Category Archives: Uncategorized
Details for this article were excerpted from Evan H. Farr, CELA’s book, How to Protect Your Assets From Probate PLUS Lawsuits PLUS Nursing Home Expenses with the Living Trust Plus(TM). Buy the book THIS FRIDAY, JUNE 21 (the official release date) and receive $1,250 in bonuses. Read more about this special offer below the article.
—
Problems often arise when people don’t have a coordinated method of passing on their estate. Take for example, Joe, who has become incapacitated as the result of a severe stroke. He has a wife, Mary, and two children, Carrie and Phil. He does not have any incapacity planning documents in place.
James, on the other hand has died and had only a Last Will and Testament. His Will states that everything should be equally divided among his children, Patricia, Marie, and Brian. While he was alive, he created a joint account with only Marie. The three siblings were in disagreement about whether that account should be put back in the pool with the rest of the property or simply go to Marie, whose name was on the account.
What happens in both of these situations? In Joe’s case, without proper incapacity planning documents, his estate will go into living probate since he became incapacitated while he is alive. In James’ family’s situation, since he died without a trust and used a Last Will and Testament as his primary estate planning tool, his estate will go through post-mortem probate and a court will decide what happens with the joint account described. In both cases, the probate process could end up being a lengthy, costly and public process.
Living Probate
If you become incapacitated, like Joe in our example, while you are alive and you don’t have proper Incapacity Planning documents in place, then someone will have to go to court to have you declared incompetent. This person will seek to become your guardian/conservator.
Once officially appointed, a guardian/conservator under a living probate is accountable to the probate court and is required to:
- prepare and file various legal and financial documents,
- take an initial inventory of the estate and detailed annual accountings showing everything coming in to and going out of the estate
- ensure that all assets are accounted for and that any valid debts, expenses, and taxes are paid.
Living probate continues for the lifetime of the incapacitated individual.
To avoid living probate, you need to have Incapacity Planning documents in place. Incapacity Planning (which can be done by itself or in connection with your Estate Planning) involves the
signing of three important documents: (1) a Durable General Power of Attorney for legal and financial affairs; (2) an Advance Medical Directive, which includes a Medical Power of Attorney, Long-Term Care Directive, Living Will, and Post-Mortem Directive; and (3) a Lifestyle Care Plan. Taken together, these three important documents allow you to decide in advance who will manage your legal, personal, and financial affairs in the event of your disability, and exactly how you will be cared for.
Post-Mortem Probate
To initiate the post-mortem probate process in most states, an Executor nominated in a Last Will and Testament must take the original Will and an original death certificate and make at least one appearance at the probate office to officially “qualify” and be “sworn in” as executor. If you died without a Will or Trust, then someone on your behalf goes to the probate office to become the Administrator of your Estate. Both an Executor of a Will and an Administrator of an Estate are called “Personal Representatives” and serve the exact same function.
Similar to the Conservator under a Living Probate, a Personal Representative under a post-mortem probate is accountable to the probate court and is required to prepare and file various legal and financial documents, including an initial Inventory of the estate, and provide detailed annual accountings showing everything coming in to and going out of the estate. The Personal Representative must see to it that all assets are accounted for and that any valid debts, expenses, and taxes are paid. With post-mortem probate, typically after a certain period of time from the date of death, the Personal Representative may distribute the remaining assets of the estate.
Using a Last Will & Testament (Will) as your primary estate planning tool means that your estate will go through probate upon your death. Because probate can be a time-consuming, expensive process, many people choose to avoid it. There are a number of legal strategies that will allow you to pass property to another person after death without going through probate. A properly drafted and funded trust will generally avoid probate. If you don’t have your estate planning documents in place, now is the time to get started. Please call The Fairfax Estate Planning Law Firm of Evan H. Farr, P.C. at 703-691-1888 to schedule a no-cost consultation.
—
How to Protect Your Assets From Probate PLUS Lawsuits PLUS Nursing Home Expenses with the Living Trust Plus™ is available now in pre-release on Amazon.com – but don’t buy it yet. If you wait and buy this new book on the June 21 Official Release Date, you’ll get $1,250 in bonuses including:
- Free copy of Evan Farr’s other book released this year: the Nursing Home Survival Guide;
- Free 45-page Special Report: Legal Research Behind the Living Trust Plus™;
- Two $500 Gift Certificates towards legal services from the Farr Law Firm.
This special one-time offer is valid only on Friday, June 21, 2013. Once purchased, simply email your Amazon.com receipt to renee@farrlawfirm.com. Please allow 1-2 weeks to receive bonuses.
Certified Elder Law Attorney and Best-Selling Author Evan Farr Releases New Book: “How to Protect Your Assets From Probate PLUS Lawsuits PLUS Nursing Home Expenses with the Living Trust PlusTM.”
Mr. Farr’s latest book is now available in pre-release on Amazon.com – but don’t buy it yet. If you wait and buy this new book on the June 21 Official Release Date, you’ll get $1,250 in special bonuses, detailed below.
Certified Elder Law Attorney Evan H. Farr will officially release his latest book, How to Protect Your Assets From Probate PLUS Lawsuits PLUS Nursing Home Expenses with the Living Trust PlusTM, on June 21, 2013.
The potentially devastating costs of a nursing home can be catastrophic to most families, who have worked their entire lives to earn the assets that they have. In this book, Evan H. Farr, CELA, a nationally-renowned best-selling author and frequent educator of attorneys across the U.S., provides incredibly valuable information and guidance to consumers on how to protect their hard earned assets from lawsuits, divorce, and nursing home are using his proprietary Living Trust PlusTM Asset Protection Trust.
The Living Trust PlusTM is a special type of asset protection trust that functions very much like a revocable living trust but is the only self-settled asset protection trust that protects a family’s assets from probate PLUS lawsuits PLUS nursing home expenses. Mr. Farr created the Living Trust PlusTM in 2007 and it is now being used by dozens of exceptional estate planning and elder law attorneys throughout the country. According to Mr. Farr, “Although a revocable living trust does a terrific job of avoiding probate, what most people don’t realize is that a revocable living trust does not protect your assets from creditors or from the expenses of long-term care.”
Mr. Farr offers readers expert advice on how to use the Living Trust PlusTM to avoid the problems of probate and the risks of lawsuits and nursing home care. He examines why Wills are not a good solution, and discusses in detail living trusts – both the regular living trust (i.e., the revocable living trust designed primarily to protect your assets from probate) and more importantly, the Living Trust PlusTM, designed to protect your assets from probate PLUS lawsuits PLUS nursing home expenses.
How to Protect Your Assets From Probate PLUS Lawsuits PLUS Nursing Home Expenses with the Living Trust PlusTM is available now in pre-release on Amazon.com – but don’t buy it yet. If you wait and buy this new book on the June 21 Official Release Date, you’ll get $1,250 in bonuses including:
- Free copy of Evan Farr’s other book released this year: the Nursing Home Survival Guide;
- Free 45-page Special Report: Legal Research Behind the Living Trust Plus(TM);
- Two $500 Gift Certificates towards legal services from the Farr Law Firm.
This special one-time offer is valid only on Friday, June 21, 2013. Once purchased, simply email your Amazon.com receipt to renee@farrlawfirm.com. Please allow 1-2 weeks to receive bonuses.
Elder Law is a very broad area of law that encompasses not just Medicaid and Veterans long-term care planning for people over 65. Elder Law also encompasses legal areas such as: Asset Protection, Trust and Estate Planning, and Incapacity Planning for people of ALL ages; Special Needs Trusts for families with a disabled child or other loved one with special needs; Guardianship and Conservatorship for special needs children turning age 18; Guardianship and Conservatorship for Incapacitated Adults; Estate Tax Avoidance for high-net-worth families; and Probate / Trust and Estate Administration for families after the death of a loved one.
Jillian and Peter were in their early 30′s. They had been married for three years and were the parents of two-year old twins, Ethan and Mason. They had just purchased their starter home. Back then, when they talked about the future, it typically involved putting money away for the education of their children or taking a family trip to Disney World. For them, Elder Law or Estate Planning was not yet part of their conversation, until they realized that it needed to be.
When Jillian and Peter thought about Elder Law or Estate Planning, they envisioned people the age of their parents who are retiring and planning for their futures. They had this perception until their closest friends, Joe and Jennifer, told them that they met with a Certified Elder Law Attorney to begin their own estate planning. Joe and Jennifer wanted to make sure that their kids would be raised by Joe’s sister, who shares their religion and family values, should the inevitable happen. This got Jillian and Peter to thinking “what would happen to their children if one or both of them became incapacitated or died in an accident?” These circumstances are painful to think about, which is why many young people like Jillian and Peter often do not consider the consequences of not having an estate plan.
Although contemplating your mortality may not be pleasant, it’s a must if you and your spouse are new parents or considering starting a family. Creating an estate plan now will ensure the financial well-being of your children if you or your spouse become incapacitated or die.
Estate Planning and Elder Law techniques are different for the younger generation than those in their 50′s and 60′s, but equally as important . Let’s take a closer look at why Estate Planning and Elder Law are in fact essential, no matter how old you are, using Jillian and Peter from our example:
In their 20s: Jillian and Peter just finished school and started their careers. They were engaged, but not married yet, and as mentioned previously, hadn’t started thinking about Estate Planning. If they had, this would have been a good time for them to choose their financial and healthcare agents and create their Powers of Attorney and Advance Medical Directives. These are documents to have in place for ALL adults, regardless of age.
In their 30s: Jillian and Peter got married, purchased a home, and had children – twins Ethan and Mason. They chose guardians for their young children in case of death, and temporary guardians in case of incapacity; they decided how their joint property will be distributed, and got serious about life insurance. By the time they did their planning, Mason had already been diagnosed fairly high on the Autism Spectrum Disorder scale, so they created a Special Needs Trust to make sure that Mason would be taken care of and his needs would always be met.
In their 40s: Jillian and Peter have worked hard and saved, and with their Certified Elder Law Attorney, they have started to think more about the best way to protect their assets with trusts and tax planning.
In their 50s: Ethan has moved out, gotten married, and has had a daughter, and Mason needed to move into a group home to help meet his needs. Jillian and Peter met with their Certified Elder Law Attorney to discuss their options, which included Guardianship, SSI and Medicaid planning for their adult son.
In their 60s: Jillian and Peter are ready for retirement! Since they have been keeping up with their planning through the decades, they will now make changes to account for the marriage of their son, the birth of their grandchild, and their own relocation to someplace warm and sunny. They begin to think about their own long-term care planning.
In their 70s and beyond: Peter is beginning to experience signs of dementia. Jillian and Peter meet with their Certified Elder Law Attorney to discuss Life Care Planning and Medicaid Asset Protection to protect them from having to go broke to pay for nursing home care, while ensuring the best possible care and the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home.
As you can see by our example, Elder Law and Estate Planning doesn’t start when you are “elderly”– it is something that should start when you first become an adult and continue throughout your lifetime. Your life goes through incredible changes each decade; therefore, you should look at Elder Law and Estate Planning as gradual processes, rather than a one-time ordeal. If you haven’t done so already, now is the time to begin your process. Call the Fairfax Elder Law and Estate Planning Law Firm of Evan H. Farr, P.C. at 703-691-1888 to make an appointment today for a no-cost initial consultation!
Our lives and technology are changing faster than ever and our estate plans need to keep up with these changes. This series will look at things that may not have been addressed or asked about in the estate planning process 5-10 years ago, but are important to many families today.
In the first part of the series, we looked at firearms. Firearms are valuable personal property that can be very important to some people. We explored how firearms cannot be left to others in the same way that you would leave other property, as they are subject to strict government and state regulations and transfer rules. Click here to read Part 1.
In the second part of the series, we focused on digital assets. Digital assets are a significant part of the financial lives of many people, and they would have an incomplete estate plan if those assets and accounts were not considered as part of the planning process. In fact, a recent study showed people in the U.S. value their digital assets at nearly $55,000. Digital assets can include online banking and arrangements to pay bills online, storage of important documents and information, and log-in credentials for valuable benefits, such as frequent-flier miles. Click here to read Part 2.
There are trusts and other strategies available for things like firearms, digital assets, planning for pets, and life planning, but what are the advantages and disadvantages of including them as part of your estate plan? Part 3 of this series will look at estate planning for pets and how you can include your beloved furry friends in your estate planning.
Part 2: Estate Planning for Pets
Many of us who think of our pets as family members want to ensure that they are cared for after we become incapable of doing so. One way to fulfill this responsibility is to set up a pet trust, or a legally sanctioned arrangement that provides for the care and maintenance of your pet(s) in the event of their your disability or death.
Until around 10 years ago, pet owners had no formal legal way to leave behind money to care for their animals. According to Kara Holmquist of the SPCA, “too many animals are landing in shelters after the owners have died”. “On any given day,” she said, “there are animals in shelters whose owners have passed away or become incapacitated. That’s unnecessary, especially if the owner had the means to provide for the pet’s care, because it means the shelter space is not available for another homeless animal.
Because pet trusts are enforceable by law, pet owners can have peace of mind knowing their pets will be cared for according to their instructions. The directions left in a trust can be very specific, and can even include your pet’s favorite brand of food, how many times you visit the veterinarian, and your pet’s walk/exercise schedule. A trust that goes into effect while the pet owner is still alive can provide instructions for the care of the animals in the event that the pet owner becomes gravely sick or injured. Since pet owners know the particular habits of their animals better than anyone else, they can describe the kind of care their pets should have and provide a list of the person(s) who would be willing to provide that care.
Unlike a Will, which has to wind through the nightmare of probate, a Pet Trust should be created along with your living trust and should be designed to take effect immediately upon your incapacity or death so that your beloved companion does not have to linger in a shelter while the courts cut through paperwork. Most pet owners opt to leave pets to family or a close friend. The main value of the pet trust is the fact it’s legally enforceable. If your designated caretaker does not live up to obligations, the courts can step in.
The most famous Pet Trust may belong to Trouble Helmsley, the late Leona Helmsley’s Maltese and the dog that grabbed headlines when a judge slashed her trust fund from $12 million to $2 million. Recent laws won’t prevent the judge from curbing the pet trusts’ dollar amounts if the amount seems “excessive.”
Since there are several states in which a pet trust is not valid, and other states where enforcement is discretionary, it is advisable to set up a trust with the help of a Certified Elder Law Attorney, such as Evan H. Farr, who specializes in estate planning. If you live in Virginia, the law (Virginia Va. Code Ann. § 55-544.08) states that “A trust may be created for the care of an animal or animals alive during the settlor’s lifetime. The trust terminates upon the death of the animal, or upon the death of the last surviving animal covered by the trust.”
You can find out more at your complimentary consultation at The Fairfax Estate Planning Law Firm of Evan H. Farr, P.C. You can then decide if the trust makes financial sense for you and your family. If so, we can work with you to include all of your pet’s needs and your wishes for your pet, and name a caretaker and a trust administrator for when the inevitable happens.
Please call 703-691-1888 to make an appointment for a no-cost consultation. While you are in the office, be sure to visit with all of the animals who live here, including Saki and Alley (our Siamese cats), Big Red (our betta fish), Ernie and Jannette (our African Dwarf Frogs), and Commander Bun Bun (our lop-eared love bunny) and Baxter (our newest office pet who you will hear more about soon!) be sure to read our “Critter Corner” column in our Friday “Ask the Expert” newsletter each week.
Our lives and technology are changing faster than ever and our estate plans need to keep up with these changes. This series will look at things that may not have been addressed or asked about in the estate planning process 5-10 years ago, but are important to many families today.
In the first part of the series, we looked at firearms. Firearms are valuable personal property that can be very important to some people. We explored how firearms cannot be left to others in the same way that you would leave other property, as they are subject to strict government and state regulations and transfer rules. Click here to read Part 1.
There are trusts and other strategies available for things like firearms, digital assets, planning for pets, and life planning, but what are the advantages and disadvantages of including them as part of your estate plan? Part 2 of this series will look at digital assets and how you can include them in your estate planning.
Part 2: Estate Planning for Digital Assets
So much of our lives are spent online — banking, shopping, social networking — that a new category of personal property, known as “digital assets” has emerged.
Digital assets include any work, passwords, documents, or possessions stored on a computer and the Internet. They can include photos, videos, emails and playlists, or even medical records and tax documents. As more financial institutions encourage account owners to sign up for paperless statements, the list continues to grow.
Why is planning for digital assets so important? Digital accounts and assets are a significant part of the financial lives of many people, and they would have an incomplete estate plan if those assets and accounts were not considered as part of the planning process. In addition, if you don’t carefully consider all accounts and communicate details to permit access to your executor, it can create tremendous headaches for those responsible for dealing with your assets after death.
These are some other reasons why you should plan for digital assets:
- Many people have extensive arrangements to pay regular bills online or they may have assets online tied to PayPal, e-Bay or Amazon.com. If no one knows about this, bills are likely to go unpaid.
- People running their own business are likely to store important information on computers. A domain name or a blog also could be valuable, yet it may only be possible to access it via password or email. If that password is unavailable when someone dies, what happens to all those things?
- Some members of airline frequent-flier programs might even accumulate a staggering amount of points or miles and die without having spent them. As long as a beneficiary knows the online log-in information of the deceased member, it may be possible for the remaining benefits to be transferred or redeemed. It would be a shame to forgo the points a loved one has taken many pricey trips to earn.
A recent study showed people in the U.S. value their digital assets at nearly $55,000 (Source: McAfee). And some of those digital assets are almost certain to be lost if the owners do not take time to list them in their estate planning documents.
What makes planning for digital assets so challenging? These days, even when there are clear instructions in estate planning documents, many social media websites have contracts that protect the privacy of users. This may change, as the House of Delegates in Virginia passed a bill earlier this year that would provide the personal representative of the estate with access to a testator’s personal electronic accounts . Other states, including Maryland and North Dakota have followed suit and have introduced similar legislation. In addition, popular sites and services like Facebook, Gmail, LinkedIn and Twitter have deceased-user policies to provide the family or executor with information needed to access accounts. Read our recent article about protecting your online belongings.
What happens to digital assets if someone dies without a trust or at least a Will clearly disposing of these assets? State law decides what happens, which may or may not be what you want. But digital assets such as email, Twitter and Facebook accounts are so new that most courts have not developed rules for how to distribute them when there are no instructions in the will. In these cases, who knows what will happen to your valuable digital assets?
To protect digital assets, we recommend specifying them in your estate planning documents and specifically giving control over these digital assets to your executor or trustee, who could then take over upon your death. An easier way is to store all of your digital user names and passwords in a secure password safe, such as keepass or lastpass and give your executor/trustee the password and location of the password safe or the means to locate your master password, such as by writing down your master password and putting it in an envelope in your safe deposit box.
Take time today to start planning for your digital assets AND your traditional assets. Now it is a good time to start or possibly update your estate planning. Call us today at 703-691-1888 to set up an appointment for a no-cost consultation.
Q. I am considering whether to prepay for my funeral to save my family the expense and burden during what will be a tough time, but had a few concerns about it first. I am interested in learning more about prepaid funeral contracts and whether Medicaid pays for funerals, at all. If not, is it possible to set aside money for this in a funeral trust and be exempt?
Based on question that was asked on Avvo by a resident of Clarksville, VA
- A. Medicaid itself does not pay for funerals, but it does have rules that allow you to set aside money for your own funeral, burial, or cremation without having that money “count” as part of your assets when Medicaid determines your eligibility for long-term care coverage. Medicaid Regulations permit the ownership of prepaid funeral arrangements if funded totally by an irrevocably-assigned life insurance policy and/or by an irrevocable trust that is properly established by a funeral home. The amount of money you spend on properly-established prepaid funeral arrangements will be an exempt asset in connection with Medicaid. Medicaid regulations permit the Medicaid applicant to purchase prepaid funeral plans not only for the Medicaid applicant but also for his spouse (and his or her children, if desired), but again it is critical that these pre-paid arrangements are set up properly using either an irrevocable life insurance policy, a special type of irrevocable trust, or both.
Q: My second question is whether Medicaid imposes a limit on how much you can spend for prepaid funeral arrangements.
- No. There is no limit on the amount of money that can be spent on properly-established Medicaid-exempt prepaid funeral arrangements, but in reality, prepaid burial arrangements typically cost between $8,000 and $12,000 per person. Prepaid cremation arrangements typically cost between $3,000 and $5,000 per person. When the proper funding vehicles are used to prepay a funeral, the value of the prearranged funeral contract and the funding vehicle are excluded as a countable resource in determining SSI & Medicaid eligibility.
Most funeral homes will tell you that they have an appropriate funding system in place, but in actuality many funeral homes do not use appropriate funding system, which you only find out when you apply for Medicaid and are denied. The Fairfax Medicaid Law Firm of Evan H. Farr, P.C. has certain funeral homes that we work with that do use an appropriate funding system, and we therefore refer our clients to these funeral homes. However, even if you use a funeral home that uses an appropriate funding system, the funeral director must still fill out the forms properly, and there is significant opportunity for error in completing the forms. Accordingly, for our clients, we ensure that our office reviews the completed forms before our client signs them.
Prepaying for a funeral has many benefits, including locking in prices, relieving the burden of family members during a time of emotional stress, and ensuring that your personal desires are carried out according to your wishes. Additionally, purchasing prepaid funeral arrangements is just one of dozens of different Medicaid Asset Protection strategies that someone applying for Medicaid can use to legally and ethically protect assets from having to be spent down in connection with nursing home care. With proper planning, families can protect most or all of their assets and obtain Medicaid assistance without having to deplete their life savings. Always contact an experienced Elder Law Attorney, such as Certified Elder Law Attorney Evan H. Farr, before you make any prepaid funeral arrangements or take any other steps towards filing for Medicaid. Medicaid is the most complex area of law in existence, and one mistake can have tragic consequences for you or your loved one. Our firm serves clients throughout Virginia, Maryland, and DC, and would be happy to assist you.
Click here to view a short video and read more about Medicaid Asset Protection. Call 703-691-1888 to make an appointment for a free consultation with Evan H. Farr, CELA to talk more about your specific situation.
Our lives and technology are changing faster than ever and our estate plans need to keep up with these changes. This series will look at things that may not have been addressed or asked about in the estate planning process 5-10 years ago, but are important to many families today.
These things include firearms, digital assets, planning for pets, and life planning. There are trusts and other strategies available for these things, but what are the advantages and disadvantages of including them as part of your estate plan?
Certain items, such as firearms, cannot simply be left to others in the same way that you would leave other property. They are subject to strict regulations that you may not have accounted for in your Will or Trust. Part I will focus on “Estate Planning for Firearms Owners”, and whether or not firearms owners should include their guns as part of their estate plans and how to do so.
Part 1: Estate Planning for Firearms Owners
Passing firearms in an estate is much different from passing on other personal property. The National Firearms Act (NFA) very strictly regulates the possession and transfer of firearms. In addition, states and even local jurisdictions have an array of firearms transfer rules that must be followed.
Under the NFA, there are some commonly-known restrictions. For example, people convicted of felonies, domestic violence, or drug trafficking and those who are mentally ill are not allowed to own firearms. Less commonly known is that dishonorably discharged veterans and persons who have renounced their U.S. citizenship are also not allowed to own firearms. If an executor follows instructions in a Will that directs the distribution of firearms to people in the categories above, the executor is violating the NFA and may be subject to criminal and civil penalties. Even more nerve-wracking is that merely having a firearms appraised can cause its seizure. Because of this, bequeathing firearms in a Will is not a prudent way to plan.
A better choice for transferring firearms is to use a Revocable Living Trust (RLT) designed specifically for the transfer, ownership, and possession of guns. Many estate planning attorneys call these “NFA” trusts or “Gun Trusts.” Using a “Gun Trust” can avoid or minimize many of the challenges of passing on firearms. It is essential that you meet with an Attorney experienced in these matters, such as Evan H. Farr, CELA, to set up a “Gun Trust” or any of the trusts described in this series.
The following are things to keep in mind when it comes to setting up a “Gun Trust”:
• It’s very important to put thought into the name of the trust, as it should not be changed once the firearms are transferred into the trust. If the name is changed, then the firearms have to be registered again in the name of the new trust, and can cause another transfer tax.
• Once the trust owns the firearms, any of the beneficiaries of the trust are allowed to use the firearm, including minors. The Trustee is given the responsibility for insuring that the person using firearms has the capacity to use it.
• There are serious penalties for individuals possessing NFA Firearms without proper authorization and approval from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). If an individual is the registered owner of the gun, then that individual is the only person permitted to use or possess the weapon. It is a common misunderstanding that it is permissible to let others use or possess a gun as long as the owner is present. Such use or possession is an unapproved transfer in violation of the law. Unfortunately, the flexibility inherent in most standard revocable trusts could result in such a violation.
Firearms trusts are different than regular Revocable Living Trusts, as the revocation of the trust has to be approved by ATF, which must also approve the distribution of the firearms to beneficiaries. The fact that the trust is revocable means that the creator of the trust could revoke the trust, which would automatically result in unauthorized possession of a weapon registered to the trust. Or maybe the creator signed a Financial Power of Attorney (which usually accompanies a revocable trust in most estate plans) giving an agent broad powers, including the ability to revoke the revocable trust, also resulting in unauthorized possession.
There are many other potentially serious unintended consequences to transferring firearms to a revocable trust, including the additional liability the successor trustee takes on when attempting to follow the required legal procedures for seeking ATF approval for distributing the gun to the trust beneficiaries. Again, it is important to obtain competent legal representation in order to avoid these unforeseen hazards.
Firearms are unique assets that require an estate plan to be uniquely tailored to deal with them. If you already have an estate plan and long-term care plan, call the Fairfax Elder Law Firm of Evan H. Farr to review and update your plan accordingly. Ask about The Farr Law Firm’s Lifetime Protection Program, which ensures that your documents are properly reviewed and updated as needed, so that they will have maximum effect at law. If you don’t have an estate plan or long-term care plan, now is the time to get started. Call us today at 703-691-1888 to set up an appointment for a no-cost consultation.
Bill, Glenda, and Theresa are siblings. Glenda runs the family business and is married to a doctor. They have chosen not to have children. Bill is a teacher and his wife Sheila is a stay-at-home mom and they have two children. Theresa is the youngest of the three and is a caregiver for their father, Don, who has Parkinson’s and helps their mother, Elise, who has physical disabilities.
Most parents want to treat their children fairly in their estate planning, and many assume that means having their children inherit equally. But there may be special circumstances to consider before the family pie is divided into equal parts.
To demonstrate how fair doesn’t always mean equal, take our example above. Don and Elise may want to leave more to Bill who struggles to support his family on a modest teacher’s salary than to Glenda who married well and has chosen not to have children. Or, they may want to compensate Theresa who has given up part of her own life to care for them. Lastly, since Glenda runs the family business, they may want to leave the business to her and compensate the others with other assets and/or life insurance.
If you have children, when considering how to distribute your estate, not only do you need to decide what share each child should receive, but also when each child will receive full use of his or her share of your estate. Good estate planning means that the inheritance you leave to each child will stay in an asset protection trust for that child for the rest of his or her lifetime. If the child is fiscally responsible, the child can act as his or her own trustee and can make distributions to himself based on guidelines you provide, but assets that stay in the trust are protected from disability, creditors (such as bankruptcy and divorce), predators (those with undue influence on your child), and even long-term care expenses down the road. If the child is not yet fiscally responsible, then someone else would typically act as trustee until the child reached a suitable age of maturity.
If you are quite wealthy, you may want to leave your children enough that they can do anything they want, but not so much that they will do nothing at all. You don’t have to leave everything to your children. If you have sizeable assets, you can set up trusts for your grandchildren and future generations. You can also make contributions to charitable, educational and religious organizations.
While more than 50% of Americans feel it is important to leave an inheritance to their children and other beneficiaries, the majority (more than 120 million Americans) have not yet made any plans for their estate. Overlooking estate planning results in many wasted dollars and hours of frustration and emotional hardship each year that can be minimized with advanced planning and action.
If you do not have a properly-drafted trust-based estate plan when you die, the law will step in and force your estate through the nightmare of probate, a complex, time-consuming, expensive and emotionally draining process that most people would not wish on a beloved family member. A trust-based estate plan should be an essential part of your lifetime planning. For peace of mind, the time to address or update your estate plan is now. Call the Fairfax Elder Law Firm of Evan H. Farr, P.C. today at 703-691-1888 to set up a no-cost consultation.
Q: My parents are in an independent living home in Virginia. I recently read a story about a nurse who refused to give CPR to a dying woman at a California independent living home. Was she legally right to refuse giving CPR and could this happen in Virginia?
A: The unfortunate story that occurred at Glenwood Gardens in California is disturbing on many levels and raises important legal and ethical questions for debate and review.
Starting with the issue of the facility type first, Glenwood Gardens and the place where your parents are staying are Independent Living facilities. Independent living facilities may consist of fully contained apartments or even stand-alone residences and are sometimes called retirement communities. Some facilities have communal dining rooms and provide housekeeping and laundry services, and while many have emergency call buttons in the apartments, typically there are no nurses or medical professionals on staff. The residents are presumed to be able to fully care for themselves.
In Virginia, Independent Living facilities are not licensed and not subject to any of the licensing regulations that apply to assisted living facilities. The facilities are therefore free to create their own policies regarding handling of emergencies.
In the Glenwood Gardens situation, there is conflicting information regarding whether the facility employee is a licensed nurse or not. If she is a licensed nurse her duties and obligations may be different than if she is not. In addition, her obligations may also depend on whether her position with the company was specifically as a nurse who was expected to render medical care to residents. Since this is an Independent Living facility it is unlikely that the course and scope of her position, even if she was a nurse, would include rendering emergency medical assistance.
Virginia, like many states, does have “Good Samaritan” laws (Code of Virginia – Section 8.01-225) to protect those who render emergency medical or nonmedical care at the scene of an emergency from civil liability resulting from any act or omission. However, these laws do not compel medical personnel to act in such situations, but simply provide encouragement to act.
This sad incident brings to light many ethical and legal issues. Choosing the best senior living situation can be tricky. Understanding the different types of facilities, their licensing, and the services provided is paramount to meeting the resident’s and family’s expectations. When choosing a facility it is important to understand the facility’s policies on emergency management. Also, before you decide on the best living situation for yourself or a loved one, make sure your Advance Medical Directives are complete and available when needed. This will ensure, in most cases, that your loved ones desires are communicated to physicians and loved ones, and that they take your preferred course of action regarding all forms of medical treatment.
An Advance Medical Directive (also called a Medical Power of Attorney or a Health Care Power of Attorney) authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so. This document includes provisions that used allow you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life artificially in the event of a terminal illness or injury. You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements. Your Advance Medical Directive should also set forth your preferences with regard to organ donation, funeral arrangements, and disposition of remains. Our proprietary Four Needs Advance Medical Directive(TM) contains all of these elements plus our proprietary Long-Term Care Directive, which addresses a host of issues that might arise if you wind up needing Long-Term Care.
In order to be easily accessible when needed, your Advance Medical Directive should be registered with an electronic archive service that can immediately fax the document to any desired destination. This firm will provide such registration service to you at no charge unless you would prefer that the document not be registered. Don’t have a Advance Medical Directive or planning in place? Call The Fairfax Elder Law Firm of Evan H. Farr, P.C. at 703-691-1888 to make an appointment for a no-cost consultation.
There are treatments available now that most families coping with Alzheimer’s or other dementia never hear about that can significantly improve their quality of life.
Called non-pharmacologic therapies (NPTs), these treatments do not come in a pill. Instead, NPTs such as personal counseling and occupational therapy-based strategies are proven to improve the quality of life for people with dementia and their families. NPTs support families and teach them the skills they need to protect their own health and cope with the intense demands of caregiving and help people with dementia stay independent and safe for as long as possible. Some of the NPTs currently used are proven programs that are actually more effective than any known drugs for Alzheimer’s disease.
One example of an NPT, developed at NYU, includes individual and family counseling to reduce conflict and improve communication among family members. Those caring for a spouse with dementia who received the NYU Caregiver Intervention were more satisfied with social support and less depressed, less bothered by difficult behaviors, had better physical health and were able to keep their ill spouses at home longer than those receiving usual care.
Another model developed at Thomas Jefferson University in Philadelphia, employs occupational therapists to assess the patient with dementia and identify preserved capabilities as well as the caregiver’s needs. Families are then provided with strategies to manage day to day care, such as communication techniques, safe-proofing the home, establishing daily routines and engaging the individual with dementia in meaningful activities. Families who participated have reported feeling more confident and less upset, and found that their ill family member functions better and exhibits fewer challenging behaviors.
Another NPT that is now being used is a stimulator device surgically implanted into the brain of a patient in the early stages of Alzheimer’s disease. The implanted device is seen as a possible means of boosting memory and reversing cognitive decline, and has already been used in thousands of people with Parkinson’s. The surgery involves drilling holes into the skull to implant wires into the fornix on either side of the brain. The wires are attached to a pacemaker-like device, which stimulates the brain with tiny electrical impulses generated 130 times a second. The patients don’t feel the current.
Lastly, another effective non-drug Alzheimer’s treatment used to jog memory is music. In nursing homes that use music, the personalized playlists are often meaningful songs chosen by loved ones. According to Alzheimer’s experts, music helps patients become more alert, more cooperative, more attentive, and more engaged. In many cases, even if they can’t recognize loved ones and they’ve stopped speaking, when the patients hear music, they “come alive”.
Geri Hall, a clinical nurse specialist at the Banner Alzheimer’s Institute, explains how music activates a part of the brain that stays active despite the dementia. “There is something about music that gets through to Alzheimer’s patients right up until the very end of the disease,” she said, adding that “familiar music from the past can help people with dementia feel at home. It calms them, increases socialization, and even decreases the need for mood controlling medications.” Read our blog post about Alzheimer’s and Music.
Alzheimer’s slowly robs its victims of a lifetime of memories and the ability to perform simple daily tasks. Instead of focusing on drug treatments, many of which have failed in clinical trials, it may be a good idea to try non-drug treatment options. These programs have been proven effective in randomized controlled trials. And, unlike drug therapy, there are no adverse side effects. There is also an economic argument to be made for better caregiver support. Nearly 11 million family and other unpaid caregivers provided an estimated 12.5 billion hours of care to people with dementia. This care is valued at nearly $144 billion. The country can’t afford the consequences of these caregivers becoming too burned out or sick to carry on. See our recent blog post about the rising cost of dementia.
Moving a person with dementia to a nursing home, while sometimes unavoidable, is expensive. The NPTs described have helped to delay nursing home placement for more than a year. Unfortunately, you cannot delay the inevitable forever, but what you can do is plan ahead for you and your loved ones. Do you or a loved one need nursing home care in the near future or are you looking to plan ahead? Call 703-691-1888 to make an appointment for a no-cost consultation at The Fairfax Elder Law Firm of Evan H. Farr, P.C. We can meet with you, access your situation and determine strategies for your long-term care plan.
0