Showing posts with label power of attorney. Show all posts
Showing posts with label power of attorney. Show all posts

May 12, 2013

Happy Mother's Day to all!

In this photo, circa 1940s, that's my beloved late mother Beatrice Karp at right. At left is her younger sister, my dear Aunt Pearl, who has always been like a mother to my brothers and me. Pearl is a dynamo still and I feel lucky to have her in my life.

This Mother's Day, I suggest giving your mother- or any woman you love like a mother - a valuable gift that is often overlooked. No, not flowers, dinner or candy - those are nice, but you can figure that out on your own. The gift I'm recommending is helping your mother get her files and paperwork in order. Locating and organizing years of records is a formidable challenge for anyone. If your mom is elderly, even more so.

Getting organized is important because it is an essential step in developing a good legal plan to deal with whatever the future holds. That plan should include making sure someone can make her medical decisions and financial affairs if she cannot with a Health Care Power of Attorney and Durable Power of Attorney, respectively; making plans to deal with the expense of long-term nursing care should she ever need it; and making sure the people of her choice get whatever she leaves behind in her estate

All this preparation means that your mother will be able to stop worrying about the "what ifs." And really, can you think of any better gift than a peaceful mind?

If Mother agrees, here's a partial list of items that you can help her locate and organize:
  1. Investment, bank accounts for checking, CD's, brokerage statements.
  2. Social Security information.
  3. Insurance policies: life insurance, auto insurance, homeowners insurance.
  4. Medicare information and statements.
  5. Tax documents.
  6. List of credit cards.
  7. Utility bills.
  8. Important documents like birth certificates, naturalization papers, death certificates, etc.
  9. Deeds for property, registration papers for cars.
  10. Estate planning documents: wills, trusts, power of attorney, health care power of attorney.
  11. Mortgage and loan papers.
  12. Retirement accounts, pension, etc.
  13. List of all her health care providers.
Helping Mom with this process can be a wonderful and lasting gift to her - and to you, ultimately - provided you approach it with the utmost sensitivity. Happy Mother's Day.

Apr 3, 2012

Astor estate finally settles

Socialite and philanthropist Brooke Astor died at age 105 in 2007, leaving behind a $200 million estate, a Will executed in 2002, a raft of later codicils, and a pitched legal battle over who should get her fortune. On March 28, 2012, the Westchester County, NY Surrogate Court brought the saga to an end.

The Court threw out Astor's several post-2002 codicils. These were codicils that Astor signed while already mentally incompetent, at the behest of her son and agent under her Power of Attorney, Anthony Marshall, giving Marshall a bigger cut of her fortune. In 2009, at age 85, Marshall was convicted of  stealing from his elderly mother, abusing his authority as her Power of Attorney, and persuading his mother to make changes to her Will that greatly benefited him. Marshall, now 87, is still appealing the conviction.

The March 28 ruling leaves most of the estate to the New York charities and institutions Astor loved and supported during her lifetime, among them the Metropolitan Museum of Art and Carnegie Hall. The ruling leaves Marshall with $14.5 million, but with what he owes in legal fees and the cost of his still-pending criminal appeal, he walks away with "just" $3 million. I say "just" not because it isn't a lot of money - it surely is for most of us - but because it's a pittance compared to the $70 million he would have inherited if he had not tried to exploit his elderly mother for more. 

Jan 8, 2012

Don't put your family (or yourself) through a guardianship procedure

It's a phone call we get several times a month. The caller's elderly parent does not appear to be capable of managing his own money. Maybe Dad is quickly depleting his savings on internet get-rich-quick schemes and can no longer pay the mortgage. Or Mom's dementia requires that she reside in a nursing home, but the children cannot take steps to preserve her assets because her accounts are in her name alone.

If your parents never made advance plans for someone to manage their financial affairs, and they are now incompetent to create such plans, your options boil down to just one: Guardianship. Petitioning the court to appoint a guardian for your relative is a process that is as time consuming as it is expensive. And it is often traumatizing for parent and family. After a petition is filed, two professionals and a third party are appointed by the court to examine the alleged incapacitated person. Then a hearing is held at which the court decides whether the person is totally or partially incapacitated, a guardian is appointed and duties outlined. Of course, the person who is the subject of the guardianship must also have an attorney to represent his/her interests. 

You can spare your family - and yourself - this agonizing process by creating, in advance, a legally sound Durable Power of Attorney for Property. This document will allow someone to step into your shoes and manage your financial affairs if in fact you become incapacitated. Too many people neglect this vital planning, because they are not willing to deal with the prospect of disability, or they think they can always deal with it at a later time. This kind of denial and procrastination does your family no favors. 

Sep 26, 2011

New Florida Durable Power of Attorney Law Effective Oct. 1, 2011

Let me start off by assuring Florida residents who have a currently valid Durable Power of Attorney signed before October 1: Your Power of Attorney will be valid even after Oct. 1. You do not need to do anything, You do not need to change your current document. Your Power of Attorney will continue to be honored after October 1.

However, new rules apply to any Florida Durable Power of Attorney signed on or after October 1.

The Durable Power of Attorney (DPOA) gives someone (an agent) the authority to manage the financial affairs of the signer of the  DPOA (the principal). Some of the new regulations that apply to a Florida Durable Power of Attorney signed on or after Oct. 1, 2011:

Certain sweeping powers granted to an agent - so-called "superpowers" - require special treatment. One example of a superpower is the ability to make gifts from the principal's funds. To grant an agent the ability to exercise a superpower, that superpower must be specifically mentioned in the DPOA, and that section of the document physically initialed by the principal.

Any Durable Power of Attorney signed on and after Oct. 1, 2011 will be immediate, not springing. In other words, the agent's authority to act will not be contingent upon the principal's incapacity. The agent will have the authority to act as soon as the instrument is signed. 

The new law officially recognizes that backup agents may be included in the Durable Power of Attorney (even though most people routinely included back-ups in their DPOA even before the change in the statute). Moreover, if  the principal desires that co-agents act only with the knowledge and consent of the others, the DPOA must specifically say so. If this provision is not included in the DPOA, it is assumed that each co-agent may act independently, without the knowledge or consent of the others.

The new law also states that for a Durable Power of Attorney signed on or after Oct. 1, a photocopy or electronic copy  - not only the original document -- will be honored by financial institutions. This added convenience for principal and agent comes with some risk, though, particularly with regard to revocation. Even if the principal destroys the original documents, an agent can present a copy to a financial institutions and exercise powers the principal no longer wants him to have. To revoke a DPOA, it's advisable for the principal to take additional steps in addition to destroying the original, such as recording the revocation with the Clerk of the Court in Public Records; sending copies of the revocation to  all financial institutions; and notifying all agents named in the revoked DPOA of the revocation.

Our Florida Elder Law and Estate Planning Lawyers have revised our Florida Durable Power of Attorney to comply with the new laws effective Oct. 1.  Do not try to adapt off-the-shelf or off-the-internet forms! The DPOA is a powerful  legal instrument and must be built around your individual goals and family circumstances. Mistakes can be costly. Consult with The Karp Law Firm.

Sep 4, 2011

Rhinestone Cowboy not riding off into the sunset

Glen Campbell, the Grammy Award-winning writer/performer of the hit song Rhinestone Cowboy, is not riding off into the sunset. Despite his recent diagnosis of Alzheimer's Disease, the 75-year-old musician intends to perform as long as he can. He just released an album and has embarked on a farewell tour. Campbell is just one of many celebrities who have made their diagnosis public. What makes Campbell him unique is his plan to remain on the public stage. He makes no apologies for his lapses, laughing when he told a CBS interviewer that he was not sure of his age.

What is not unique is the years of creeping symptoms that elapsed before Campbell's diagnosis. It can be hard to make a definitive diagnosis, since most people become a bit forgetful with age. But beyond that, most people  tend to sweep their symptoms under the rug. According to the Alzheimer's Association, the average person has about eight years to live after symptoms become noticeable to others. That makes early detection very important. The earlier the diagnosis, the sooner critical medications can be administered; the sooner patient and family can adjust; and the sooner vital legal planning can be done.

Anyone diagnosed with Alzheimer's or another dementia needs to put an effective estate plan in place without delay. If there is an existing estate plan, it should be reviewed. If the patient has a spouse, he/she must also create or review his own estate plan, since in all likelihood the spouse's plan will have named the patient as Personal Representative, Trustee, Durable Power of Attorney agent or Health Care Surrogate.

The estate plan should include:

A Durable Power of Attorney for Property, which will empower one or more persons to handle the patient's finances when he/she no longer can.

A Health Care Power of Attorney, giving someone else the right to make the individual's medical decisions.

A Living Will, specifying what kinds of life-prolonging treatments the patient wants or does not want.

A Will and.or Living Trust.

Contact our elder law/estate planning attorneys to examine your estate planning options.

Jan 20, 2011

Should I sign mom's nursing home admission agreement?

Admitting a parent or other loved one into a nursing home is bound to be an emotional, even traumatic experience for everyone involved. But keep your wits about you. You're going to need to think clearly when you are faced with the nursing home's admission agreement.

Most nursing homes in Florida and elsewhere ask you to sign your loved one's admission agreement. Politely refuse. Specifically, do not sign the section requesting the signature of "responsible party." If you do, you could be on the hook for any costs not covered by Medicare, Medicaid or other insurance.

If you are the patient’s Attorney-in-Fact under his Durable Power of Attorney, you may sign on behalf of the patient - but do NOT sign as the responsible party. If at all possible, the patient himself should sign the agreement, although obviously this is not always possible. We know people who have signed for their relatives, and weeks and months later received bills in the thousands of dollars for unpaid expenses! Don't let this happen to you.

Dec 6, 2010

Poor money decisions may be clue to Alzheimer's diagnosis

A British university recently announced it is getting closer to an early screening test for Alzheimer's. The noninvasive test involves examining lesions on the memory hub of the brain.  Diagnosing Alzheimer's today is a patchwork affair at best.

In our elder law practice, we have observed that the disease sometimes manifests itself early in poor, even bizarre financial decisions. Several years ago we had one longtime client who began responding to every mail solicitation and tv shopping offer. She lived alone and had no relatives, so it took some time for anyone to realize this was occurring.

Unfortunately, diagnosis is not the same thing as cure, or prevention. At present there is no cure, nor a surefire way to prevent it. However, you can take steps to keep a person who has, or is developing Alzheimer's, safe from his own fiscal decisions. Everyone should have a Durable Power of Attorney so that if the time ever comes, someone else can step into your shoes and manage your financial affairs. Without a Durable Power of Attorney, a costly guardianship may have to be commenced.

Click below to view one family's story. (There is an advertisement before the story begins)

Jun 16, 2010

When The Diagnosis is Alzheimer's: Legal Steps to Take

My staff and I had the privilege of attending the Alzheimer's Educational Conference June 3-4 in Palm Beach. Our attorneys and case manager talked with many caregivers, policymakers and professionals. The Palm Beach County Convention Center was filled to capacity for the event -- which gives you an idea of just how serious this epidemic is. Here are the hard facts: From 2000 to 2006, while deaths from diseases like heart disease and cancer declined, deaths from Alzheimer's Disease actually increased 46%.

If you or another family member have been diagnosed with the disease, my advice is: don't panic. Easy to say, I know. You are not alone! There are many resources to assist you, some of which appear at the end of this post. On the other hand, don't procrastinate! The journey ahead is challenging, and the better your planning, the more energy you and your family will have to take advantage of quality time. I always tell my clients that in the case of Alzheimer's Disease, time is not a friend. Many of the necessary legal and financial steps can only be taken while the patient remains competent. Here are some of the plans you should press ahead with before too much time passes:

The patient should establish a health care power of attorney, authorizing one or more persons to make his/her medical decisions if he/she can no longer do so. A durable power of attorney should also be established, which will empower one or more persons to handle the patient's financial and business affairs. If the patient already possesses these documents, they should be reviewed without delay to make sure they are in sync with your current circumstances and comply with any changes in the law that have occurred since they were drafted. Because no one knows how the future will play out, the patient may also wish to create a living will, specifying what kind of life-prolonging treatment he does/does not prefer if he is ever in a persistent vegetative state or end-stage condition. A Last Will and Testament should be drafted. In some cases, a revocable trust or an irrevocable trust may also be appropriate estate planning vehicles.

If you are the spouse of someone diagnosed with Alzheimer's Disease, it's easy to forget about your own needs - health-wise and legally, too. Have a certified elder law attorney examine your estate planning documents as well as your spouse's documents. Many of my clients are so concerned about their ill husband or wife that they forget they've named their spouse to serve as their own decision-makers. Obviously, those kinds of arrangements will have to be modifed.

Your spouse might eventually need long-term care. If you have long-term care insurance, all the better. If not, you may want to start thinking about asset protection strategies that will allow you to tap into Florida Medicaid benefits and/or Veterans benefits. Again, the advice of a certified Elder Law Attorney is invaluable at this time. 

You are not alone! In addition to your attorney, there are many community resources to guide you on your journey, including the Alzheimer's Association the Florida Department of Elder Affairs, and Alzheimer's Community Care.

May 2, 2010

Live Long and Prosper... and Plan!

Many callers to my law firm start the conversation by saying, I just need a simple will. That statement, plus an article I recently saw about countries with longest lifespans (Iceland for men, Cyprus for women) got me to thinking...  As far as estate planning goes, most Americans are stuck in a kind of 1950s-era thinking. Sure, it remains true that we are all going to die. But society, medicine and the law have changed dramatically. The way we live, and how long we live -- even how we approach death - have all changed. And with those changes come compelling reasons for Americans to do things differently when they plan their estates.

Life used to be simple. People worked for the same company for decades. They had guaranteed pensions. Medical expenses were more manageable. Divorce was rare and remarriages rarer still, for parents and children alike. Most people were not invested in the stock market.  
But, there was a tradeoff. Life was simple, but it was also short. Retirement didn't last long, so people didn't worry as much about having sufficient savings to last a lifetime. Long periods of incapacity were unusual.

Today we're living longer than ever. No complaints there, but more years present more challenges... challenges our grandparents didn't have to face.  Elder law addresses not only leaving a legacy, but living your life. As an elder law attorney, I do traditional estate planning - but the priority is life, not death.

Your grandparents' estate plan doesn't fit today's realities.If you think all you need is a simple will, I suggest you think further. A Last Will and Testament is a death instrument only. Have you thought about your life planning? What about establishing a Durable Power of Attorney and a Health Care Power of Attorney, so someone can make your business and medical decisions if you are incapacitated, without court interference and possible guardianship? And since there's no guarantee all our extra years will be healthy ones, have you taken steps to protect yourself against the crushing costs of long-term nursing care? Have you purchased long-term care insurance, or thought about planning in advance if you ever need to tap into Veterans benefits or Medicaid benefits? Have you taken the prudent legal and financial steps to protect your assets as much as possible? 

As they stay on Star Trek, Live long and prosper. I say we change that slogan to reflect our new, longer lives:  Live long and prosper... and plan!

Jan 6, 2010

Your 18-year-old "adult"

So your child has turned 18! That's a big step enroute to adulthood. But unless your child is one of the rare few, she hasn't quite arrived just yet. Not many 18-year-olds are full-fledged adults, emotionally or economically. But legally? Well, that's another matter. In the eyes of the law, your child is considered an adult in many respects.

For example, once your child turns 18, you no longer have automatic access to his/her medical records. This could make it tough for you to get information or to assist your child in the event he encounters a medical emergency.

As a loving parent of a teenager, you may think it's outrageous that a physician would not readily share such information with you. However, in our litigious society, where medical providers are required to dot every “i” and cross every “t” to comply with complex federal privacy laws, it can and does happen.

If your child is over 18, you may want to suggest that he establish a health care surrogate (aka health care power of attorney) authorizing you to make his medical decisions if he cannot, and/or receive information from his medical providers . This document would allow you to assist him in the event he runs into a medical problem. The document should have specific provisions for the release of confidential HIPAA information. Avoid using store-bought or on-line forms!

Oct 27, 2009

Financial Abuse Begins at Home: Protecting Yourself AND Your Adult Children

Financial abuse of the elderly usually begins at home, according to a recent report from the MetLife Mature Market Institute. Most of us have trustworthy and well-meaning adult children. But when elder financial abuse does occur, it's a family member or caregiver who commits the crime 55% of the time. And sorry, guys, but the study also reveals this statistic: Sons are 2.5 times more likely to take advantage of a parent than daughters are.

The national uptick in elder financial abuse is doubtless related to the economic downturn. Other factors include the growing population of older people, and internet technology that can make a person's financial information more vulnerable to predators.

From the estate planning angle, one of the best ways to protect yourself from this crime is to create a checks and balances system; i.e., appoint more than one individual to key positions. For example, appoint two or more co-agents under your Durable Power of Attorney, and two or more trustees to co-manage your affairs if you become disabled. You might also want to appoint a third-party trustee like a bank trust department, or a trusted C.P.A. or attorney, to serve along with family members.

On the other hand, you may want your kids to take your money. For example, certain estate planning strategies for securing your maximum rightful Medicaid benefits or other governmental benefits entail your legitimately transferring assets to adult children. In such cases, you should spell out your desires in no uncertain terms in your legal documents, including your trust and Durable Power of Attorney. And you should do so while there can be no question that you are mentally competent. Taking these steps will help ensure that your children are never accused of criminal wrongdoing or breaching their fiduciary duty.

To learn more about how to prevent financial abuse of the elderly, log on to the National Center for Elder Abuse here.

Sep 30, 2009

Will Florida Follow New York POA Law?

Taking aim at financial abuse of the elderly, New York State has beefed up its Durable Power of Attorney law. Under the new statute, the designated agent is required to acknowledge his/her responsibilities by signing the Durable Power of Attorney along with the principal, and having his signature notarized. The new law also gives the creator the right to appoint a monitor - for example, a trusted financial advisor - to oversee the agent's activities. If the new law meets with success in New York, I would not be surprised if Florida and other states follow suit.

Aug 26, 2009

Your HIPAA Booster Shot

Consider it a vaccine for your medical privacy. The 1996 Health Insurance Portability and Accountability Act requires your medical providers to take steps to protect the confidentiality of your medical records. Now, you're getting a booster, thanks to the U.S. Department of Health's new rule requiring health care providers who do not encrypt their records to promptly notify you of any breach of confidentiality.

All vaccines have the potential for side effects, and HIPAA is no exception: Its passage has had a significant impact on estate planning, too. Here's why:

Your Health Care Power of Attorney allows one or more persons to make medical decisions on your behalf if you are unable to make them yourself. Obviously, to make informed decisions, your agent need to be able to communicate with your physicians. That's why your Health Care Power of Attorney should include HIPAA language. I recommend that this language be part of the document even if you've signed a privacy release statement with your primary physician, since your health care power of attorney applies to all doctors, hospitals, etc., from whom you may receive treatment, now and in the future.

And don't neglect your revocable trust; it too needs HIPAA language to be effective. The inclusion of HIPAA-specific language will authorize your doctors and other medical providers to talk with your successor trustee(s). Your successor trustee can then request certification that you are in fact incapacitated and thus, seamlessly step into your shoes and handle your affairs.

If your documents predate HIPAA, see a certifed elder law estate planning attorney about creating documents that include HIPAA-specific language. Even if your documents were drafted after 1996, you should have them checked; in my experience, not all attorneys who drafted documents after 1996 included HIPAA language.

Aug 18, 2009

The Health Care Reform We Should All Enact

In the ongoing health care debate, death has taken on... well, a life of its own. One of the more contentious proposals involves Medicare paying for physicians to talk with patients about end-of-life medical treatment options. Geriatric physicians - those most familiar with the concerns of the elderly -- endorse the plan, according to a recent article in Time Magazine. They assert that these counseling sessions will encourage people to open up with physicians and family about their wishes for end-of-life care, with benefits for all concerned.
In my elder law practice, I see first-hand how difficult it is for people to discuss -- sometimes even to think about -- their desires for end-of-life care. Even loving relatives can make the task tough. As one adult son said to his father recently in my office, "C'mon, dad, let's not talk about this morbid're not going anywhere!"

The net result of all this silence? Too many people put off creating legal documents necessary to keep control over their own medical destiny - for example, a living will and health care power of attorney. Without these documents to guide them, family members are in the dark when a crisis arises. Since no one really knows what the patient's preferences are, arguments can ensue over what to do. This is not the kind of legacy most people wish to leave behind.

Sharing your preferences for end of life medical treatment and creating advance medical directives is a gift to your loved ones. In my view, it's also a gift to yourself; for once you get past talking about death, you can go on living life as fully as possible. Whatever comes of the health care reform bill, this is one reform we should all enact in our own lives.

May 19, 2009

While we wait for a cure...

Kudos to Home Box Office and the Alzheimer's Association for bringing us The Alzheimer's Project. This thoughtful and timely program explores the disease, its causes, potential cures, its impact on families. You can't see it and not be touched.

The program really gives you an idea of the massive scope of the problem. In South Florida, where my elder law firm is based, the local Alzheimer's Association estimates that as many as 200,000 people have the disease - and that's not counting all the family members and caregivers also affected. Nationwide, someone develops the disease every 70 SECONDS. The program does a commendable job of examining potential medical breakthroughs in the pipeline. It's altogether possible we'll have a cure in the not-too-distant future. But right now, the hard reality is that there is no cure.

Individuals diagnosed with Alzheimer's Disease and their loved ones must get legal advice, not just medical advice. Alzheimer's Disease impacts every area of life, and has major legal and financial ramifications. My advice to these individuals and their loved ones is always to prepare, prepare, prepare. The disease is progressive, so the sooner the preparations begin, the more likely the patient/client will be competent enough to participate in the planning process. This is not a time to procrastinate!

Whenever there is a diagnosis of Alzheimer's Disease, there is the possibility that the individual may require long-term care sometime in the future. No one can say when it may be needed or for how long, but one thing is sure: Long-term care costs are beyond the reach of most families. If the patient has long-term care insurance, great. If not, it's time to sit down with a Certified Elder Law Attorney to discuss strategies for preserving assets. Florida Medicaid benefits and/or Veterans benefits may be available.

At a minimum, the patient should have a legally sound Power of Attorney for Health Care. This document will empower one or more individuals to make medical decisions for the patient when the time comes that he is no longer able to do so. A Property Power of Attorney, also known as a Durable Power of Attorney, should also be created, so someone can handle the individual's business affairs in the future.

And let's not forget the spouse of the patient. I often see spouses who are so caught up in their affected partner's planning that they forget their own: For example, a wife whose husband has advanced dementia but who is still named as her Personal Representative in her last will and testament. Or a husband whose health care documents empower his now cognitively impaired wife to make his medical decisions. This is a time for both spouses to examine their life plans and their estate plans, and to get ready for what's ahead.

As an attorney I can't cure the disease. I dearly wish I could. But by helping my clients with their financial and legal planning, I'm gratified to know I'm helping make a difficult journey just a little more bearable.
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