Aging Parents and Blended Families Create Estate Planning Challenges

Law school teaches about estate planning and inheritance, but experience teaches about family dynamics, especially when it comes to blended families with aging parents and step siblings. Not recognizing the realities of stepsibling relationships can put an estate plan at risk, advises the article “Could Your Aging Parents’ Estate Plan Create A Nightmare For Step-Siblings?” from Forbes. The estate plan has to be designed with realistic family dynamics in mind.

Trouble often begins when one parent loses the ability to make decisions. That’s when trusts are reviewed for language addressing what should happen, if one of the trustees becomes incapacitated. This also occurs in powers of attorney, health care directives and wills. If the elderly person has been married more than once and there are step siblings, it’s important to have candid discussions. Putting all of the adult children into the mix because the parents want them to have equal involvement could be a recipe for disaster.

Here’s an example: a father develops dementia at age 86 and can no longer care for himself. His younger wife has become abusive and neglectful, so much so that she has to be removed from the home. The father has two children from a prior marriage and the wife has one from a first marriage. The step siblings have only met a few times, and do not know each other. The father’s trust listed all three children as successors, and the same for the healthcare directive. When the wife is removed from the home, the battle begins.

The same thing can occur with a nuclear family but is more likely to occur with blended families. Here are some steps adult children can take to protect the whole family:

While parents are still competent, ask who they would want to take over, if they became disabled and cannot manage their finances. If it’s multiple children and they don’t get along, address the issue and create the necessary documents with an estate planning attorney.

Plan for the possibility that one or both parents may lose the ability to make decisions about money and health in the future.

If possible, review all the legal documents, so you have a complete understanding of what is going to happen in the case of incapacity or death. What are the directions in the trust, and who are the successor trustees? Who will have to take on these tasks, and how will they be accomplished?

If there are any questions, a family meeting with the estate planning attorney is in order. Most experienced estate planning attorneys have seen just about every situation you can imagine and many that you can’t. They should be able to give your family guidance, even connecting you with a social worker who has experience in blended families, if the problems seem unresolvable.

Reference: Forbes (June 28, 2021) “Could Your Aging Parents’ Estate Plan Create A Nightmare For Step-Siblings?”

 

What Is Elder Law?

With medical advancements, the average age of both males and females has increased incredibly.  The issue of a growing age population is also deemed to be an issue legally. That is why there are elder law attorneys.

Recently Heard’s recent article entitled “What Are the Major Categories That Make Up Elder Law?” explains that the practice of elder law has three major categories:

  • Estate planning and administration, including tax issues
  • Medicaid, disability, and long-term care issues; and
  • Guardianship, conservatorship, and commitment issues.

Estate Planning and Administration. Estate planning is the process of knowing who gets what. With a will in place, you can make certain that the process is completed smoothly. You can be relieved to know that your estate will be distributed as you intended. Work with an experienced estate planning attorney to help with all the legalities, including taxes.

Medicaid, Disability, and Long-Term Care Issues. Elder law evolved as a special area of practice because of the aging population. As people grow older, they have more medically-related issues. Medicaid is a state-funded program that supports those with little or no income. The disability and long-term care issues are plans for those who need around-the-clock care. Elder law attorneys help coordinate all aspects of elder care, such as Medicare eligibility, special trust creation and choosing long-term care options.

Guardianship, Conservatorship, and Commitment Matters. This category is fairly straightforward. When a person ages, a disability or mental impairment may mean that he or she cannot act rationally or make decisions on his or her own. A court may appoint an individual to serve as the guardian over the person or as the conservator the estate, when it determines that it is required. The most common form of disability requiring conservatorship is Alzheimer’s, and a court may appoint an attorney to be the conservator, if there is no appropriate relative available.

Contact a local estate planning or elder law attorney if you have questions.

Reference: Recently Heard (May 26, 2021) “What Are the Major Categories That Make Up Elder Law?”

 

Will My Power of Attorney Be Good Enough?

A general power of attorney is no longer effective when the principal becomes incompetent. However, a general durable power of attorney will remain in effect.

FedWeek’s recent article entitled “When a Durable Power of Attorney Might Be Preferred” explains that many states allow powers of attorney to be “springing.” These powers are executed today but don’t become effective until later, when some specified event occurs, like when the principal’s physician states in writing that the principal has become incapacitated.

Springing powers add an additional level of uncertainty at a time when clarity will be needed. some doctors also won’t want to go on record that someone is incapacitated, because of their potential liability.  When the principal goes in and out of incapacity also raises questions about the application of a springing power.

After you have a power of attorney drawn up, signed, and witnessed, you should file copies with the financial institutions where you do business. Make certain that your bank or brokerage firm will accept your power of attorney. If there’s a problem, and you know in advance, you can work with the institution to make sure that the document will be honored.  Many financial institutions also have their own power of attorney forms they prefer to be used. They may not accept one drafted by your estate planning attorney.

A power of attorney technically lasts forever. However, in reality, if the document looks to be stale, a financial institution may have issues with it.  As a result, a power of attorney should be reviewed every five years or so with an experienced estate planning attorney.

If there’s been a change in your circumstances, you may want to modify the document.

Reference: FedWeek (April 15, 2021) “When a Durable Power of Attorney Might Be Preferred”

 

Can a Person with Alzheimer’s Sign Legal Documents?

If a loved one has been diagnosed with Alzheimer’s disease or any other form of dementia, it is necessary to address legal and financial issues as soon as possible. The person’s ability to sign documents and take other actions to protect themselves and their assets will be limited as the disease progresses, so there’s no time to wait. This recent article “Financial steps to take when dealing with Alzheimer’s” from Statesville Record & Landmark explains the steps to take.

Watch for Unusual Financial Activity

Someone who has been sensible about money for most of his life may start to behave differently with his finances. This is often an early sign of cognitive decline. If bills are piling up, or unusual purchases are being made, you may need to prepare to take over his finances. It should be noted that unusual financial activity can also be a sign of elder financial abuse.

Designate a Power of Attorney

The best time to designate a person to take care of finances is before she shows signs of dementia. It’s not an easy conversation, but it is very important. Someone needs to be identified who can be trusted to manage day-to-day money matters, who can sign checks, pay bills and supervise finances. If possible, it may be easier if the POA gradually eases into the role, only taking full control when the person with dementia can no longer manage on her own.

An individual needs to be legally competent to complete or update legal documents including wills, trusts, an advanced health care directive and other estate planning documents. Once such individual is not legally competent, the court must be petitioned to name a family member as a guardian, or a guardian will be appointed by the court. It is far easier for the family and the individual to have this handled by an estate planning attorney in advance of incompetency.

An often-overlooked detail in cases of Alzheimer’s is the beneficiary designations on retirement, financial and life insurance policies. Check with an estate planning attorney for help, if there is any question that changes may be challenged by the financial institution or by heirs.

Cost of Care and How It Will Be Paid

At a certain point, people with dementia cannot live on their own. Even those who love them cannot care for them safely. Determining how care will be provided, which nursing facility has the correct resources for a person with cognitive illness and how to pay for this care, must be addressed. An elder law estate planning attorney can help the family navigate through the process, including helping to protect family assets through the use of trusts and other planning strategies.

If the family has a strong history of Alzheimer’s disease or other cognitive diseases, it makes sense to do this sort of preparation far in advance. The sooner it can be addressed, even long before dementia symptoms appear, the better the outcome will be.

Reference: Statesville Record & Landmark (April 11, 2021) “Financial steps to take when dealing with Alzheimer’s”

 

What Is a Guardianship?

We would like to think that all of our very responsible parents and relatives have their legal documents in order. However, that is not always the case. Florida Today’s recent article entitled “One Senior Place: What is guardianship and should I seek it?” explains that we need to have a serious discussion with our loved ones and determine if, in fact, “their affairs are in order.” If not, a guardianship may be in their futures.  That is because a guardianship is really a last step.

Guardianship is a legal process that is used to protect a senior who is no longer able to care for his or herself due to incapacity or disability. A court will appoint a legal guardian to care for a senior, who’s called a ward. A legal guardian has the legal authority to make decisions for the ward and represent his or her personal and financial interests. A court-appointed guardian can also be authorized to make healthcare decisions. In a guardianship, the senior relinquishes all rights to self-determination, so you can see how this is the choice of last resort.  If a suitable guardian isn’t found, the court can appoint a publicly financed agency that serves this role.

A doctor will examine a senior and determine if he or she is incompetent to make his or her own decisions. The judge will review the senior’s medical reports and listen to testimony to determine the extent of the alleged incapacity and whether the person seeking guardianship is qualified and responsible.

A guardian can be any competent adult, such as the ward’s spouse, another family member, a friend, or a neighbor. There are even professional guardians. The guardian will usually consider the known wishes of the person under guardianship.

Guardianship can be very costly and can involve a profound loss of freedom and dignity. As a result, speaking with an experienced elder law attorney is essential.

However, there are things that any competent adult can do to decrease the chances of ever needing guardianship. This includes:

  • Drafting a power of attorney for finances; and
  • Drafting an advance healthcare directive, which names a surrogate decision maker for your healthcare decisions, including the right to refuse or terminate life-sustaining medical care based on your wishes.

Moreover, talk about your wishes and all your estate planning documents with your family. That way they’ll know how to put your plan into action, if required in the future. Contact an experienced estate planning attorney or an elder law attorney to assist you.

Reference: Florida Today (March 23, 2021) “One Senior Place: What is guardianship and should I seek it?”

 

What Is a Conservatorship?

A conservator is appointed by a judge. This person handles the estate of an incapacitated adult, as well as their finances, their basic affairs and everyday care. Administrative matters such as Medicare, insurance, pensions, and medical coverage are all also managed by the conservator. The conservator must keep meticulous records that are subject to review by the judge.

The Advocate’s recent article entitled “Alzheimer’s Q&A: What is adult guardianship?” explains that a conservatorship typically lasts as long as the individual lives. The conservator may change because of death, relocation, or an inability to manage the conservator duties and responsibilities. A judge also has the power to replace the conservator, if he or she is repeatedly making poor decisions or neglecting required responsibilities.

A conservator can be wise in some situations because it lets family members know that someone is making the decisions. It also provides clear legal authority to deal with third parties. There is also a process in which a judge will approve any major decisions. However, appointing a conservator can be expensive. An experienced estate planning attorney or elder law attorney must complete court paperwork and attend court hearings. A conservatorship can also be time-consuming due to the required ongoing paperwork.

A big question is when it is appropriate to seek conservatorship. If the individual has become mentally or physically incapable of making important decisions for himself or herself, then it would be smart to have a court-appointed guardian. Moreover, if the person does not already have legal documents in place, like a living will or power of attorney, then the conservatorship would benefit in covering decisions about personal and financial matters.

Even if the individual has a power of attorney for both health care and finances, he or she might need a conservator to make decisions about his or her personal life. This can include topics, such as living arrangements and who is allowed to visit. It is not always easy to determine if an individual can make decisions, but a judge understands that a conservator is viable for those with advanced Alzheimer’s or other forms of dementia.

Families that want to set up a conservatorship need to file formal legal papers and participate in a court hearing before a judge. Evidence of the physical and mental condition of the individual requiring conservatorship must be clearly presented. The person who is the subject of the conservatorship has the opportunity to contest it. Ask an experienced estate planning or elder law attorney who specializes in conservatorships about your specific situation.

Reference: The Advocate (Jan. 25, 2021) “Alzheimer’s Q&A: What is adult guardianship?”

 

Does Sleep Help with Alzheimer’s?

The brain is the center of the nervous system and controls thought, memory, emotion, touch, motor skills, vision, respiration and every process that regulates your body. As we age, it becomes increasingly important to care for the brain — especially to prevent conditions, like Alzheimer’s and other neurodegenerative diseases.

Considerable’s recent article entitled “Deep sleep may clear the brain of Alzheimer’s toxins” explains previous studies noted that people who sleep poorly are more prone to developing Alzheimer’s. However, scientists were never clear why this was so. A 2013 study performed on mice revealed that while they slept, toxins like beta amyloid (which may contribute to Alzheimer’s disease) were washed away. Nonetheless, scientists had no answers as to the question of why.

This new study says that during sleep, electrical signals (or slow waves) appear, followed by a pulse of fluid that “washes” the brain. The scientists now found an answer to their question, presuming that this fluid is vital in removing dangerous toxins associated with Alzheimer’s.

The study suggests that people might be able to reduce their risk of Alzheimer’s, by getting high-quality sleep.

To come to this conclusion, the researchers used MRI techniques and related technologies to monitor what was going on in the brains of 11 sleeping people. In particular, they monitored cerebrospinal fluid (CSF), which is vital liquid that flows through the brain and spinal cord. They saw that during sleep, large, slow waves of CSF wash into the brain every 20 seconds. The report said that electrical activity in the neurons provokes each of these waves — the scientists compared all of this to the workings of “a very slow washing machine.”

This groundbreaking finding suggests that people may be able to decrease the risk of Alzheimer’s, by making certain that they get high-quality sleep, says William Jagust, a professor of public health and neuroscience at the University of California, Berkeley, in an interview with NPR.

Thus, quality sleep plays a critical part in brain protection, toxin elimination and neurodegenerative disease prevention.

Previous Alzheimer’s medications have targeted specific toxins that are readily present in diseased brains, such as beta amyloid. However, these drugs all failed once going into clinical trials, perhaps because they were only targeting one part of the issue.

The current study opens a new pathway for treatment that would concentrate on increasing the amount of CSF in the brain all together, instead of targeting specific toxins. That’s according to Maiken Nedergaard, a neuroscientist at the University of Rochester, who led the 2013 study on mice, told WIRED.

Speak to an experienced elder law attorney if you have questions.

Reference: Considerable (Sep. 29, 2020) “Deep sleep may clear the brain of Alzheimer’s toxins”

 

Estate Planning for a Second Marriage and Blended Family

It takes a certain kind of courage to embark on second, third or even fourth marriages, even when there are no children from prior marriages. Regardless of how many times you walk down the aisle, the recent article “Establishing assets, goals when planning for a second marriage” from the Times Herald-Record advises couples to take care of the business side of their lives before saying “I do” again.

Full disclosure of each other’s assets, overall estate planning goals and plans for protecting assets from the cost of long-term care should happen before getting married. The discussion may not be easy, but it’s necessary: are they leaving assets to each other, or to children from a prior marriage? What if one wants to leave a substantial portion of their wealth to a charitable organization?

The first step recommended with remarriage is a prenuptial or prenup, a contract that the couple signs before getting married, to clarify what happens if they should divorce and what happens on death. The prenup typically lists all of each spouses’ assets and often a “Waiver of the Right of Election,” meaning they willingly give up any inheritance rights.

If the couple does not wish to have a prenup, they can use a Postnuptial Agreement (postnup). This document has the same intent and provisions as a prenup but is signed after they are legally wed. Over time, spouses may decide to leave assets to each other through trusts, owning assets together or naming each other as beneficiaries on various assets including life insurance or investment accounts.  Without a pre-or postnup, assets will go to the surviving spouse upon death, with little or possibly nothing going to the children.

The couple should also talk about long-term care costs which can decimate a family’s finances. Plan A is to have long-term care insurance. If either of the spouses has not secured this insurance and cannot get a policy an alternate is to have their estate planning attorney create a Medicaid Asset Protection Trust (MAPT). Once assets have been inside the trust for five years for nursing home costs and two-and-a-half years for home care paid by Medicaid, they are protected from long-term care costs.  When applying for Medicaid, the assets of both spouses are at risk regardless of pre- or postnup documents.

Discuss the use of trusts with your estate planning attorney. A will conveys property but assets must go through probate, which can be costly, time-consuming and leave your assets open to court battles between heirs. Trusts avoid probate, maintain privacy and deflect family squabbles.

Creating a trust and placing the joint home and any assets including cash and investments inside the trust is a common estate planning strategy. When the first spouse dies, a co-trustee who serves with the surviving spouse can prevent the surviving spouse from changing the trust and by doing so, protect the children’s inheritance. Let’s say one of the couple suffers from dementia, remarries or is influenced by others—a new will could leave the children of the deceased spouse with nothing.

Many things can very easily go wrong in second marriages. Prior planning with an experienced estate planning attorney can protect the couple and their children and provide peace of mind for all concerned.

Reference: Times Herald-Record (Sep. 21, 2020) “Establishing assets, goals when planning for a second marriage”

 

What Can I Do to Combat Dementia?

If you’re just trying to keep your mind sharp or you’re attempting to ward off dementia, there are some things you can do to help your brain stay healthy, says the Orange County Register’s recent article entitled “Here are 3 surprising things you can do to fight dementia.”

Here are some things to keep your brain busy and fight dementia:

Study French. Comment allez-vous? OK, perhaps you haven’t attempted to learn a new language since high school. However, did you know it can help fight dementia? Researchers have studied patients with dementia and found that speaking a second language puts these patients at an advantage, regardless of their level of education. In one study, the bilingual patients in the group developed dementia an average of four and a half years after those who spoke just one language.

Get Some Exercise. Regular exercise is recommended to keep your body healthy throughout your life— and it may also help keep your mind sharp. Exercise may keep your brain healthy, by supporting vascular health and by helping release chemicals to protect your brain. You can visit a gym, go for a run, or play sports with friends to get in the exercise. There is no wrong way to be physically active. To get the benefit, shoot for 150 minutes of moderate activity a week or 75 minutes of vigorous exercise.

Make Friends. Partying with your best buds isn’t just for college students. The young at heart can and should also have an active social life. This also helps you avoid loneliness and provides you with something to do. An active social life can also be a tool in the fight against dementia. Having a large social network of friends and family has been linked to a lower risk of dementia. In fact, seniors without any social ties are more than two times as likely to develop dementia as those with ties to at least five other people. In addition, skipping a social engagement earlier in life is connected with a higher risk for dementia. Therefore, be certain that you reach out and make some friends at every stage of life.  “Strong social ties can help keep your mind sharp, and you can build these relationships no matter your circumstances,” said Amy Santo, administrator at Smith Ranch Skilled Nursing and Rehabilitation Center. “People who live in care facilities often benefit from social interactions with their caregivers and by participating in group activities with other residents.”

A person is diagnosed with dementia about every minute in the U.S. There are things you can do to help your brain stay healthy as you age. These efforts can help to delay or stave off dementia.

It doesn’t hurt to try them, and you may find you enjoy the work while you’re at it.

 

Reference: Orange County Register (June 29, 2020) “Here are 3 surprising things you can do to fight dementia”

 

What are the Alzheimer’s Signs?

Considerable’s recent article entitled “These are the 10 Alzheimer’s signs to watch out for, provides a list of symptoms but cautions that it’s important to note that every one of these 10 symptoms can be applied to other problems.  The Alzheimer’s Association explains that there are 10 warning signs and symptoms of Alzheimer’s disease of which older adults should be aware. However, it’s also important to remember that for every one of these 10 symptoms of Alzheimer’s, there is also a typical age-related change that is not indicative of Alzheimer’s disease.

If you see any of these warning signs, don’t ignore them, especially if they’re impacting your life dramatically. See your doctor.

  1. Memory loss that upsets daily life. If you’re experiencing significant memory loss that’s interrupting your daily life it could indicate Alzheimer’s disease. However, the typical age-related change is that sometimes you forget names or appointments, but you remember them later on.
  2. Trouble planning or solving problems. You have changes in your ability to develop and follow a plan or work with numbers but it’s not a sign if you make a few errors when managing finances or household bills.
  3. Difficulty finishing regular tasks. Those with Alzheimer’s can begin having issues completing familiar tasks like driving to church, recalling the rules of a favorite game, or organizing a grocery list. However, it’s a typical age-related change to occasionally require assistance using a microwave or figuring out how to record a TV show.
  4. Confusion with time or location. If you’re always losing track of dates, seasons, and the passage of time, you should see your physician and have an Alzheimer’s test. You can, however, get confused about the day of the week and later recall.
  5. Trouble understanding visual images and spatial relationships. Some people will have visual issues that indicate Alzheimer’s, which is different than the typical age-related change of your sight related to cataracts.
  6. Recent issues with words in speaking or writing. If you stop in the middle of a conversation and have no clue how to continue, it can be a sign of Alzheimer’s. The same is true if you have trouble remembering the name of a common object and frequently repeat yourself. However, it’s a typical age-related change to occasionally have difficulty finding the right word.
  7. Misplacing things and losing the ability to retrace steps. If you put things in unusual places and can’t retrace your steps to find them, or if you accuse people of stealing from you, this may indicate Alzheimer’s disease. It is, however, a typical age-related change to misplace things from time to time and retrace your steps to find them.
  8. A lack of sound judgment. If you’re often experiencing difficulty with decision making and using poor judgment, see your doctor to be tested for Alzheimer’s. However, making an occasional bad decision or mistake is normal.
  9. No interest in work or social activities. Those with Alzheimer’s might feel unable to hold or follow a conversation and as a result withdraw from work or social activities.
  10. Change in mood and personality. If you think your mood and personality are shifting, it may be a sign of Alzheimer’s. This could include confusion, suspicion, depression, fear/anxiety and becoming easily upset.

Before this disease stops you, you should seek the advice of an experienced estate planning attorney to get your affairs in order.

 

Reference:  Considerable (March 4, 2020) “These are the 10 Alzheimer’s signs to watch out for”