Revocable Living Trusts - Part 1

There has been a lot of information floating around these days about the use and misuse of Revocable Living Trusts. The purpose of this three-part article is to separate fact from fiction about the use of this estate-planning tool. In Part 1 we will look at the parties to a Revocable Living Trust and in Part 2 we will look at some trust advantages. In Part 3, we will look at when it is appropriate to use a Revocable Living Trust.

A Revocable Living Trust is a popular estate planning tool, because in the right situation, it will enable a person to (1) Avoid probate; (2) Reduce the chances of a guardianship upon incapacity; and (3) Reduce or eliminate estate taxes; (4) Maintain control of assets; (5) State a plan of distribution of assets at the death of the second spouse.

We will talk about these obvious advantages of a Revocable Living Trust in a minute, but for now, lets look at the three parties to a trust:

1. Trustor – Sometimes also referred to as settlor or trust-maker. This is the person who owns the assets and contributed or re-titled all assets to the revocable living trust (“put them in the box”). If Husband and Wife joint own all assets, they would both be Co-Trustors of their joint trust.

2. Trustee – This is the person who manages the assets contained in a trust. Typically the initial trustee is the person who sets up the trust. If Husband and Wife established a Revocable Living Trust, both Husband and Wife would be co-trustees of the Husband and Wife Living Trust. Upon the death of either spouse the other would be the remaining initial trustee.

Upon the death of Husband and Wife, a successor trustee would be named. The successor trustee could be a person, such as the child or children of the Trustor. You can name more than one child as successor trustee. The question of whether this is a good idea has to be decided by you!

Finally, the successor trustee could also be a corporate or institutional trustee, such as a bank trust department. Since corporate trustees are not emotionally tied to any family member, they can be relied on to carry out your wishes contained in the trust. Most banks charge a small fee for this service (usually around 1%) but the fee is not normally charged until they start work, which is after your death or incapacity.

3. Beneficiary – These are the persons that are designated to receive your money and other property at your death. Normally no assets are distributed until after the death of the second spouse. At that time, assets can be immediately distributed to any beneficiary that you have named in the trust. However, if you wish, your assets can be held in trust and can be distributed according to your plan. For example you can state that the money is to be used for a child’s college expenses or held for their retirement.

In tomorrow's blog, we will talk about some trust advantages - see you then!

Estate & Elder Law Workshop at First Community Bank

You are invited to a workshop entitled "Estate, Nursing Home Protection and Life Care Planning" which will be presented on:

Date: Tuesday, September 29th,
Time: 6:30 - 8:00 p.m.
Location: First Community Bank
3084 Bill Foster Memorial Hwy, Cabot, AR.
Refreshments provided. Sponsor is First Community Bank

You should especially attend if:
1. You have not done an estate plan
2. Your estate plan is more than 5 years old
3. You do not have current health care documents that are HIPAA Compliant
4. You have an aging parent that has assets they would like to protect should they become incapacitated and need nursing home care.
5. Your parent needs care now and YOU are the caretaker.

First Community Bank has just opened their new branch at Exit 16 (across from McDonald’s). The workshop will be held in their lobby, after hours. We will have refreshments. It will be fun. We hope to see you there.

Life Care Planning - Bridging the GAP

Last year when Cindy and I were attending the NAELA Elder Law Conference in Hawaii, I recorded a short clip about why I'm an elder law attorney. Unfortunately, the whole clip didn't make the blogisphere trip, but here's what came thru...

http://technorati.com/videos/youtube.com%2Fwatch%3Fv%3DtZvi9e17T2g


The rest of the story is that after personally dealing with my Mom's situation I knew that I needed to shift my focus to helping people who had gone through what I had just endured. My Mom had an unexpected (at least unexpected to me) stroke after going through a valve replacement surgery. The doctor told her that she needed to have this done or she had a high risk of heart attack or stroke. She told me that if she had a heart attack and died, that would be O.K., but she did not want to have a stroke. At age 85, she was in good health, was living alone, driving to the grocery store and church and enjoying life -so at the advice of doctors, she risked having the surgery. She made it thru the surgery and after a 3 week hospital stay, went home. A week later, she had her stroke.

After her stroke, it was impossible for her to live at home, so we had 2 years of nursing homes, hospitals and ultimately hospice before her death. I knew a lot about practicing law prior to this time, but knew nothing about all of the many day-to-day things that needed to be done to take care of my Mom. I had to learn, the hard way, about all sorts of things to make sure Mom got the best possible care.

I like many others before me had fallen into THE GAP - that is, the gap between legal issues and health care issues. It seemed that no person or entity was filling the gap – it was just there. Lawyers would help families sort through the legalities, then wish them the best of luck on the health care side. Health care providers would do just the same thing from their end. Families were left to figure out how to navigate the great gap in between.

About this time, I found that a few cutting-edge elder law attorneys were recognizing this dilemma and were facing it head on in their law practice. They hired life care planners, who worked directly with families to help with critical life care decisions. They would take the families by the hand and walk with them through THE GAP. We started working with life care planners a couple of years ago in our law firm. Since we have, I can’t imagine not doing so. Now we have a road map. No family should have to traverse the gap alone. We can help the family with all of the legalities (wills, trusts, powers of attorneys, Medicaid and Medicare, etc.) then we can walk them through the gap to the health care side to make sure that their parent is getting the best possible care, in the least restrictive environment, without going broke.

Most of us already have our plate full. We have a job, children, a million things going on in our lives - then Mom or Dad has a stroke or Alzheimer's or something bad - that demands immediate attention. When this happens in your family, don’t venture out into the gap alone – give us a call and we’ll break out the roadmap.

Time-Out Workshop

Every year the Elder Law Practice sponsors a workshop for health care professionals called “The Time-Out Workshop”. This is a workshop where doctors, nurses, nursing home administrators, social workers, and others in the health care profession that serve Seniors, can spend a day learning relevant, cutting-edge information, networking with each other and just having fun enjoying a day out of the office.

This year the Time Out Workshop is held on October 13th at the U of A Cooperative Extension Service at 2301 S. University Avenue in Little Rock. We start gathering at 8:00 for Starbucks coffee and Danish, browse vendor exhibits, then move to the auditorium at 8:45 for program kick-off. This year, our awesome slate of Time Out Workshop speakers are as follows:

Neal Wyatt, D.O.
Artificial Nutrition and Hydration: The Great Debate
Dr. Wyatt is the Corporate Medical Director for Arkansas Hospice since October, 2007 and has worked with Arkansas Hospice since December of 2006. He is Board certified in Family Medicine and Hospice and Palliative Medicine.
Very few medical topics over the years have garnered such great debate as the issue of artificial nutrition and hydration (ANH). This topic has stimulated great discussion among medical and social ethicists, the legal system, and medical care providers. Much of what is believed and practice in the clinical realm is contradictory to the few studies that have been published, in particular when discussing the issue of ANH in the terminal setting. Medical care has progressed to a place where it is not enough to ask if “we can”, but also to ask if “we should”. In this lecture and discussion, we will look at some of the clinical studies that should drive some of our decision making as health care professionals, and then will discuss the various ethical and legal principles that both drive and govern how we look at this complex issue. We will conclude by looking at a comprehensive way to begin this discussion with patients and families.

Morgan Sauer, M.D
I’d Rather Tap Dance on a Landmine
Medical providers and many of those in the health care system are “deathly afraid” to discuss death and dying with their patients. Conflict arises from unmet needs and unmet expectations. We will discuss ways to empower your patients by effectively communicating.

Carol J. Randolph, MSNc, RN, CDE, APN
Diabetes Management- Just when we thought we understood, the drugs and rules are changing!
Carol has completed a Master’s of Science in Nursing from UAMS and has become a board certified Advanced Practice Nurse in 2002. Since that time she has practiced in Endocrinology at LRDC in Little Rock. She has also been a certified diabetes educator since 1996 and will give us an important update on the topic of Diabetes Management for the Elderly.

Kim Curseen, M.D.
Ethical Issues in the Terminally Ill Patient – Part 1, Options of Last Resort. Dr. Curseen is a Palliative Care Fellow, UAMS Department of Geriatric Medicine. Her previous Fellowship was also in Geriatric Medicine (2007) at Yale Primary Care Internal Medicine Residency Program. Dr. Curseen will discuss the topic of Withholding and Withdrawing Life Sustaining Treatment.

We will have Starbucks coffee & Danish in the morning, lunch at noon, snacks at breaks, ice-cream truck during afternoon break, door prices, grand prize, 5.25 hours of CE Credit and a LOT OF FUN. If you haven’t registered, call us immediately at (501) 843-9014 to do so. Or send us an e-mail at doug@arkelderlaw.com and we’ll get a registration form to you. Either way, please act now. We don’t want to miss you at this year’s Time Out Workshop. See you there.

4 NOW Documents

If you think about it, a Will or Trust does nothing to help YOU. The primary benefit is for your family when you die. Both documents say who gets your assets when you die and both name a person to administer your estate. There are many other differences in a Will and a Trust which will be discussed in much greater detail in future blogs. The purpose of this blog post today is to discuss what I refer to as “NOW Documents”. These are documents that help YOU NOW, while you are still living.

1. Property or Financial Power of Attorney. This is a legal document in which you appoint an “attorney-in-fact” (not to be confused with attorney-at-law) to make financial or property decisions for you. In effect, the person you name “steps in your shoes” since you give them power to take certain actions for you. Although a power of attorney can be designed to be immediately effective, for estate planning purposes, it is normally springing, that is not effective until you are certified incapacitated by two physicians. Gone are the days where we can routinely ‘get-by’ with a one-page power of attorney. Most financial institutions, brokers and others want to see the power that you are trying to enforce specifically laid out in the power of attorney. As a result, a properly prepared power of attorney may be 20 –30 pages long. The power of attorney should be durable, that is, be effective even if you are incapacitated.

2. Health Care Power of Attorney – In this document, you appoint a health care attorney in fact to make health care decisions for you in the event you are not able to make such decisions for yourself. This document authorizes your decision maker to make all health care decisions on your behalf, if you are not able to make them yourself, including the ultimate “pull the plug” decision, discussed in Private Living Will below. For example, I was the attorney in fact under my Mom’s Health Care Power of Attorney after she had her stroke. For 2 years, I made all health care decisions for her, since she could not make them for herself. This is the ultimate NOW document, since it authorizes another person to make decisions that have a profound effect on your quality of life, while you are living but not able to make decisions for yourself. This document needs to be separate from the property power of attorney, not just a sentence or paragraph in that document – it is much too important for that! Also, since a separate body of Arkansas law governs health care powers of attorney, they need to be designed and executed separate and apart from a property power of attorney.

3. Private Living Will - This is the state specific document whereby the attending physician certifies that you are terminal and irreversible or permanently unconscious. In this event the physician may withhold or withdraw treatment that only prolongs the process of dying. The private living will may be designed to require that the attending physician consult with the person appointed in your Health Care Power of Attorney before withholding or withdrawing treatment that would unnecessarily prolong your life. Having personally been in the shoes of decision maker in a situation like this, I can testify that this is not an easy decision to make. It is very helpful not only to have a very good living will that describes what treatment you do and do not want, but also to have a conversation with the person that you are appointing to make this decision for you – having had this conversation makes It much easier for the decision maker to make the decision that you want them to make when the time comes.

4. HIPAA Release - Because of the new privacy laws, it is imperative that you authorize medical personnel to release your confidential medical information to certain family members. Without this document, if a medical provider releases any of your confidential medical information to anyone, they most likely have violated a provision of this federal law. If you go into the hospital for an elective procedure, they will ask you to sign a HIPAA (Health Insurance Portability and Accountability Act) authorization on the spot, before your surgery. However, if you go into the hospital on a stretcher, you are not able to sign anything! I hear stories almost every day of family members who are shocked when the hospital won’t even tell them what room their loved one is in – much less give them any health care information. Don’t get upset at the doctor or nurse or medical provider – they are just following the letter of the law. In some cases, release of this information is a felony! Don’t put them or yourself in this situation. Sign a HIPAA Authorization designating who you want to have your protected health care information NOW – before something bad happens.

The above documents are necessary to complement any estate plan. They are normally referred to as ancillary documents since they complement either a will or trust based plan. However given the above descriptions, I think you understand why I think that these NOW documents are the most important documents in any estate plan.

5 Reason Why People REALLY Should Plan...

Why do today what we can put off until tomorrow? Sounds funny – but that seems to be the motto of many folks who don’t do the planning that they know they need to do. The American Bar Association estimates that around 70% of people have never done estate planning at all. After having practiced law for over 24 years, I feel that this number is low. We all know why we don’t plan - we love to procrastinate! However, in this article, I want to discuss five reasons why people REALLY should plan.

1. Once you lose your mental capacity to plan, it’s too late for you to sign documents. Sometimes folks plan to plan, but never get around to it. Then Alzheimer’s, stroke or other mental or physical ailments creep up a little at a time, until you reach the point that – IT’S TOO LATE! And when it’s too late, it is too late forever. If this has happened to someone in your family, don’t despair – there are still some good crisis planning strategies. However, if you’re reading this and still have your capacity, don’t wait any longer. Contact your elder law or estate planning attorney and do something NOW, while you still have the capacity to do so.

2. There is now a 5 year look-back rule on all transfers. This means that if you transfer (give) assets to someone for less than full and fair value, which is referred to in the business as an ‘uncompensated transfer’, then you may suffer a penalty as a result of the transfer. This means that because of the transfer, you may not be able to receive Medicaid benefits for many months. This also means that because of this uncompensated transfer, the person who needs care may not be able to get it or may have to sell assets that they could have otherwise kept had proper pre-planning been done.

3. If you do proper estate planning more than 5 years before the onset of incapacity, you can protect many valued assets (such as the family farm, money, rent houses, etc.). Many times, those going into a nursing home will have a special asset, such as the family farm, money, rent houses, etc. , that they do not want to lose. Families often tell me that they don’t mind spending the money for long term care, but they really don’t want to lose the farm or other treasured asset. With proper pre-planning, done more than 5 years before the need for long term care arises, these treasured family assets can often be protected.

4. When you pre-plan your estate, your reasoned, thought-out choices will be carried out, rather than some last minute, band-aid “fix”. No one knows your business or your family better than you. This statement is obvious. If you meet with an elder law or estate planning attorney while you still have capacity, you will not only be able to protect your assets from certain types of financial loss, but you, with their help, will be able to craft a plan that will greatly benefit your family, sometimes for generations. Last minute planning often results in band-aid fixes which is never as good as planning when time, capacity and resources are all on your side.

5. You can make decisions regarding who handles your estate during incapacity and who makes health care decisions for you. When people think about estate planning, they are often thinking of a will or a trust. However, the most important estate planning documents are neither of the above. A properly prepared financial power of attorney, a separate health care power of attorney, a private living will and a HIPAA Authorization, are all critical documents, because they determine who has control over your finances, property and health care decisions while you are alive. It is critical to understand the workings of the health care decision making process and to discuss this process with your family and with your attorney. We will discuss this process and the documents that make it all happen in our next blog.

Hopefully, after reading this your will not walk, but run (carefully!!!) to your elder law or estate planning attorney’s office and start work on a properly prepared estate plan for you and your family TODAY.

Funeral Pre-Planning is a Great Idea

Thursday night we did a Workshop at ASU – Beebe concerning the need for Advance Planning. Our co-sponsor for the event was Westbrook Funeral Home of Beebe. We had a good crowd and a lot of interest. At this workshop, the primary focus was how to protect assets in the event of a long term care stay. The reality is that if you or a loved one has to go to a nursing home and you haven’t done estate planning in advance, your options are limited. However, there are good things that can be done to preserve some assets. One thing is pre-planning and pre-paying for your funeral. A pre-paid irrevocable burial contract is an exempt resource in Arkansas for Medicaid planning purposes. There are many ‘maybes’ in life, but dying is not one of them. If the parents don’t pre-pay for their funeral and last expenses with some of their few remaining dollars, this expense may fall in the laps of the kids when the parents die. Pre-planning and pre-paying for your funeral is also a good idea for two additional reasons: 1) It takes the emotional strain of this decision off the kids at the time of death; and (2) It freezes the cost – a person in the funeral industry told me that the cost of final expenses was going up approximately five percent a year. By locking this in now, you are saving a lot of money.
So, the two primary lessons I hope you learned from this blog post are:
1. Pre-plan your estate while you have the capacity to do so. I will discuss many reasons why you should do this in my next blog post.
2. Pre-plan your funeral because (1) An irrevocable pre-paid burial contract is an exempt asset for Medicaid purposes; (2) To protect your family from the emotional trauma of having to plan for you at the last minute; and (3) To freeze the costs, which, like everything else, are rising.

Assisted Living Facility Keeps Residents Hoppin'

Last night I was invited to speak at an Alzheimer's support group at a fairly new and very nice assisted living facility in Malvern. I arrived a little early - just in time to hear the tail end of a report of the Activities Director of the facility. The range of activities available to residents astounded me. I think that I only expected to hear about Friday bingo and afternoon card games. Instead, the Activities Director spoke of (1) Opening the place up for Halloween and told how many kids were there last year and how the residents enjoyed it tremendously; (2) A 50's Day, complete with malt shop, soda jerks, sock hop and 50's outfits; (3) Art classes and crafts of different kinds; (4) Beauty pageant; (5) Senior Olympics; (6) Dunkin' Booth; (7) Gospel Singing and on and on...

You would have to try very hard to be bored in this place! If the residents participate in 1/2 of the available activities, they would have no trouble sleeping. Several years ago, the only option for seniors was either stay at home or go to a skilled care nursing home. Today, there are several good options - one of which is an assisted living facility. If you are a Senior or have a Senior parent who is needing help, check out the assisted living facilities in your area. I think that you will be pleasantly surprised.

FREE Alzheimer's Planning Workshop in Malvern

The Meeting in Malvern at
The Crossing in Malvern

Join us for a FREE 1-Hour Alzheimer's planning workshop next Tuesday night (September 8th) at the Crossing at Malvern. Workshop time will be from 6:30 - 7:30. We'll be discussing relevent legal issues that you need to know including Medicaid Qualification, Powers of Attorney, Estate Planning issues and many more. To reserve your spot, just call our office at
(501) 843-9014 to reserve your seat(s). We look forward to seeing you there.

Doug Jones
http://www.arkelderlaw.com/


The Crossing at Malvern
720 N. Walco Road, Malvern
http://www.thecrossingatmalvern.com/