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Estate Planning

Monday, November 21, 2016

Interplay of Medical Opinions and Elder Law Issues

Read about six important areas where your doctor's evaluation is vital to your legal planning and safety...


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Monday, August 29, 2016

Why all Estate Planning Should Address Disability

Unfortunately, many older Americans will either be medically ineligible for long term care insurance or unable to afford the premiums. In that event, more aggressive planning should be considered as early as possible to make sure life savings are not depleted as a result of having to pay out-of-pocket for care. With the help of an elder law attorney, a plan can be created that will protect much of the assets of an individual or couple that would otherwise be at risk of being depleted. 

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Thursday, October 25, 2012

Elder Financial Exploitation

As chair of the Elder Law Section of the Utah State Bar, I am constantly impressed by the quality of speakers that present on behalf of our section.  Today, we listened to two prosecutors and the director of Adult Protective Services (APS) speak about Elder financial exploitation.  The incidence of financial exploitation of the elderly has increased by 50% between 2008 to 2010.  According to APS, the top 3 ways in which Utah seniors are exploited are as follows: (i) signing a quitclaim deed to their home;  (ii) adding a child or another individual to a joint bank account; (iii) unauthorized use of a durable power of attorney document.

According to APS and the prosecutors on today's panel, much abuse could be alleviated if an elderly individual had a third party to monitor their accounts for any circumspect use or charges, either by providing online limited access or by providing extra statements to the monitor.  Another suggestion our panel discussed was to give serious thought as to your agent under a durable power of attorney and the motivations of the agent.

 Although a durable power of attorney document can be the most useful and money saving document in an estate plan, as an attorney, I have seen serious abuse of durable power of attorney documents which has resulted in financial exploitation.  These documents are intended to be used (by statute) only for the benefit of the principal (eg. the senior). Criminal penalties  apply if the agent uses the document as a means of "stealing" from the principal.  The most important decision that you are making when you execute a durable power of attorney document, is the selection of a trustworthy "agent".  If possible, a senior should also seriously consider creating a durable power of attorney document which "springs" into life upon incapacity as certified by one or more physicians.  Serious consideration should also be given for the power conferred.  For example, if the power of attorney permits gifting (which is common where advanced estate planning/asset protection strategies are used), the decision to gift should be made by a special agent, who could make an impartial assessment as whether to the gift.

If you would like to read more about elder financial abuse and what to do about it, you may phone Utah Division of Aging and Adult Services at 1-877-424-4640 and request a legal guide.


Sunday, September 11, 2011

Joint Tenancy, Paid on Death (POD) and Transfer on Death (TOD) Designations

You may have thought that adding a child as a joint tenant on your home or paid-on-death beneficiary of an account would be a good idea in order to avoid the probate process when you die… but did you know that how you title your home and bank accounts could also have a dramatic and unintended effect on your estate planning?

Example:

Here’s an example:  John and Mary create mirror wills that leave their home and bank accounts to their four children in equal shares.  They appoint their oldest son, Robert, to be the personal representative under both their wills.   John and Mary also decide to add their son, Robert, as a joint tenant on the deed to their home and they also added Robert as a paid on death beneficiary of all their jointly held bank accounts. John dies, then Mary dies.  Even though John and Mary wanted their children to inherit all their property in equal shares, legally Robert now owns everything.  This is not the result that John and Mary wanted.

Joint Tenancy:

 “Joint Tenancy” is a way for two or more people to share ownership of real estate or other property. When one of the owners of the property dies, the share of that owner in the property automatically transfers to the surviving owner(s).  This automatic transfer attribute of joint tenancy is called “the right of survivorship”.  Many people do not realize that the right of survivorship trumps alternate designations in wills or trusts.   Therefore, in the example above, John and Mary’s written desires in their wills take a back seat to the designation of Robert as a joint tenant.  In other words, Robert’s ownership as a joint tenant trumps contrary directions in John and Mary’s Wills.

Paid on Death Designations:

Similarly, “Paid on Death (POD)” or “Transfer on Death (TOD)” designations on bank accounts also trump alternative directions in wills and trusts.  A bank is contractually obligated to pay to the order of whom the account owner designates as beneficiary of those funds upon death of the account owner.  In the example above, John and Mary’s bank was contractually obligated to pay Robert the balance of funds in his parent(s)’ accounts upon their death.

What should John and Mary have done?

An elder law attorney would have alerted John and Mary to the conflict that their beneficiary designations created.  By allowing the titled property to go through the probate process, their intentions under their wills would have taken effect.  Additionally, a properly funded joint or individual family trust could have avoided probate and ensured that their assets would have been divided equally among their children.





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