incapacity

Serving Southwest Florida

Helping clients plan for their family's future, by creating an efficient, thoughtful and comprehensive estate plan that preserves their legacy and gives them peace of mind.

When Parents Move In

When parents move into someone else’s household, 14% of the homeowners were the parent of the head of household in 2017. That number is an increase from 7% in 1995, according to the Pew Research Center.

“While the rise in shared living during and immediately after the recession was attributed in large part to a growing number of millennials moving back in with their parents, the longer-term increase has been partially driven by a different phenomenon: parents moving in with their adult children,” according to the Pew report.

US News and World Report’s recent article entitled “When Your Elderly Parents Move In With You” says that if your children also return home after college, you might wind up supporting your children and your parents at the same time.

The critical thing to do is to make a plan. Discuss your goals, the finances and the possibilities, which includes in-home care or nursing home care. Let’s look at how to care for aging parents in your home.

Get Financially Prepared. When parents move in, it will add new costs to your budget. In addition to health care for aging parents, the most disruptive implications are often the financial cost of supporting another dependent and having the space to accommodate them in the household. Talk about whether your parent will be contributing Social Security income or other retirement assets toward household expenses.

Think About Hiring Extra Help. Caring for a parent with significant health problems who needs help with basic living tasks can quickly become overwhelming for an adult child with children and work responsibilities. An aging parent might need around-the-clock care. A home health aide could be brought in during work hours or there’s also adult day health care services. However, these costs can add up. It’s not uncommon for the child who is caring for a parent to scale back his or her own career to accomplish both tasks.

Plan Before They Move In. Begin the discussion about the transition as early as you can. It can be doubly stressful to be executing a move in the middle of a crisis or urgent situation, like a health emergency or the death of a parent.

Remember that when parents move in, it often means you may need to schedule their activities and medical appointments. This can take time away from normal family routines.

Let us help you plan your estate.

Reference: US News and World Report (Aug. 30, 2020) “When Your Elderly Parents Move In With You”

Suggested Key Terms: Elder Law Attorney, Disability, Supplemental Security Income, Elder Care, Caregiving, Elder Care

Estate Planning in a Pandemic

What is unique about estate planning in a pandemic?  The fear of the unknown and a sense of loss of control is sending many people to estate planning attorney’s offices to have wills, advance directives and other documents prepared, reports the article “Legal lessons from a pandemic: What you can plan for” from The Press-Enterprise.

However, people are not just planning because they are worried about becoming incapacitated or dying because of COVID. High net-worth people are also planning because they are concerned about the changes the election may bring, changes to what are now historically advantageous estate tax laws and planning to take advantage of tax laws, as they stand pre-December 31, 2020.

Regardless of your income or assets, it is always good to take control of your future and protect yourself and your family, by having an up-to-date estate plan in place. Anyone who is over age 18 needs the following:

  • Health Care Directive
  • Power of Attorney
  • HIPPA Release Form
  • Last Will and Testament

Any assets without beneficiary designations should be considered for a trust, depending upon your overall estate. Trusts can be used to take assets out of a taxable estate, establish control over how the assets are distributed and to avoid probate. You don’t have to be wealthy to benefit from the use of trusts.

Preparing estate planning documents in a last-minute rush, is always a terrible idea.  Especially estate planning in a pandemic.

If you have more free time during the pandemic, consider using some of your free time to have your estate plan implemented or updated. This should be a top priority. The state of the world right now has all of us thinking more about our mortality, our values and the legacy we want to leave behind. Most estate planning attorneys encourage clients to think about the next three to five years. What would be important to you, if something were to happen in that time frame?

Estate planning is about more than distributing assets upon death. It addresses incapacity—what would happen if you became too ill or injured to care for yourself? Who would make medical decisions for you, such as what kind of medical care would you want, who will your doctors be and where will you live in the short-term and long-term? Incapacity planning is a big part of an estate plan.

When naming people to care for you in the event of incapacity, provide your estate planning attorney with three names, in case your first or second choices are not able to act on your behalf. Most people name their spouse, but what if you were both in an accident and could not help each other?

In recent months, Advance Health Care Directives have received a lot of attention, but they are not just about ventilator use and intubation. An Advance Health Care Directive is used to state your preferences concerning life-sustaining treatment, pain relief and organ donation. The agent named in your health care directive is also the person who will carry out post-death wishes, so provide as many details as you can about your wishes for cremation, burial, religious services, etc.

Trusts are a way to preserve a family legacy. A living trust gives you the ability to decide who you want involved, in case of your death or incapacity. You decide on your beneficiaries, and if you want your assets going directly to those beneficiaries or if they should be held in trust until certain goals are met, like finishing college or reaching a certain age or life milestone.

You can see that estate planning in a pandemic is not much different than during normal times.  The need is always there.

Your estate planning attorney will help you clarify family legacy goals, whether they include a beneficiary with special needs, a supplement for children who go into public service careers, etc.  Let us help you with your planning.

Reference: The Press-Enterprise (Oct. 18, 2020) “Legal lessons from a pandemic: What you can plan for”

 

Planning with a Power of Attorney

There are two different ways of planning with a power of attorney, and they have very different purposes, as explained in the article that asks “Does your estate plan use the right type of Power of Attorney for you?” from Next Avenue. Less than a third of retirees have a financial power of attorney, according to a study done by the Transamerica Center for Retirement Studies. Most people don’t even understand what these documents do, which is critically important, especially during this Covid-19 pandemic.

The Durable Power of Attorney for Finance.  The Durable POA refers to the fact that this POA will endure after you have lost mental or physical capacity, whether the condition is permanent or temporary. It lists when the powers are to be granted to the person of your choosing and the power ends upon your death.

Under Florida law, the Durable POA is effective the moment you sign the document.

Some people decide to name their spouse as their immediate agent or “attorney-in-fact”, and if anything happens to the spouse, the successor agents are the ones who need to get doctors’ letters. If you need doctors’ letters before the person you name can help you, ask your estate planning attorney for guidance.

The type of impairment that requires planning with a power of attorney for finance can happen unexpectedly. It could include you and your spouse at the same time. If you were both exposed to Covid-19 and became sick, or if you were both in a serious car accident, this kind of planning would be helpful for your family.

It’s also important to choose the right person to be your attorney-in-fact. Ask yourself this question: If you gave this person your checkbook and asked them to pay your bills on time for a few months, would you expect that they would be able to do the job without any issues? If you feel any sense of incompetence or even mistrust, you should consider another person to be your representative.

If you should recover from your incapacity, your attorney-in-fact is required to turn everything back to you when you ask. If you are concerned this person won’t do this, you need to consider another person.

Broad powers are granted by a Durable POA. They allow your attorney-in-fact to buy property on your behalf and sell your property, including your home, manage your debt and Social Security benefits, file tax returns and handle any assets not named in a trust, such as your retirement accounts.

The personal representative of your will, your trustee, and attorney-in-fact are often the same person. They have the responsibility to manage all of your assets, so they need to know where all of your important records can be found. They need to know that you have given them this role and you need to be sure they are prepared and willing to accept the responsibilities involved.

Your advance directive documents are only as good as the individuals you name to implement them. Family members or trusted friends who have no experience managing money or assets may not be the right choice. Your estate planning attorney will be able to guide you to make a good decision.

We can help you with planning with a power of attorney.

Reference: Market Watch (Oct. 5, 2020) “Does your estate plan use the right type of Power of Attorney for you?”

Suggested Key Terms: Durable, Springing, Power of Attorney, Estate Planning Lawyer, Trustee, Will, Social Security, Executor, Assets, Advance Directive Documents, Incapacity