Category: Fiduciary Issues (Page 1 of 3)

Preparing for the Care of Pets

December 10, 2024 / David Russell / 0 Comments

I am an 85 year old widow with one daughter who is estranged from me and will not inherit from my estate. My accountant tells me I have more than enough to take care of me for life. My concern is for my pets. I have several cats that I want to be sure are taken care of when I die or if I have to go to a nursing home. It would break my heart if they were separated or orphaned. One of my sitters has offered to care for them, but how can I be sure the money will be used for the care of my pets and not for personal gain?

Margaret B

Your pets have obviously been wonderful companions for you, especially since you are widowed and sadly, do not have a relationship with your daughter. Facing the reality of what will happen to your furry friends when you can no longer care for them is understandably daunting. Your concern for their well-being is admirable, and it’s wonderful to see how deeply you care for them. The good news is that there are several practical steps you can take to ensure that your pets are cared for in the way you desire, even after you are no longer able to do so.

Understanding Your Options

Your primary focus should be on establishing a plan that will guarantee your pets continued love, support, and care. Given that your daughter is estranged, it’s comforting to know that you have a pet sitter who is willing to step in. Before making any decisions, it’s essential to understand various options available to you.

Pet Trusts: One of the most effective ways to ensure your pets are cared for according to your wishes is by establishing a pet trust. This legal arrangement allows you to set aside funds specifically for the care of your pets after you pass away or become unable to care for them. Pet trusts work by naming a trustee (which can be a trusted friend, family member, or professional) who will manage the funds you’ve allocated for your pets’ care. This can help ensure that the money is used exclusively for their welfare. Additionally, you can name a caregiver for your pets, such as your sitter, and provide them with specific instructions on how you want your pets to be treated.

Some key features of pet trusts include:

- Accessibility: The funds are accessible to the caregiver for things like food, veterinary care, and any special needs your pets may have.
- Oversight: A trustee can help monitor the use of funds, minimizing the risk of mismanagement.
- Duration: Pet trusts can last for the duration of your pets’ lives, offering ongoing support.
Incorporating Instructions in a Will: If establishing a pet trust feels overwhelming, you can also include instructions about your pets in your will. This can designate your sitter or another trusted friend as their caregiver after your passing. However, one downside to this approach is that funds for your pets’ care may not be as protected and may be used for unintended purposes.

My Step-Brother is Trustee of My Trust – and I hate it!

November 19, 2024 / David Russell

I am a beneficiary of a trust created for me, my older sister, and my step-brother, "Sam" - the only son of my mother's late husband, Max. When Max died, there was a trust set up for Mom, and when Mom died, the trust continued for the benefit of the three of us. My step-brother "Sam" is the trustee and I hate it. It seems whenever I ask for something out of the trust, Sam goes out of his way to make my life difficult. I have to justify every request with a complete run down of my financial situation, including my bank account balance, what I owe on my car, even my credit card balance. It's embarrassing to have to undress financially in front of my step-brother every time I need something. Is there anything I can do to remove him or am I stuck in this arrangement?

Sandra T.

When it comes to family trusts, emotions can run high alongside financial considerations, especially in situations like this. Being a beneficiary of a trust is meant to provide financial support and security, but when the dynamics become strained—particularly with a family member serving as the trustee—things can become complicated.

Let’s explore the roles and responsibilities of a trustee, the challenges that can arise in family trusts, and potential steps you can take if the relationship with your trustee becomes problematic. It’s important to approach this topic with diplomacy, as family dynamics can be delicate and complex. Most lawyers will tell you that the courtroom should be the arbitor of last resort.

The Trustee's Role

To start, let’s clarify the primary responsibilities of a trustee. Trustees are individuals or institutions designated to administer the trust according to its terms and in the best interests of the beneficiaries. This includes managing trust assets, distributing funds as outlined in the trust agreement, and maintaining accurate records.

In your case, Sam, your step-brother, is serving as that trustee. Ideally, a trustee should act with transparency, fairness, and respect towards all beneficiaries. Unfortunately, family dynamics can complicate this role, and emotions may cloud judgment or lead to perceived unfairness.

For example, the trust may require the trustee to determine whether a requested distribution to a beneficiary meets the support standards it establishes. This investigation when a family member is trustee can seem more invasive than if the trustee was a detached person or entity.

Understanding Your Position as a Beneficiary

As a beneficiary, you have rights to the trust assets as specified within the trust agreement. This generally means you are entitled to request distributions. However, it’s not uncommon for trustees to seek some financial context behind these requests, which can sometimes feel intrusive. While it may be reasonable for Sam to ask for some information to ensure that distributions align with the trust’s intent, it’s essential to find a balance that respects your privacy.

It’s important to communicate openly with Sam about how his requests make you feel. He may not realize the discomfort it causes you, and honest dialogue can sometimes alleviate such tensions.

Challenges of Family Dynamics

Family members often find themselves in roles that blur personal and professional lines, especially when money is involved. Your relationship with Sam as both a step-brother and trustee can make this situation even more delicate. Trust issues can arise not because of malice but due to misunderstandings, differing expectations, or even emotional responses stemming from loss.

When confronting challenges with a trustee, it can be beneficial to remind yourself that these situations are not uncommon. Many beneficiaries may experience frustrations around trust distributions, and seeking resolutions while maintaining family harmony can be particularly tricky.

If you feel that Sam’s actions are unreasonable or overly burdensome, consider these steps:

Communicate Openly: Start with an open conversation. Share your feelings about the financial disclosures required for distributions. This can be a delicate conversation, but framing it in a way that emphasizes your discomfort can lead to a more constructive dialogue.
Request Clarity on Trust Terms: Look into the terms of the trust. If it provides specific guidelines on distribution requests and the trustee’s responsibilities, it can help clarify what is fair and expected. While you may not have legal clarity, understanding these terms will bolster your position for further discussions.
Seek Mediation: Sometimes, having a neutral third party, such as a family counselor or mediator, can help facilitate discussions. This person can serve as a mediator in contentious situations and help keep conversations constructive.
Explore Legal Options: If discussions do not yield a satisfactory outcome, you may want to consult with a legal professional specializing in trusts. They can provide you with guidance on your rights as a beneficiary, the potential for removing a trustee, and the processes involved. It’s important to seek an informative consultation without assuming it leads to litigation.
Document Everything: Keep records of your communications and requests. If things escalate or legal intervention becomes necessary, having a clear history can be invaluable. This documentation may also help if you need to present your case to a legal professional.
Consider the Long-term Relationship: Before taking action that may significantly impact your relationship with Sam, carefully weigh the repercussions. Family ties are invaluable, and often taking a step back to assess the situation can promote healthier long-term dynamics.

Keeping the main thing the main thing

Navigating trust relationships, especially within families, can be fraught with complexities. It’s crucial to approach these situations with a blend of empathy, understanding, and assertiveness. As a beneficiary, remember that you have rights, but strive for a path that honors both those rights and your family relationships.

While you may feel constrained by your circumstances, open communication and informed actions can pave a way forward. You’re not alone in facing these difficulties; many beneficiaries encounter similar challenges. By seeking understanding and resolution, you can work toward a balanced outcome that honors both your needs and the trust’s intentions. Remember, seeking knowledge and support is a powerful step in ensuring that family and trust matters are handled with care.

Siblings concerned about Step-Mother’s Use of Trust Fund

September 26, 2024 / David Russell

My dad passed away about seven years ago and left a sizeable trust to his wife. The trust is supposed to take care of her for her life before passing to me and my three siblings when she dies. That's all we know about it. We think she is the trustee, but we've never asked because we want to avoid drama. We know she has other assets that she brought into the marriage so we hope she's not draining the trust at our expense. How do we go about finding out the details of this trust, such as how much is in it, what it's being used for, and who is in control of it?

Missy F

This is a tough but very common family situation, caused in part, by a lack of communication about your dad’s plan while he was living. When your dad passed away and left a trust for your stepmother, it undoubtedly added layers to an already emotional situation. Now, faced with uncertainty about the trust’s details and anxious about its potential impact on your inheritance, you’re understandably concerned.

Finding out about the specifics of a family trust, especially when feelings run high, requires a gentle and thoughtful approach. Here’s some ways you can seek the information you need while preserving family harmony.

How to Divide Sentimental Items in an Estate

September 24, 2024 / David Russell

My mom recently passed away and I am the executor of her will. The will is fairly simple with everything divided equally between me and my four siblings. The problem is that there are a lot of heirloom items, including art, jewelry, furnishings, and several sentimental items that I know several of us have an interest in. Some are worth quite a bit, but most of it holds only sentimental value. Since I am responsible for dividing these items equally, how can I fairly and objectively do this without it looking like I'm favoring myself?

Betsy T.

First of all, I’d like to extend my heartfelt condolences for the loss of your mother. Navigating the complexities of grief while handling the responsibilities of being an executor can be an incredibly challenging task. It’s commendable that you’re seeking a fair and objective way to manage your mother’s legacy while honoring her memory and considering your siblings’ feelings.

Can Mom’s New Boyfriend Replace Me as Power of Attorney?

September 4, 2024 / David Russell

I hold power of attorney for my mother. She's 89 years old and for the last two years, she has had a close companionship with "Stanley," a widower in the retirement community she lives in. Lately when we've discussed her future care needs, Stanley has been present and has bristled at the idea of Mom moving into assisted living or skilled care, even suggesting she move in with him. I'm concened that Stanley could talk her into removing me as power of attorney and naming himself. If so, what can I do to protect her?

Sarah T

First, your mother’s happiness is undoubtedly important, but so too is ensuring that her interests are protected as she navigates this vulnerable time in her life.

So, take a deep breath. This is a common concern that many family members face, and you’re not alone in dealing with these situations that involve both touchy and practical issues.

Why Banks Might Refuse a POA

August 13, 2024 / David Russell

I hold a valid power of attorney for my mother, but when I tried to use it at her bank, the bank refused to recognize it. Why would the bank refuse to honor a valid legal document?

Nancy s.

As a holder of a power of attorney (POA) for a loved one, it can be incredibly frustrating when a bank refuses to recognize this legal document. You may believe that you have the authority to act on your mother’s behalf, but banks sometimes take a cautious approach when it comes to powers of attorney. Let’s explore some common reasons banks might refuse to honor a valid POA and what you can do if you find yourself in this situation.

Broaching Financial Power of Attorney: A Sensitive Conversation

May 6, 2024 / David Russell

My elderly father is resistant to the idea of relinquishing control over his finances, but he's starting to show signs of cognitive decline. How can I delicately broach the subject of financial power of attorney without causing conflict?

Amy

First and foremost, know that you’re not alone in facing this challenge. Many families encounter similar hurdles as their loved ones age, and it’s perfectly natural to feel apprehensive about initiating such conversations. It can feel like tip-toeing through a minefield of emotions, especially when broaching the subject of financial power of attorney.

Approaching the topic with sensitivity and empathy is key. Start by creating a safe space for open dialogue, perhaps over a cup of coffee, during a walk, or other quiet moment together. Express your concerns from a place of love and genuine care for your father’s well-being without sounding patronizing. I would also avoid using any of the phrases below as they can sound manipulative, demeaning, or patronizing.

How NOT to start the conversation

“Dad, now that you have dementia, don’t you think you need help managing your affairs…”
“You know, it’s only a matter of time when you’re going to slip up and make a big mistake…”
“I’m only doing this for you…”
“You know, Mom would want you to do this…”

Good conversation starters

In my Financial Caregiver Academy Course, I dedicate two lessons to Working as a Family. In Part One, I outline Seven Conversation Starters that may help begin the conversation. However, it may not always be you or a sibling that is best for broaching the topic. Sometimes a trusted friend, spouse, or outside advisor can open the door to the conversation easier than the adult child.

When discussing the idea of financial power of attorney, emphasize the importance of maintaining his autonomy. Assure him that this step is not about taking away his independence but rather about ensuring his wishes are honored and his best interests are protected.

One thing you could mention is the use of a Springing Power of Attorney – that is only upon the occurrence of a predefined event will the power “spring” into being. Usually the event is when two physicians known to the individual attest that he is no longer capable of managing his affairs. Until then, your dad would retain full control over his affairs.

It’s crucial to listen attentively to your father’s concerns and reservations without dismissing them. Acknowledge his fears and uncertainties, and validate his emotions. Reassure him that you’re there to support him every step of the way and that decisions will be made collaboratively, with his input and wishes guiding the process.

Depending on your father’s level of understanding and engagement, you may find it helpful to provide educational resources or involve a trusted third party, such as a financial planner or elder law attorney, in the discussion. These professionals can offer expert guidance tailored to your family’s unique circumstances and help navigate the legal and logistical aspects of establishing a financial power of attorney.

Remember, these conversations may not always unfold smoothly, and it’s okay to take things one step at a time. Be patient with yourself and your father as you navigate this journey together. By approaching the topic with empathy, respect, and a commitment to collaborative decision-making, you can help ensure that your father’s financial affairs are managed responsibly while preserving his dignity and autonomy.

Constructive Trusts – When Trust is Broken

September 29, 2023 / drussellcfp

Elder financial abuse is a distressing issue that affects vulnerable seniors, often leading to significant financial losses. In the realm of legal remedies, one powerful tool used to address such cases is the constructive trust. But what exactly is a constructive trust, and how does it work?

At its core, a constructive trust is a legal remedy aimed at correcting unjust enrichment and ensuring that property or assets are returned to their rightful owner. Unlike a traditional trust created by a formal legal agreement, a constructive trust arises by operation of law. It’s a flexible and equitable concept that courts employ when they find that someone has obtained property, assets, or benefits in an unfair or wrongful manner.

Constructive trusts are not exclusive to elder financial abuse cases; they can be applied in various situations where one party has benefited at the expense of another without a proper legal basis. For purposes of our discussion however, we’ll focus on their use in elder financial abuse situations.

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.

April 23, 2021 / drussellcfp

Britney Spears has been under a California-ordered conservatorship since 2013, and in recent years has tried unsuccessfully to have her father, Jamie Spears, removed. Attorneys for Jaime Spears have maintained that he “has always acted in the best interests of his daughter.”

Conservatorships are court-ordered arrangements presumably designed to protect those who cannot manage their own affairs due to some physical or mental limitation. Each state has its own rules for conservatorships and courts may appoint anyone it chooses to be in charge of someone’s property.

A spotlight on Britney Spears’ conservatorship has led lawmakers in one state to consider changes, but some say focusing on the pop star could overlook the needs of those with disabilities.

Source: #FreeBritney Movement Prompts Lawmakers To Consider Changing Conservatorship Rules – Disability Scoop