Friday, April 06, 2012 Over Age 18?
Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
When was the last time you were asked if you are over 18?1
Why do I ask? Every adult, even young adults, should sign a financial and health power of attorney. The law states that a person becomes an adult once they reach age 18. If you have children or grandchildren who are going off to school, it is important that they sign a financial power of attorney, a health power of attorney and a living will so someone has the legal authority to help out in an emergency. If there is an accident, or a serious health issue, and no power of attorney is signed indicating who is to make decisions, it will be necessary for a parent, or someone else, to file a petition at court. The petition will ask for a court order giving them the right to act on behalf of the incapacitated person. This court proceeding, called a Conservatorship or Guardianship, is expensive and time consuming.
An easy, common sense solution for everyone age 18 and older is for each person to just sign the powers of attorney forms.
We have them available for free on our website.
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1 For me it was in the Chicago airport and I ordered a glass of wine. They make everyone show identification. How silly when you have grey hair and wrinkles!
Friday, February 17, 2012 Pitfalls of Being a Guardian/Conservator
By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
"It’s your fault” may be true if you help a senior update their estate plan after you have been appointed by a court as conservator/guardian for a senior who has trouble taking care of themselves and their daily business.
What kind of "fault"? Idaho law lists a number of standards for someone appointed by the court to help others. If you are a conservator/guardian, you have many responsibilities to the person (the “Ward”) you are officially responsible to help. Some of the responsibilities are to account to the Court at least once each year about their health, their finances and how they are doing in their living situation. One major pitfall concerns the estate plan of the person you have been appointed to help.
There is a new Supreme Court Case in Idaho, (Jason Rogers v. Household Life Insurance Company, March 18, 2011) that clarifies the law of estate planning for incompetent persons. Under the law in Idaho, if someone is determined to be incompetent (that means they are mentally or physically incapable of making decisions), they cannot change their estate plan for any parts of their estate plan that involve a contract, nor can the Court appointed guardian/conservator act on their behalf. What does this mean? The Idaho law states if a Court has found a person incompetent, that person also lacks the capacity to contract. They cannot change the beneficiary on a life insurance policy, an annuity, a "paid on death" (p.o.d.) or "transfer on death" (t.o.d.) account.
Perhaps the person who has been determined "incompetent" has a "good day" where they are engaged, in the present, and know what is going on. Even on that day, if they change the beneficiary designation on an asset or their guardian/conservator makes the change at their request, the change can be set aside, and the guardian/conservator is a sitting duck for a lawsuit by the original beneficiaries of the asset.
Watch out if you have been appointed by a court to help! You could be sued for taking a "common sense" step on behalf of a person you are responsible to help.
P.S.
We have an office flag! Some people have trouble finding our office on the south side of Fort Street, between 10th and 11th, so we now have a white and green flag hanging near our front door to make it easier to notice. Happy late winter, early spring to you. My witch hazel has been blooming for 3 weeks and I have seen my first crocus blooming in my yard. Yeah!
Saturday, July 30, 2011 Some Day You May Be Miss [or Mr.] Daisy. Are you ready?
By: Susan M. Graham, Certified Elder Law Attorney, The Graham Law Office, P.A., Boise, Idaho 83702
Driving in this country is important. You can elect when and where you are going out. Losing driving privileges can be distressing as it represents a milestone in life that a person is no longer physically able to drive and they lose some of their independence.
But, there may come a time for each of us when it is no longer safe to drive, and we may not notice (or don't want to notice) when that day arrives.
I don't want to be like my client who drove down the street, scrapped 15 parked cars and clipped off every car's mirror. He denied it was his fault. "They all parked wrong."
What steps can we take to protect us from hurting ourselves or hitting some innocent person?
Plan ahead!
Authorize a trusted agent, perhaps your health care agent, to help make the decision that you are no longer capable of driving. Here is some suggested language to add to your health power of attorney.
My agent is authorized to tell my doctor that in my agent's opinion, I am a danger to others when I drive. I realize that this might result in the loss of my driving license and driving privileges. I also realize that I may not agree with my agent when my agent comes to this conclusion. However, I do not want to endanger myself and I do not want to endanger others. Therefore, I put this decision in my agent's hands, as I have the utmost trust and confidence in my agent.1
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1Driving Miss Daisy, by Ruth A. Phelps, Trusts & Estates, July, 2011, pages 18-20.
Friday, December 17, 2010 Give The Greatest Gift-Peace of Mind
The greatest gift you can give the special people in your life is to make certain your affairs are in order. Then, they can help you if you are too ill to help yourself or deal with the issues the day you die. What a grim topic to talk about during the Holiday Season. But, in fact, what a grand gift to give your family, friends and you - the “Peace of Mind” that you and your family are covered if unexpected events happen such as serious illness or death.
How can you provide that “Peace of Mind”? Set up or review your estate planning documents. At a minimum everyone needs the following documents:
a. A Health Power of Attorney to indicate who could talk to the medical professionals if you are unable to communicate.
b. A Living Will which indicates your wishes about end of life treatment you want.
c. A Financial Power of Attorney which identifies who you want to handle modest financial decisions if you are not able to take care of your money.
d. A “Last Will and Testament” or a “Revocable Trust” to set forth who you want to handle your affairs when you die and who will receive your property.
If you have no estate plan in place, go to our website ( www.graham-lawoffice.com) and down load the FREE forms we have available to get you started.
Happy Holidays to you and may 2011 be a healthy and fun filled year for you!
P.S. Thank goodness starting next week the days will be getting longer, even though winter has not started, I’m ready for Spring.
Friday, October 22, 2010 Easy Steps To Make Your Power of Attorney Work
Idaho adopted a new Financial Power of Attorney law in 2008. Everyone is just getting used to the new forms. Why have one? The power of attorney allows the people you elect (your agents) to handle financial business on your behalf. A “durable” power of attorney means it is effective even if you are incompetent.
One reason for the new law was to create a system so the power’s of attorney would be accepted by more banks and financial institutions. Under the new law a financial institution has to tell you if they won’t accept the power of attorney. But if they tell you they won’t accept the power, there is not much you can do to enforce the power of attorney short of a lawsuit. No one wants to go down that expensive road.
So what can you do? If you really want your power of attorney to be accepted by your bank, and you want your agents to be able to use the power if you are too ill to handle your finances, take the document to your bank now and see if they will accept it. If not, the bank may have their own form that you can complete to make sure your agent has the power to help you and access your funds when you are unable to act. Friday, May 07, 2010 What Is Your Vision Of Your Future?
Chapter #2
Before you can come up with an actual plan for your estate, you need to define what you want your future to look like.
You know where you are now, if you took the time to assess your current situation by identifying the items in the April 30, 2010 blog. This is your starting point - point “A” on your map of life. The next step requires you to create a powerful vision (goals) of where you want to go, now while life is good, and also in the bad days when death occurs, or should care be needed as you age. Once you are specific about your vision, Point “B”, it is possible to put together a plan to help you accomplish your goals.
So pull out your pad of paper again and title at least three different pages [1] The good days, [2] When I die, and [3] What if I need help as I age.
Most people become serious about estate planning when they approach or reach retirement age. Planning for the good days can include going back to school, paying for a grandchild’s education, volunteering, getting a part-time job, traveling, playing golf every day and endless other options. Next to each of the items you may want to write the estimated cost in dollars and time and if you need to have other people involved.
Next plan for your death. This will include the type of funeral you want. Choose who will handle your affairs when you die: a spouse, family, friends or a professional bank trust department. If you name an individual, decide on an alternate if the first person cannot do the job, due to illness or they predecease you. If you have people who are dependent on you, such as a minor or disabled person, what arrangements do you want to protect their future? If you have pets, who do you want to provide for their care? How do you want your assets distributed among your family, friends and charities? Do you have loved ones who will need to have their money managed for them? There are many more decisions that need to be made for handling your affairs after your death, but being able to answer the questions listed here is a good start.
Lastly, consider if you need care before you die. How do you want that to be provided for? Most people ignore this part of planning, even though there is a 70% chance of needing care before you die. Why do people need care: you just get old and no longer can live safely in your home, or you have a fall or have dementia. What type of care do you want? There are lots of choices: bring in caregivers to the home, move to a safer place such as a retirement home, assisted living or skilled nursing care facility. Who do you want to make health and financial decisions for you if you are not able to make these decisions? How do you plan to pay the expenses related to this care: out of pocket, long-term care insurance, Veteran’s benefits, Medicare or Medicaid?
Once you have accomplished these three additional steps of clarifying your vision of the future you want for yourself and your family, you have taken a significant step forward in planning your estate to protect your independence and assets.
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We help retired people create security in their lives by protecting their assets and independence from excess taxes, health emergencies and the interferences of strangers, even if they are embarrassed to admit their retirement fears. Call for a FREE appointment with attorney, Susan Graham, to help create your security. Call before June 30, 2010 and we will send you a FREE information on “General Qualifications for Non-Service Connected Veteran’s Aid and Attendance Benefits.”
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