Category: Estate Planning (Page 1 of 3)

How a lawyer can respond to diminished capacity.

August 14, 2023 / David Russell

Confidentiality is one of the hallmarks of the attorney-client relationship. Clients expect their attorney to uphold the confidential nature of their discussions, and attorneys must adhere to a strict code of conduct to protect the public they represent. But what happens if the attorney questions the capacity of their client?

Capacity can be a complex legal doctrine, but legal capacity is required by parties of a valid contract. Moreover, standards of capacity can also vary by they type of contract entered into as well as by different states in which the contract is governed. For example, capacity to create a valid Last Will and Testament requires the one creating the will to know the general nature of their possessions and who their legal heirs are. Another standard may be applied to a more complex legal transaction.

Attorney Mark C. Palmer, Chief Counsel at the Illinois Supreme Court Commission on Professionalism, addresses how attorneys can work with clients that are demonstrating cognitive decline. In his article,
Diminished Capacity of a Client: How Should a Lawyer Respond? | Q&A, Palmer discusses three questions an attorney needs to consider:

How does a lawyer know if the client has diminished capacity?
How might this change how a lawyer represents a client?
What protective measures can the lawyer take while meeting ethical obligations?

If you have concerns about the capacity of your aging loved one to execute a valid legal contract, consult with a qualified legal professional, preferably a Certified Elder Law Attorney (CELA) as well as your loved one’s medical provider. It is these professionals’ responsibility to independently determine whether your loved ones have the required capacity to act in their best interests.

MARK C. PALMER

Mark C. Palmer is Chief Counsel at the Illinois Supreme Court Commission on Professionalism. Mark writes on civility, professionalism and future law for the Commission’s 2Civility blog and delivers statewide professionalism programming, including a lawyer mentoring program, to attorneys and law students across Illinois. Follow him @palmerlaw.

Source: Diminished Capacity of a Client: How Should a Lawyer Respond? | Q&A

Indiana Case Highlights Family Tensions in Selecting Financial Caregivers.

March 27, 2023 / drussellcfp

Most people should be able to choose a loving and honoring adult child or family member as a financial caregiver. An Indiana case highlights the importance of integrity when making the choice.

In the case of Biggs vs Renner, Terri Renner and Sherry Biggs are siblings locked in a court battle over their mother’s care, with Terri claiming that Sherry abused her position as agent under her mother’s Power of Attorney, and used their mother’s funds for her own benefit. Court records would confirm Terri’s fears.

Sherry admitted to converting her mother’s accounts first to a joint account, and then to accounts only in her name. She offered a promissory note to court as evidence that she intended to pay the money back, but the the note was largely unenforceable due to her mother’s incapacity, and no payments had been made so far. In addition, Sherry allowed her daughter and husband to live rent-free in her mother’s home and paid several thousand dollars of improvements from her mother’s accounts that did not directly benefit her mother.

Terri sought a court’s intervention to remove her sister as attorney-in-fact, and to insert a disinterested third party as guardian of their mother’s estate. The court granted Terri’s petition, but Sherry objected on appeal.

A Power of Attorney is a legal arrangement whereby one person grants authority (let’s call that person the grantor) to another person to act in their behalf as attorney-in-fact, or agent while they (the grantor) are alive but unable to act for themselves. Acting as agent under a power of attorney is a fiduciary responsibility that obligates the financial caregiver to exercise the powers granted solely for the benefit of the grantor. A financial caregiver has to keep accurate records and is prohibited from using the property of the grantor for their own purposes. Being a financial caregiver is an honorable position when conducted honorably.

Why name an adult child as financial caregiver?

It is understandable that an older person would want to name an adult child as financial caregiver on their behalf. We want to believe our own children would act honorably on our behalf, or perhaps we have regrets about our own parenting and feel guilty if we do not atone ourselves by putting them in charge. Sometimes a parent will name an estranged child in hope that the trust shown by the parent will mend a broken relationship. Parents will often do whatever it takes to keep a child close to them. However, the selection of a financial caregiver should place emphasis on the dependability and the integrity of the individual over familial connections. This may require difficult decisions and may even alienate family members, but if early and intentional discussions on the subject can be held with the appropriate family members, perhaps these kinds of conflicts can be avoided.

Note: The information above is for general information only and should not be relied upon to make legal or financial decisions Advice as to the preparation and use of Powers of Attorney should only be provided by a qualified attorney licensed in your state.

IRA Funds Protected from the Claims of Guardian

August 24, 2022 / drussellcfp

A Florida Appeals court has ruled that a special appointed guardian does not have a claim for guardianship expenses against a deceased’s IRA accounts. ( Araguel v. Bryan, (Fla. Dist. Ct. App., No. 1D20-2789, August 17, 2022).

According to the court transcript, In October of 2019, Jane Kaigler Araguel became unable to care for herself. As a result, both of her children, Patrick J. Araguel, III, and Leslie Ladon Bryan, petitioned the trial court to become her emergency temporary guardian and the guardian of her person and property. Instead of appointing either of the children, the trial court appointed a professional emergency temporary guardian. In June of 2020, Ms. Araguel died.

After Mrs. A died, the trial court approved the Guardian’s motion to use her assets — including her IRAs — to pay for the guardian’s expenses, his attorney’s fees, and other costs associated with the guardianship.

IRA Creditor Protection

IRA’s are considered contract property, meaning that the owner of the IRA contracts with an IRA Custodian, to hold and invest the IRA funds, and to pay the funds directly to the contract’s named beneficiary(ies) upon the death of the IRA owner. As such, IRA assets do not pass through the owner’s Last Will and Testament, unless the owner’s estate is listed as the IRA beneficiary.

Protection of IRAs from the claims of creditors depends on the state of residence of the IRA owner. Most states have adopted some kind of creditor protection for IRA assets similar to the protection available for qualified retirement plans (ie. 401k, Profit Sharing, Pension Plans, etc.) that are governed by a Federal Law under the acronym ERISA. Simply stated, these assets are excluded from creditor claims such as bankruptcy and litigant claims, except for fraudulent transfers or a divorcing spouse. For a more detailed discussion about IRA creditor protection, click here.

Back to the Case

Mrs. A’s son appealed the trial court’s ruling, arguing that the IRA contracts were not subject to possession and management by the guardian upon Mrs. A’s death and that the death proceeds should have been immediately delivered over to the IRA beneficiaries. Furthermore, he argued that the IRA’s were protected from creditor claims under Florida law, and should therefore not be available to the Guardian for expenses incurred by the Guardian.

After a discussion of the specific meaning of words contained in the various Florida statutes, the court applied a “plain meaning of the terms ‘claim’ and ‘creditor,’ to rule in favor of the Plaintiff, Mrs. A’s son, and reversed the lower court’s decision. To read the full court transcript, click here.

Key Takeaways

A properly executed Durable Power of Attorney granted to one or both of Mrs. A’s sons could have avoided a court-appointed guardianship and allowed either or both of them to manage her assets upon her incapacity.
A revocable living trust that owned Mrs. A’s assets could have been used along with a Durable Power of Attorney to ensure continuity of the management of her financial affairs upon her incapacity.
IRA’s often represent a significant percentage of an individual’s estate, yet what happens to them upon the owner’s death is controlled by a single piece of paper on file with the IRA Custodian, not the owner’s Last Will and Testament. Beneficiary forms should be regularly reviewed.
Seek the advice of a qualified estate attorney when drafting any of these legal arrangements.

Most Have No Plan for Long Term Care

August 15, 2022 / drussellcfp

HGC, an Aging-In-Place research and product development company based in Connecticut partnered with non-profit Arctos Foundation to survey Americans’ preparedness for long term care.

Key findings:

70% of respondents have no advance directive in place, and just one in ten have l ong-term care insurance.

Most respondents have not spoken with a family member or loved one about wishes for Long Term Care.

Those with a spouse or partner are more likely to expect a need for long-term care services and supports, but are no more likely to have long-term care insurance in place.

Source: Independent Research | HCG Secure

To help families understand and discuss the issues surrounding planning for long term care, we have two excellent flipbooks on the topic of Essential Estate Planning, and Understanding Long Term Care.

Suspension imposed after appeals judge is accused of making himself a beneficiary of ex-client’s will

January 15, 2021 / drussellcfp

The Georgia Supreme Court has suspended a state appeals judge with pay during an ethics investigation.

The court suspended the judge, Christian Coomer, on Wednesday, Law360 reports.Coomer is accused of making himself a beneficiary and his wife the executor when drafting wills for a then-client, according to Law.com, Law360 and the Daily Tribune News.

Coomer is also accused of drafting an irrevocable living trust for the client that designated Coomer as the trustee and beneficiary, with the power to transfer funds to himself while the client was still alive, according to the Dec. 28 charges by the Georgia Judicial Qualifications Commission.

Source: Suspension imposed after appeals judge is accused of making himself a beneficiary of ex-client’s will

Can a Trustee be removed for being a Pain in the backside?

August 19, 2020 / drussellcfp

In this episode of the case files, I discuss the Texas case of Ramirez vs. Rodriguez, et. al., a case that involves four sibling co-trustees and the attempt by three of them to remove their trouble-making brother because of his hostile actions. Is being a royal pain in the derriere enough to remove a trustee from office.

This case reminds me of a scene from an episode of The Marvelous Mrs. Maisel, an Amazon original series that I have featured in the video.

Both this case and the scene from the series drive home the point that sometimes mixing family and money can be an explosive combination.

Choose your trustees carefully!

Are your aging parents prone to hiding cash around the house? Be aware of the pitfalls.

August 12, 2020 / drussellcfp

Texas Attorney Virginia Hammerle writes about the dangers of leaving cash hidden around the house or elsewhere as inheritances to be discovered after the owner’s death.

Your cash may never be found. Your house and/or its contents could burn up, get sold in an estate sale or be blown apart by a tornado. The dog could eat it. It could turn into a block of moldy and unrecognizable paper.

When you are doing your estate planning, do not forget to make a plan for distributing your cash. Here’s why you should have a plan in place.

Source: Dash for Cash – Informal Funding of Inheritance Has Hidden Dangers

American Bankers Association Releases the “Mind Your Loved Ones” App

May 5, 2020 / drussellcfp

Few things sound as bad as being in the hospital alone. Healthcare workers have become surrogate mothers, fathers, friends, and children, in this new-normal of self-sequestered living. To exacerbate matters, hospitals are often in need of critical medical documents such as emergency contacts, healthcare directives, DNR (Do Not Resuscitate) Orders and the like.

To help with the latter problem, the American Bankers Association (ABA) has released its Mind On Your Loved Ones App that allows family members to store this critical information on their smart phone or tablet, and share it with medical professionals and hospitals if they cannot be present.

Having this information in the hands of those we’ve entrusted to carry out our wishes if we’re unable to speak for ourselves is important. Even more so now that we cannot be assured that our loved ones will be at our side if current events prevent it.

Mind Your Loved Ones, known as MYLO, is a mobile app that gives individuals the ability to store their own and their loved one’s critical medical information, health care directives, and other related data on their Apple or Android phones, iPads® or tablets. ABA members can download the app at a discounted price.

Source: MYLO – Mind Your Loved Ones

Do you really want to be an executor?

March 5, 2020 / drussellcfp

You may find that you have been named as executor (executrix if you are female) of your parents’ will. After reading the duties below, you may not want the job. It is a tiring, time-consuming, and frequently a thankless responsibility that you may want to resign from– and certainly have the right to do so.

Some of the more important duties and responsibilities of being an executor include:

Find the latest will and read it.
File a petition with the court to probate the will.
Assemble all the decedent’s assets.
Take possession of safe deposit box contents.
Consult with banks and savings and loans in the area to find all accounts of the deceased. Also check for cash and other valuables hidden around the home.
Transfer all securities to your name (as executor) and continue to collect dividends and interest on behalf of the heirs of the deceased.
Find, inventory and protect household and personal effects and other personal property.
Collect all life insurance proceeds payable to the estate.
Find and inventory all real estate deeds, mortgages, leases and tax information. Provide immediate management for rental properties.
Arrange ancillary administration for out-of-state property.
Collect monies owed the deceased and check interests in estates of other deceased persons.
Find and safeguard business interests, valuables, personal property, important papers, the residence, etc.
Inventory all assets and arrange for appraisal of those for which it is appropriate.
Determine liquidity needs. Assemble bookkeeping records. Review investment portfolio. Sell appropriate assets.
Pay valid claims against the estate. Reject improper claims and defend the estate, if necessary.
Pay state and federal taxes due.
File income tax returns for the decedent and the estate.
Determine whether the estate qualifies for special use valuation under IRC Sec. 2032A, the qualified family-owned business interest deduction under IRC Sec. 2057 or deferral of estate taxes under IRC Sees. 6161 or 6166.
If the surviving spouse is not a U.S. citizen, consider a qualified domestic trust to defer the payment of federal estate taxes.
File federal estate tax return and state death and/or inheritance tax return.
Prepare statement of all receipts and disbursements. Pay attorney’s fees and executor’s commissions. Assist the attorney in defending the estate, if necessary.
Distribute specific bequests and the residue; obtain tax releases and receipts as directed by the court.
Establish a testamentary trust (or pour over into a living trust), where appropriate.

If you find the task to be too over-whelming, talk to your parents about it if you can. Examine their wills to see if anyone is named as an alternate and discuss these duties with that person. You may even find that the person(s) named as executor are no longer living; or they may have named a bank trust department with which they no longer do business. If you feel it is a duty that you can and want to do, be sure to contact a qualified lawyer in your parents’ state of residence to help you in the process.

5 Reasons I Regret Filing A Will Contest

February 27, 2020 / drussellcfp

When a family member has died, it can add insult to injury to learn that you were cut out of the will. Contesting the will is likely an initial thought. We talked to people who have filed will contests, and came up with the top 5 reasons I regret filing a will contest. The reasons are:

I was not honest about my relationship with the decedent.
A will contest is more stressful than I realized.
I was not realistic about decedent’s mental and physical condition.
I did not have a clear idea of what I was fighting over.
I did not realize how much a will contest would cost.

For a breakdown of each of these five reasons, follow the source below.

Source: 5 Reasons I Regret Filing A Will Contest | Probate Stars