Aging Options Blog : Washington Estate Planning Lawyer & Attorney : Rajiv Nagaich : Aging Options Law Firm : WA Elder Law, Wills & Trusts

Typical concerns about Powers of Attorney 

I'm afraid that the person I appoint won't manage my affairs properly

giving someone the potential power to manager affairs can be frightening. This is why it is important for you to appoint someone you trust to be your attorney. She must use your finances as you would for your benefit. Giving someone a power of attorney does not limit your own rights in any way. It simply gives the other person the power to act when or where you cannot act.

Does a power of attorney take away my rights?

Absolutely not. Only a court can take away your right to manage her own affairs, through a conservatorship or guardianship proceeding. In attorney simply has the power to act along with you, and as long as you are competent, you can revoke the power of attorney.

I don't have anyone I trust enough to give them power over my affairs

if you do not have someone you trust to a point, it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship. In that case, you may use a limited durable power of attorney to simply nominate the person you want to serve as your guardian. Most dates require the court to respect your nomination "except for good cause for disqualification."

What if I change my mind?

You may revoke your power of attorney at any time. You need to send a letter to your attorney telling her that her appointment has been revoked. From the moment the attorney received a letter, she can no longer act under the power of attorney. If you have recorded the power of attorney with the land records of your County or at the probate court, you must record the rev

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What is the similarity between the characters in the musical “Fiddler on the Roof” and attorneys? Tradition! 

All of my clients deal with estate planning issues: The majority of my clients

who have planned their estates have done so under the traditional notions of estate planning which, unfortunately, leaves them largely exposed to the threat of uncovered long-term care costs.

Traditional estate planning involves preparation of wills or trusts, powers of attorney, living wills and advance directives. These documents are generally

based on one of two notions. The first is that one day you will go to sleep and never wake up, and the biggest issue the estate plan needs to address is to make it easier for your loved ones to administer your estate. Alternatively, the plan will ensure that your appointed agents will be able to manage your

financial and health care affairs without missing a beat should you face

incapacity. But these solutions do not address the more urgent threat or the real issue of uncovered medical costs and depletion of the estate assets to support quality-of-life goals.

As discussed above, estate taxes no longer touch most estates. The real threat to an estate today, therefore, is not estate tax but rather the threat of

uncovered long-term care costs. Understanding that the role of the estate planning process is to evaluate potential threats that could erode your estate and afford appropriate protective measures to avoid such erosion, the process generally falls short unless it includes guidance and assistance

to your chosen fiduciaries on how they can approach the issue in a more reasoned and educated manner. The guidance and assistance is designed to aid in asset preservation through the employment of legal solutions and management of quality of life of you and involved family members.

Elder law attorney practising Life Care Planning addresses both these issues. They do so by understanding that most families dealing with disability or death of a family member seek not simply to protect assets, rather they seek to make sure that the protected wealth is used to address the care needs of the incapacitated and all those affected by the incapacity; or to bring peaceful closure to a chapter in their lives stemming from the demise of a loved one.

Through Life Care Planning much can be done to assure that should incapacity strike, quality of life of the incapacitated individual and that of others will be maximized and the affected family members will not be stressed to a breaking point dealing with the complications stemming from the incapacity.

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My wife and I both are going to be eligible turning 62 this year, and she didn’t work near as much as I did, so her benefits are much reduced. I understand she can draw 50% of what my Social Security is.  She turns 62 sooner than I do and will begin drawing from hers, and I would like to wait until I’m a little older to start drawing.  Can she convert to 50% of my social security when I start drawing mine?

Yes. Right now she will not be able to take 50% of your social security. She gets 50% of your social security when you turn retirement age. She can collect 50% of her social security right away.  When you decide to draw yours, she can switch over to the higher social security under your name. 

If you wait all the way until 71, you will get a much higher check.

If you start the process of taking social security at age 62, and you take that money religiously and put it into a bank account as if you do not have it.  At age 66, you can take that money plus interest, keep your interest, and give the money back to social security.  This will increase your benefits as if you never took the money out in the first place.  The problem with this course is that if you are working, it may become a little complicated. 

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My father passed away and I am the executor of the estate. I now have everything reduced to cash. My dad had some losses in his long-term brokerage account and the longer we leave the money in there, the more we will be recovering. How much time do I have to distribute everything and pull the money from the brokerage account?

Legally you are required to close the estate as swiftly as possible. By being the executor, you're an officer of the court. That means you are supposed to follow the rules the way they are written. They require the executor to act as swiftly as possible to allow the beneficiaries can get all the money. There is no time-line per se. I would guide my client in this particular situation would be to get all the children to agree and file the report to the court stating your reason for withholding the distribution of the funds.
 

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My mother recently passed away. My father is 94 years old. The trust contains a house, with my eldest sibling as the executor of the estate. My father does not have power of attorney set yet.  I have moved in with my father to take care of him, although I am still paying for my apartment until the end of the year.  I would like to live in the house for less than one year after he passes away to allow time to get the house ready to sell and find my own place. Am I being unreasonable?

My father is worried about making anyone upset and is unwilling to sign anything stating I can stay here although he has told me he does not have a problem with it, though others might.  What should I do?

It is not unusual for caring family members and children to set up to the plate to make someones life better.  The alternative to this is that it is likely that if she does not step up to the plate the father will have to go to an institutional care setting. If in a family of several children, one child steps up, it is my experience that the other children will be thankful that they do not have to give up their lives.  But at the end of the day, when the father passes, everyone seems to forget. Everyone gets fixated on the issue of inheritance.

Your siblings need to come together with your dad and discuss what needs to happen for his needs. He can have it stated in his will that my daughter has the right to live here for one year, and no one will have the right to do anything.  If they cannot solve the issues, it may go to court, in which case it would be up to the attorneys, who may decimate the estate and fuel the fires to the interests of the attorneys and not the family. 

I feel like it is a personal aspect in terms of being reasonable. If she chooses not to step up to the plate, than someone else will need to be paid to do so.  In this case, she would be paid for caring for her father through private resources and government programs.  This way everyone comes out better.

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One of my client Vicky calls to ask for advice regarding her aging father living in North Dakota in a nursing home. Stepmother rarely visits Dad in the nursing home and daughter would like to bring Dad to Washington so she can help care for him. Vicki relates that in a previous conversation when she had suggested the move, her dad had raised concerns over not being able to see his wife and thus refused the move. Stepmom has the power of attorney over Dad and may not be cooperative. Dad has been married to stepmom for several years.
 

Here is my advice to Vicky, you are dealing with a sticky wicket. I admire your dedication to your father. But the fact is that so long as your dad has any capacity to understand the issue and form an opinion about it, you will have no say-so. This is about your dad, not you. Your dad made the decision to marry your stepmom and give her the authority to make decisions on his behalf if he became incapacitated. People do strange things. As hard as it is for you to see your dad alone in the nursing home without visits from your stepmom, that is the choice your dad has made. Legally, you can seek guardianship over your dad, but guardianship will be granted only if you are able to show that your stepmom is negligent in her duties as agent under the power of attorney to your dad. Not visiting your dad regularly may not be enough for you to be successful.

My advice would be to discuss this issue with your dad and stepmom and propose that you are willing to relieve your stepmom of the overwhelming responsibility of caring for your dad. I am sure that somewhere deep down, your stepmom knows that she is not being a good support person and may be willing to give up her role as agent under power of attorney. If that does not work, I would have you think hard about your legal right to seek guardianship. Unless your dad approves and will not suffer from losing his ability to see your stepmom, I would advise against it. What is the point of moving your dad if he is going to be miserable? He will likely resent your involvement and die a broken-hearted man. Resolve yourself to visiting your dad as often as you can and letting him know how special he is. And keep working on a solution that is acceptable to your stepmom as well.
 

Next, should you decide to move your dad, involve a care manager from the start to help you understand your options about his care. If you are willing to bring him to your home, the care manager will assist in developing a care plan that will allow this to happen without becoming overly burdensome to you alone. If living at home is not an option, the care manager will guide you through the process of selecting an appropriate housing alternative that will address your dad’s needs and resolve your concerns.

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We are having a difficult time dealing with our parents whose health is rapidly failing. They refuse to discuss moving and are shutting us out. How should we approach them about these issues?

Why is anyone surprised that when a person refuses to consider moving out of their home. Especially when the move is to a nursing home – a term that my well be synonymous with the notion of end of life. Most children who are concerned about their parents make the mistake of thinking that they can rationally debate the issue and have parents to see the errors of their ways.   Some parents are able to deal with it, though most are not. Put yourself in their shoes. A home represents everything in life – a lifetime of hard work; independence, symbolic and actual; and pride of being in control of their own lives. Further, the process of aging is slow. Changes that outsiders can spot quickly are something that the aging elderly will not feel or notice. It is like watching your own children grow. Each day they grow, but those who see the children from time to time will notice the growth while the parents may not. Similarly, those who are aging may not see the deficits the same way others do and when the deficits are pointed out they may dismiss it as being worries not based in reality. Further, remember, as a child your parents raised you and always have had the advantage of experience over you. So, when they guided you all their lives why do you think they will view you any different than the snotty nosed kid who knew little when you were young any differently today? The better way is to encourage your parents to seek advise on how to protect their assets and learn how to avoid nursing home stay. Keeping mom and Dad safe at home.This is likely their goal. And they are likely to listen to outsiders more than someone from their children with whom they have many contacts in many different contexts, most of them being in the context of a wise parent guiding a child through life. Don’t play the role of a teacher or someone who knows more than mom or dad, be the child the parent loves and cherishes – and encourage the parent to seek assistance to address concerns they can and likely do identify with. Have them speak to their physician or a qualified professional, including an elder law attorney. 

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The emotional trauma brought on by the death of a close family member often is accompanied by bewilderment about the financial and legal steps the survivors must take. The spouse who passed away may have handled all the couple's finances. Or perhaps a child must begin taking care of administering an estate about which he or she knows little. And this task may come on top of commitments to family and work that can't be set aside. Finally, the estate itself may be in a disarray or scattered among many accountants, which is not unusual with a generation that saw banks collapse during the Depression.

Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor or personal representative in the deceased  family member's will. Matters can be a bit more complicated in the absence of a will, because it may not be clear who has the responsibility of carrying out these steps.

First, secure the tangible property. This means anything you can touch, such as silverware, dishes, furniture or artwork. You will need to determine accurate values of each piece of property, which may require appraisals. Later, you will distribute the property as the deceased directed. If property is passed around to family members before you have the opportunity to take an inventory, this will become a difficult, if not impossible, task. Of course, this does not apply to gifts the deceased may have made during life, which will not be part of his or her estate.

Second, take your time. You do not need to take any other steps immediately. While bills do need to be paid, they can wait a month or two without adverse repercussions. It 's more important that you and your family  have time to grieve. Financial matters can wait.

When you are ready, but not a day sooner, meet with an attorney to review the steps necessary to administer the deceased's estate. Bring as much information as possible about finances, taxes and debts. Don't worry about putting the papers in order first; the lawyer will have experience in organizing and understanding confusing financial statements. Just bring all the information and papers you have to the meeting  and go from there .................

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Most simply put, elder law is a legal specialty focusing on the legal needs of seniors. But that begs the question a bit. What are those legal needs? How do they differ from the legal needs of non-seniors? How do we define 'seniors'?

Unfortunately, many of the legal issues seniors face arise from their loss of mental capacity or the onset of physical incapacity. The increased likelihood that we will need care as we age, especially after age 85, the failure of the American health care system to provide for such care under standard insurance, the high cost of such long-term care, and the complicated and piecemeal public 'system' of subsidizing long-term care combine to create the need for legal expertise to guide seniors either experiencing or anticipating long-term care needs. This is the core service of elder law.

However, elder law also includes more standard estate planning, simply with an eye towards the future need for long-term care, and more urgency given the higher age and likely sooner death of the client. Elder law also includes guardianships and conservatorship proceedings over seniors who may have lost or be losing their mental capacity (or defense against such proceedings), protection of seniors from those who may take advantage of them, the resolution of disputes with nursing homes and assisted living facilities over care and related issues, and the resolution of disputes among family members about the care of their parents and the financial cost of such care.

The term 'seniors' often refers to anyone over age 65. While individuals age at different rates, as a group there's a huge difference between those between 65 and 85 and those over 85. The vast majority of those in the first age group are healthy and enjoying their so-called 'golden years', while over half of those in the latter group need some assistance getting through the day. In fact, often it is those in the first group who are caring for their parents in the second group. Elder law attorneys help those in the first group prepare for their post-golden years, and help those in the second group deal with the legal and health care issues they come up against.

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This was the question asked by one of the caller during my last week radio show Aging Options. This is a very common & good question, I get from my listeners & clients all the time. Answer to this question is if your estate is worth between 50k -1.5k million dollar, you should take a very good look at the Safe Harbor Trust. These are the estate where people have worked very hard all their life, they have said no to expensive vacations, no to brand new car every year. They have set aside money for the house that is paid for & few hundred thousand dollars in bank. These estates are now venerable to the Long Term Care cost, which is very expensive. Average cost can range anywhere between 8k - 15k per month.

Some of the exceptions to not being serious about Safe Harbor Trust is having a very very good Long Term Care Insurance Policy with life time paid benefits or if your estate is worth more than 1.5K million dollars. Here the issue is not the asset preservation but the care management. You should not ignore the importance of care management, if you are looking for dignity & quality of your life in retirement.

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