Category: Family Relationships (Page 4 of 5)

I’m Trustee For My Parents’ Trust – Now What?

September 9, 2019 / drussellcfp

So, your parents have a trust, and you’ve just found out that you are the trustee. Do you thank them or did they reward you with the booby prize? A trustee is held to a high standard of accountability and must act in accordance with an established standard of care as outlined below. To fail in one or more of these – called a breach of fiduciary duty – is to invite litigation and sometimes results in broken family relationships where a family member is also the trustee. Professional trustees, like banks with trust departments, or corporate trustees will be given very little leeway if they fail in any of these duties, but untrained family members or individuals who find themselves in this unenviable position are often not excused for lack of knowledge either.

Duty of loyalty. A trustee has a fundamental duty to administer a trust solely in the interests of the beneficiaries. A trustee must not engage in acts of self‐dealing.
Duty of administration. The trustee must administer the trust in accordance with its terms, purposes, and the interests of the beneficiaries. A trustee must act prudently in the administration of a trust and exercise reasonable care, skill, and caution, as well as properly account for receipts and disbursements between principal and income.
Duty to control and protect trust property. The trustee must take reasonable steps to take control of and protect the trust property.
Duty to keep property separate and maintain adequate records. A trustee must keep trust property separate from the trustee’s property and keep and render clear and accurate records with respect to the administration of the trust.
Duty of impartiality. If a trust has two or more beneficiaries, the trustee must act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests.
Duty to enforce and defend claims. A trustee must take reasonable steps to enforce claims of the trust and to defend claims against the trust.
Duly to inform and report. A trustee must keep qualified trust beneficiaries reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.
Duty of prudent investment. A trustee who invests and manages trust property has a duty to “invest and manage trust property as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.

Much like the position of Executor, the role of Trustee is not to be accepted lightly and can often be a lifetime of responsibility. If you are not comfortable serving in this capacity, discuss this with your parents now so that alternate plans can be made.

Trusts are excellent vehicles for protecting an estate from creditors, transfer taxes, or misbehaving heirs. Their operation may be simple or complex, but it is incumbent upon you to talk to your parents about their trusts, and especially who the parties are if you are in the role of financial caregiver.

Source: American Bankers’ Association.

Why Aren’t More Women Working? They’re Caring for Parents

September 5, 2019 / drussellcfp

A recent New York Times article profiles the lives of women who have no other option than to drop out of the work-force to care for an aging parent, at significant cost to the economy.

The burden of care for aging relatives is reshaping the lives of millions of others. About 15 percent of women and 13 percent of men 25 to 54 years old spend time caring for an older relative, according to the Labor Department. Among those 55 to 64, the share rises to one in five Americans. And 20 percent of these caregivers also have children at home.

Yes Virginia…This is a Holiday Inn

September 4, 2019 / drussellcfp

According to a study released by the U.S. Census Bureau, more Millennials are living with their parents more than in any other living arrangement, with one in three 18-34-year-olds living at home. Add to this the fact that according to The National Alliance for Caregiving, about 34.2 million Americans have provided unpaid care to an adult age 50 or older in the last 12 months, and you have the classic description of the sandwich generation.

Among the findings from the Census Bureau study:

In the 1970s, 8 in 10 people married by the time they turned 30. Today, not until the age of 45 have 8 in 10 people married.
In 2005, the majority of young adults lived independently in their own household, which was the predominant living arrangement in 35 states. A decade later, by 2015, the number of states where the majority of young people lived independently fell to just six.
More young men are falling to the bottom of the income ladder. In 1975, only 25 percent of men, aged 25 to 34, had incomes of less than $30,000 per year. By 2016, that share rose to 41 percent of young men. (Incomes for both years are in 2015 dollars.)
Between 1975 and 2016, the share of young women who were homemakers fell from 43 percent to 14 percent of all women aged 25 to 34.

And the one that really sticks out to me…

Of young people living in their parents’ home, 1 in 4 are idle, that is they neither go to school nor work. This figure represents about 2.2 million 25- to 34-year-olds.

Reminds me of this classic commercial.

Brady Bunch Estate Planning: Balancing the Duty of Loyalty

September 3, 2019 / drussellcfp

It is a well established principle of trust law that trustees are fiduciaries who owe specific duties to the beneficiaries of a trust. These duties can be grouped into duties of loyalty and duties of care.

But what if a trust has beneficiaries with adverse interests to one another? It is not uncommon for a trust to have two kinds of beneficiaries – a current beneficiary as well as a remainder beneficiary. That is, the current beneficiary may have rights to the income from the trust, and perhaps even discretionary rights to the trust’s assets (also known as the trust principal or corpus); whereas the remainder beneficiary may have rights or equitable interest in what is left in the trust (the remainder) after a period of years or upon the death of the current beneficiary. These adverse interests can test the mettle of most individual or family trustees as both beneficiaries are owed duties of loyalty and care.

Suppose Mike Brady created a trust to take effect at his death. His trust includes the following (summarized) instructions:

At my death, my trustee shall pay to my surviving spouse the net income from my trust for as long as my spouse shall live.
In addition to the net income, my trustee may also pay to my surviving spouse from the trust’s principal, as much as my trustee shall deem necessary to maintain my spouse in [her] accustomed standard of living.
Upon my spouse’s death, my trustee shall distribute my trust to my surviving children (Greg Brady, Peter Brady, and Bobby Brady) in equal shares.

Now supposed that when Mike Brady dies, Carol Brady is appointed to serve as trustee of Mike’s trust. Or, perhaps Mike’s oldest son, Greg, is appointed as trustee. This is not only permitted but done frequently, presumably to avoid paying a professional trustee. The conflicts to the Duty of Loyalty are obvious.

For example, if Carol Brady is trustee, it stands to reason that she would want to maximize current income from the trust while minimizing principal growth. Likewise, if Greg is trustee, he would want to maximize his ultimate share of the trust by investing for growth rather than income. In addition, asking either party to objectively define “accustomed standard of living” puts them both in awkward, if not conflicting positions. Should Alice’s services as a live-in housekeeper continue to be paid after everyone has moved on? Carol could certainly argue that the expense met the accustomed standard of living test, but would Greg require Carol to pay for it herself, or would he deny it saying it wasn’t necessary any longer?

Perhaps when Mike and Carol were in the attorney’s office, their response to these hypothetical situations was typical. “Oh our kids would never argue over this.”

It is possible to be loyal to both beneficiaries even if there are adverse interests. However, doing so requires a great deal of objectivity, scrutiny, and immunity to emotional persuasion. A wise trustee will establish clear expectations and open communication early in the relationship to avoid favoring one beneficiary over the other and risk breaching the duty of loyalty.

Caregiver Burnout

August 28, 2019 / drussellcfp

What is caregiver burnout?

Caregiver burnout is a state of physical, emotional and mental exhaustion. It may be accompanied by a change in attitude, from positive and caring to negative and unconcerned. Burnout can occur when caregivers don’t get the help they need, or if they try to do more than they are able, physically or financially. Many caregivers also feel guilty if they spend time on themselves rather than on their ill or elderly loved ones. Caregivers who are “burned out” may experience fatigue, stress, anxiety and depression.

What causes caregiver burnout?

Caregivers often are so busy caring for others that they tend to neglect their own emotional, physical and spiritual health. The demands on a caregiver’s body, mind and emotions can easily seem overwhelming, leading to fatigue, hopelessness and ultimately burnout. Other factors that can lead to caregiver burnout include:

Role confusion: Many people are confused when thrust into the role of caregiver. It can be difficult for a person to separate her role as caregiver from her role as spouse, lover, child, friend or another close relationship.
Unrealistic expectations: Many caregivers expect their involvement to have a positive effect on the health and happiness of the patient. This may be unrealistic for patients suffering from a progressive disease, such as Parkinson’s or Alzheimer’s.
Lack of control: Many caregivers become frustrated by a lack of money, resources and skills to effectively plan, manage and organize their loved one’s care.
Unreasonable demands: Some caregivers place unreasonable burdens upon themselves, in part because they see providing care as their exclusive responsibility. Some family members such as siblings, adult children or the patient himself/herself may place unreasonable demands on the caregiver. They also may disregard their own responsibilities and place burdens on the person identified as primary caregiver.
Other factors: Many caregivers cannot recognize when they are suffering burnout and eventually get to the point where they cannot function effectively. They may even become sick themselves.

What are the symptoms of caregiver burnout?

The symptoms of caregiver burnout are similar to the symptoms of stress and depression. They include:

Withdrawal from friends, family and other loved ones
Loss of interest in activities previously enjoyed
Feeling blue, irritable, hopeless and helpless
Changes in appetite, weight or both
Changes in sleep patterns
Getting sick more often
Feelings of wanting to hurt yourself or the person for whom you are caring
Emotional and physical exhaustion
Irritability

Source: Caregiver Burnout | Cleveland Clinic

Another Case of Sibling Rivalry

August 22, 2019 / drussellcfp

An Indiana Court of Appeals opinion underscores the importance of accountings in trust administration, but also raises questions about why families place siblings in adversarial positions to begin with.

According to an article posted by the Indianapolis law firm of Faebre Baker Daniels, the original case involved three siblings, Scott, Jeff and Stacey – and arose after Scott and Jeff began to question some of Stacey’s actions as trustee of their respective trusts – specifically, her handling of the trusts’ joint ownership of multiple parcels of real property. Shortly after the siblings executed a mediated settlement agreement and partitioned the properties, Scott sued Stacey, as trustee of his trust, alleging she failed to provide an accounting and had misused trust assets. Scott also alleged misappropriation of $107,000 of trust assets, which were characterized as trust expenses – which were in fact legal fees Stacey had incurred “years before the most recent trust-related litigation,” apparently with other family members.

One of the duties of a trustee (known as fiduciary duties) is to keep trust property separate and to maintain – and make available to trust beneficiaries – adequate records, which Stacey admitted she had failed to do. Unfortunately for Scott, he did not bring his complaint until after the two-year statute of limitations had expired, and the trial court found Stacey did not commit a breach of trust as to the accountings.

Scott also demanded reimbursement for his attorney’s fees for bringing the complaint against Stacey, which after being denied by the trial court was reversed by the Indiana Court of Appeals and Stacey was ordered to pay Scott’s legal fees.

While the crux of the case deals with a trustee’s responsibility to maintain adequate records and provide them to a trust’s beneficiaries, the real story in this case is the human one – that of a family of siblings now divided – at least partly – because one was put into an adversarial position with the others. I wonder if the trustee fee savings was worth it?

Source: Indiana Court of Appeals Opinion Upholds the Importance of Accountings in Trust Administration | Publications | Insights | Faegre Baker Daniels

The Case Files – Episode 1: “Fool me once, shame on you…”

August 19, 2019 / drussellcfp

Wealth and Honor is a website dedicated to helping families navigate the financial challenges of age transitions. The site now has a YouTube Channel to host “edutainment” videos featuring non-legal commentary on actual court cases involving will disputes, elder financial abuse, estate litigation, fiduciary liability, and other issues of aging, death, and wealth.

Court transcripts are condensed into a factual summary with popular sitcom characters providing faces to the actual characters of the case, followed by a non-legal commentary of lessons to learn and missteps to avoid.

https://youtu.be/6gBLpiWQX9c

The Case Files Trailer

The first episode covers the case of Lintz vs Lintz, a 2014 case decided in the California Appeals Court, that includes claims of breach of fiduciary duty, elder financial abuse, undue influence, among other claims. Viewers are encouraged to first watch a presentation of commonly used terms before watching the case episodes.

For a full text of the court transcript, click here.

One Family’s Journey Through Guardianship Hell

August 5, 2019 / drussellcfp

In one of the saddest yet too-common stories about what happens when families fail to plan, this post from investigative journalist, Gary Weiss, for NextAvenue.org outlines five mistakes that one family made on their journey through guardianship hell.

“You sit there and shake your head how things can go that bad that fast,” says Frederick Paugh, a field investigator with the New Jersey Long Term Care Ombudsman who examined some of the financial aspects of the case at the request of Ada’s assisted living facility. “ But you know what? It happens.”

What ended as a descent into legal hell began in Italy as a love story. Read the rest of the story here.

Source: One Family’s Journey Through Guardianship Hell

What are the “Four-P’s” of Financial Caregiving?

August 1, 2019 / drussellcfp

If you are one of the millions of those who identify themselves as part of the “Sandwich Generation” then you may be largely responsible for the financial decisions and well-being of an aging parent or loved one. Most will be thrust into the role largely unprepared and learn through on-the-job training. The problem with this approach is that the job is not an internship where an entire team of superiors form a safety net around your inevitable mistakes. Furthermore, the financial decision-making responsibilities are often added to the even greater stress of providing emotional or physical caregiving. Caregiver Burnout is a serious modern condition suffered by millions who are providing a sometimes overwhelming level of care.

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Like every aspect of caregiving, the motivation behind financial caregiving has to be one of love, honor, and respect for the one for whom we are providing care. To do the job effectively means that we need to educate ourselves. That’s what motivated me to write the book, What You Need to Know, back in 2012. I thought I knew all there was to know about financial caregiving until I became one. I was a professional financial planner after all. I had worked with clients for over thirty years helping them prepare for financial independence.

But in spite of all this preparation, and even with a healthy investment portfolio, it soon became clear that my parents were going to need someone to get intimately involved with their finances. Someone was going to have to organize and take over the tax reporting, bill paying, income tracking, insurance renewals, Medicare supplement choices, Prescription Drug Plans, Social Security check deposits, phone service, internet service, online parts ordering, sale of the unnecessary second vehicle, getting new Wills done, making sure Powers of Attorney were in place, helping with physician choices, etc., etc., etc.

As order evolved from chaos, I began to organize what I needed to know around four major areas – what I later called “The Four P’s” that include the following:

People
Property
Programs
Plans

In subsequent posts, I’ll delve deeper into each of these areas to suggest what you need to know about each of these in order to be an effective and honoring financial caregiver.

How Much Do I Need to Know About My Parent’s Finances?

July 26, 2019 / drussellcfp

Few people want to stick their noses into their parents’ business. For many, it’s the last taboo to inquire into your parents’ financial lives. This is one of those “it depends” questions. It isn’t always necessary for you to know every detail about your parents’ financial affairs. In fact, the less you need to know, the more likely they may be to tell you what you should know.

If your parents are still in good health mentally and physically, and are managing their affairs with no need for assistance, then the amount of detail you need to know is limited. They may be reluctant to tell you how much they are worth, or to reveal the contents of their wills. That’s okay. In that case, let them know that your concern is to know where to find important records in the event something happens.

If one or both of your parents are beyond their 80’s or if they are showing some signs of needing assistance with financial matters, then you are going to need to know more than simply where things are. And if you are serving as a conservator, trustee, or exercising authority under a power of attorney, then you have truly become a financial caregiver and will need to know as much as possible about their arrangements.

I use the “Continuum of Dependence” graphic below to visually show how much information an adult child or other family member needs to be aware of depending on the level of dependency someone is experiencing.