Your health care agent has authority under your advance directive under the conditions specified in the document or under state law – usually when you are unable to make or communicate the decisions yourself.  So your doctors and your health care agent will refer to, and generally be bound by, the instructions in your living will.

Can I change an advance directive?

Your advance directive remains in effect from the time you sign it until and unless you change it, which you can do at any time.  You should review your advance directive periodically to make sure it still accurately reflects your wishes regarding your medical care. If you do want to modify an advance directive, it is often advisable to simply create a new one so there is no potential confusion created by conflicting changes.

Where should I store my advance directive?

You should make several copies of your advance directive. Keep the original in a safe place that is accessible to your health care agent and let someone know where it is.  You should provide copies to the person named in the document as your agent, your doctors, and anyone else you think may be involved in your medical care.

Conclusion.

Illness or old age eventually come to us all. The time will probably come when you will need an Advance Medical Directive.  An Advance Medical Directive should be included in every estate plan. Contact us if you have questions or want to make an Advance Medical Directive.

/by Michael Callahan

Post-divorce Review of Estate Plan

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          After your divorce you should review your Will and all beneficiary designations to ensure that you do not unintentionally include a gift to your former spouse.  Although we strongly recommend against relying on statutes to correct your estate plan despite your own inaction, there are statutes that provide that the judgment of divorce eliminates prior bequests or certain beneficiary designations to the former spouse.   See Va. Code Sec. 20-111, 20-111.1, 64.1-59; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355.  The effect of these statutes on the treatment of a now former spouse in an estate plan is uncertain and incomplete and may be frustrated by federal law spousal protections.  The savings statutes are no substitute for a careful review of estate planning documents and beneficiary designations and corrective action based on the divorce settlement or judgment.

/by Michael Callahan

Wills and Elections Against the Will

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             You can improve on the intestate estate outcome by unilateral action.  You can make a Will or a new Will; or revoke a Will that leaves everything to your now estranged spouse.  We encourage clients to consider taking these actions early on in the process.

            However you cannot freely disinherit your spouse.  In each local jurisdiction the surviving spouse can renounce the gift, if any, to the spouse in the Will and elect to take a statutory share of the estate.  The surviving spouse is entitled to claim an elective share as follows:

Maryland – an allowance of $5,000 and one-half of the net probate estate if there are no surviving issue of the decedent and one-third if there are surviving issue.  Md. Code, Estates and Trusts Article, Sec. 3-201 and 3-203.

Virginia –  one-half of the augmented estate if there are no surviving issue of the decedent and one-third of the augmented estate if there are surviving issue.  Va. Code Sec. 64.1-16.1.

 District of Columbia – the surviving spouse who renounces the gift under the Will is entitled to the amount he or she would take if the decedent did not make a Will.  D.C. Code Sec. 19-113.

/by Michael Callahan

Spousal Claims in Intestate Estates

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If you die intestate (without a valid Will) your spouse is entitled to the following percentages of your net probate estate:

Maryland – the surviving spouse takes entire net probate estate unless there are surviving decedents or surviving parents of the decedent;

the surviving spouse takes $15,000 plus one-half of the net probate estate if the decedent is survived by decedents who are not minor children, or by parents of the decedent; and

the surviving spouse takes one-half of the net probate estate if the decedent is survived by his or her minor children.

See MD Code, Estates and Trust Article, Sec. 3-102.

 Virginia – surviving spouse takes entire net probate estate unless there are surviving descendants of the decedent who are not descendants of the surviving spouse, in that event the surviving spouse takes one-third of the net probate estate;

the surviving spouse also has a claim to one-half of the augmented estate if the decedent is not survived by descendants and one-third if the decedent is survived by descendants,

See Va. Code Sec. 64.1-1.

 District of Columbia – D.C. law provides that the surviving spouse or domestic partner, and minor children, are entitled to a reasonable allowance from the probate estate for maintenance during estate administration.  D.C. Code section 19-101.04

The surviving spouse or domestic partner takes the entire net probate estate if the decedent is not survived by descendants or parents;

The surviving spouse or domestic partner takes two-thirds of the net probate estate if the decedent is survived only by descendants who are issue of the decedent and the surviving spouse;

The surviving spouse or domestic partner takes three-fourths of the net probate estate if the decedent is not survived by descendants but is survived by a parent;

The surviving spouse or domestic partner takes one-half of the net probate estate if the decedent is  survived only by descendants who are issue of the decedent and the surviving spouse, and the surviving spouse has other issue; and

The surviving spouse or domestic partner takes one-half of the net probate estate if the decedent is survived by descendants one or more of who are not issue of the surviving spouse.  D.C. Code section 19-302.

            Also in each local jurisdiction there is a statutory preference for the surviving spouse to be the personal representative or executor of the estate.

/by Michael Callahan

Spousal Rights and Non-Probate assets

Generally spousal claims apply to the probate estate which only includes assets that the decedent owned at death and which did not pass by operation of law or beneficiary designation or other contract provision.   Virginia expands the spousal protections to the “augmented” estate, the calculation of which includes certain non-probate assets and prior gifts.  A federal law known by the acronym ERISA protects spouses’ rights to certain retirement plans and accounts.  Often the vast majority of a decedent’s property passes outside of probate.

            For example, many spouses own the marital home and sometime other real property in a form of ownership called tenants by the entirety (“T by E”).  One of the characteristics of this tenancy is survivorship – if one tenant dies the other succeeds to ownership of the entire property by operation of law.  A Will cannot change this result.

            Often spouses hold bank accounts as joint tenants with right of survivorship (“JTWROS”) or name each other as pay on death (“POD”) beneficiaries of their financial accounts.  These arrangements can be changed by transferring the funds or changing the beneficiary.

            You can freely change the beneficiary designation on your IRA’s.  However 401(k) accounts are subject to ERISA spousal protections.  You cannot name a beneficiary other than your spouse without your spouse’s consent and if you name no beneficiary your spouse takes by default.  A spouse’s ERISA rights in 401(k) accounts, 403(b) accounts, pensions, etc. can be eliminated only by a final judgment of divorce, or completion and delivery of a beneficiary designation with spousal consent to the plan administrator.

/by Michael Callahan

Spousal Estate Rights

The marital contract that spouses enter into at the time of the marriage includes many provisions that I often find are a surprise to some people.   One area where marriage makes a big difference is how property passes at death. 

If you are married at the time of your death your spouse has important rights to your estate, whether or not you made a Will.  And the law does not consider you unmarried just because you are separated or there is a divorce case pending.  Only the final judgment of divorce changes your status for decedent estate purposes.  A limited divorce does not terminate spousal estate rights although Virginia, but not Maryland and the District of Columbia, bars the estate claims of surviving spouses who abandoned the decedent. See Va. Code Sec. 64.1-16.3.

/by Michael Callahan