Category: Family Relationships (Page 6 of 6)

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.

How Much Do You Need to Know?

Seven Conversation Starters to Initiate Talks about Money with Your Parents

July 23, 2019 / drussellcfp

The question I am most often asked is “How do I begin the conversation with my parents?” I always answer, “Very carefully.” The truth is there is no one best way to begin the conversation. So much of it depends on circumstances and personality. Circumstances – usually health issues – may be at such a crisis point that you simply must take action with or without your parents’ approval – either by asserting your authority as attorney-in-fact under a valid Power of Attorney, or by seeking a court ordered guardianship or conservatorship. Your proximity to your parents, sibling agreement over what needs to be done (or the lack thereof), whether both parents are living, and the complexity of your parents’ financial affairs are just a few of the circumstances to consider. You also need to act quickly if you begin to notice impulsive spending or investment decisions.

Personality and family dynamics are also factors, and the relationship between child and parent doesn’t always make a lot of sense. Your eighty- eight year old father may still view you as the “baby” of the family even if you are sixty-two years old and have raised a family, managed a medical practice or a business of your own, and are practically retired yourself. You are the baby and you always will be. So before you begin the conversation in the first place, you might want to talk to a family counselor, their personal physician, or clergy member before you set yourself up for resentment. It’s okay if you are not the one to initiate the conversation.

Nevertheless, here are some ideas on getting the conversation rolling that you can try out.

The “I’ve got this friend” technique. This ice-breaker allows you to set up a hypothetical situation involving a real or fictitious friend who is wondering how to talk to their parents about money. It starts something like this: “Mom (Dad), I’ve got this friend who needs to ask her parents some personal questions about their finances, but isn’t sure how to ask. What should I tell her?” Chances are your folks will be on to this one soon after you ask it, and hopefully you can turn it into a good laugh by your honest confession that the “friend” is you. Once the chuckle is over, you can come back to it with a “Well…what would you say?” and just let them talk.
Ask how their friends are doing. Once your parents pass the age of seventy-five, chances are they will be attending more friends’ funerals or visiting more friends in nursing homes. You probably will have known these friends for a long time yourself, as well as the children of these friends. While remaining sensitive to the situation, use these events to ask how their friends are doing. Something like, “Mom, now that Jane is widowed, who is watching out for her?” Or “Dad, it’s sad to see your friend Sam lose his independence like that. Does he have children close by who can help with his business?”
Ask for help with your own finances. If your parents are past seventy, this means you’re probably past forty and are making some important financial decisions yourself. Asking for Dad’s advice on preparing your will or how to invest your retirement funds can go a long way to opening up a dialogue on his own business. Maybe your dad is fully capable of managing his finances now, but this conversation can ease the next one when the time comes for you to be a little more inquisitive.
Use the headlines. Unfortunately, the headlines can give you a lot of ammunition to use to open a conversation about your parents’ finances. All you have to do is google the phrase “financial abuse of elders” and you’ll be provided with dozens of sites and news articles about the vulnerability of seniors for financial scams and high-pressure sales tactics. Print out one of these articles, or clip one from your local newspaper and show it to them. Use an opener like, “I doubt this could ever happen to you, but…” Their response will tell you how open or closed they are to the subject.
Movies are great ice breakers. If your parents’ sight and hearing haven’t diminished, a good movie that deals with the subject of aging is a great ice breaker. One caveat, don’t use movies that are too dramatic or serious. Humorous movies are better at breaking down barriers to talking about this. Also, be sensitive to ratings that may not be comfortable for a generation that may see many of today’s PG-13 movies as too “racy”.
Try point blank honesty. If your parents are cut-to-the-chase kind of folks, then just try being upfront with them. “Mom and Dad, you’re both getting older and quite frankly, you’re not as sharp as you used to be. If something happens to either or both of you, I don’t know where to find your wills, or even where all your accounts are.” You may be surprised at how open they are willing to be if you show a compassionate yet firm resolve.
Ask about their advisors. If your parents use a financial advisor, ask for an introduction, or for permission to attend their next meeting with him or her. Sometimes advisors will be hesitant out of privacy concerns since they are bound to certain confidentiality standards. Getting written permission from your parents that the advisor is free to discuss their situation with you will generally alleviate these concerns.

However you begin the conversation and no matter the reception you get, the point is that the adult child is (and should be) the first line of defense for his or her parents just as they were (or should have been) your first line of defense growing up. Perhaps your past was more tumultuous, and perhaps your present is not conducive to you taking on the responsibility now. But you can be an advocate, and you can be involved to ensure that their financial affairs continue to provide security and dignity in their twilight years.