Orlando Estate & Elder Law

Leave Sibling Rivalry to Your Lawyer

“The problem is that my parents want to designate me as their power of attorney, for both health care and financial decisions, since I live in their community. Unfortunately, my siblings feel slighted.”

The reader who posed this scenario is not alone in facing siblings who live far away but feel like they are not being included in their parent’s plans. For this family, one sibling lives 500 miles away and another lives 800 miles in the opposite direction. The one daughter who lives in the same community is the logical choice for power of attorney. What can be done?

According to the Faribault Daily News article “Attorney can smooth path for families making legal plans,” the problem likely has its roots in sibling rivalry, since it’s an emotional response to a sensible decision.

The parent’s foresight in updating their estate plan and related legal documents is to be congratulated. The one adult child who lives in their community is the best choice for power of attorney for medical and financial decisions so they can quickly handle an emergency situation.

The parents have assigned the other two adult children as secondary POAs and everyone has already been informed that they will all receive equal shares in the estate. The out-of-town siblings should be happy at how fairly and expeditiously their parents are taking care of in these matters.

Adults need someone to be named to handle health care and financial decisions if they become incapacitated and need someone else to make decisions. Having a POA puts others in place to take over any tasks. Having a secondary POA designates someone to step in if the primary is unable to act.

When someone choses a POA because they don’t want to hurt any feelings, the result is often disastrous.

Some states also allow what is known as a “co-agent.” so that decisions are made together. But in an emergency, if the other person is not immediately present and time is an issue, this can lead to critical situations being unresolved.

One way to soften this kind of situation is to have the entire family meet with the estate planning attorney in a family meeting. With a professional who is not emotionally tied to the family dynamics, decisions can be explained and cooler heads may prevail.

If you’ve been putting off making decisions about your estate plan because of worries about hurt feelings, make an appointment to meet with an estate planning attorney and discuss speak a family meeting. There are few scenarios that experienced estate planning attorneys haven’t seen. They will know how to handle it best, so that your plan is completed, your family is protected and hurt feelings are soothed.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Faribault Daily News (August 28, 2018) “Attorney can smooth path for families making legal plans”

‘LOVE’ Does Have To Do With It

“A judge is being asked to order a variety of groups to provide any records of his assets. The estate of Indiana, who died in May, is initially estimated to be worth $50 million.”

Eight attorneys representing individuals and organizations connected to the late artist Robert Indiana, creator of the iconic “LOVE” sculpture, are asking that future hearings be held in closed sessions to protect people’s privacy and the value of some of his works of art, reports Press Herald in a recent article titled “Attorneys want hearings on the value of Robert Indiana’s estate held behind closed doors.”

Atty. James Brannan, who represents Indiana’s estate, is requesting information in a testimonial hearing to better determine the estate’s value.

 Due to the disagreement, Judge of Probate Carol Emery postponed the testimonial hearing and set a new date for a hearing in mid-September. The first scheduled witness will be Indiana’s caretaker, Jamie Thomas.

Brannan has petitioned the court to order Jamie Thomas, the Morgan Arts Foundation, Michael McKenzie and American Image to provide documentation on any assets they may have, that belong to the estate, including contracts for royalties.

The attorneys representing Thomas said he’s concerned about confidential matters becoming public. The judge has asked attorneys to file arguments on how she can justify closing the proceedings. It’s not easy to do, because of the First Amendment.

The attorney said the publication of information about where pieces of art are located would create a safety issue and information about the number of existing artworks could have an impact on the value of pieces that are up for sale.

Indiana’s will wanted proceeds from the estate to be used to restore his home to museum quality and serve as an art environment that would be open to the public for classes and lectures, and to preserve his collection and the property itself.

The will directed that Jamie Thomas be the executive director of the museum.

The Maine Attorney General’s Office is monitoring the disposition of the estate because of its size and  since a large portion of the estate was set to be given for a charity.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Resource: Press Herald (Aug. 7, 2018) “Attorneys want hearings on the value of Robert Indiana’s estate held behind closed doors”

A Second Marriage Thanks to Alzheimer's

People who suffer from Alzheimer's disease do not suddenly forget everything. Instead their memories fade over time leading to some unique situations, as the story of one couple in New Zealand illustrates.

Alzheimer's works in ways that cannot be predicted. What memories will disappear and when they will disappear can often seem random.

Michael Joyce of New Zealand suffers from Alzheimer's disease. He had been married to his wife for 38 years and eventually the disease progressed enough that he forgot he was married. In most cases, this would be a cause of deep pain for Joyce's wife.

It is not easy for family members when patients forget something that important. In this case, Joyce remembered that he still loved his wife and he asked her to marry him for what he thought was the first time.

The couple held a second ceremony as the Washington Post reported in "Husband with Alzheimer's forgot he was married to his wife of 38 years. He proposed, and they married again."

While this story ends on a heartwarming note, there is an important lesson here about how Alzheimer's disease works. People who get the disease cannot know what memories they will lose and when they will lose them, so they cannot afford to wait to make plans for dealing with the disease. Otherwise, they may forget something important before they fully plan.

People need to go to an estate planning attorney before that happens. That way they can make sure they have planned for their estates and their end-of-life care through powers of attorney and advanced medical directives.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Washington Post (Jan. 2018) "Husband with Alzheimer's forgot he was married to his wife of 38 years. He proposed, and they married again."

Checklist - Estate Planning After Divorce

If you get divorced, it is important that you revisit your estate plan to make sure your ex-spouse is excluded, if desired, and that what he or she would have received is distributed to someone else.

The U.S. has a high divorce rate. Nearly half of all marriages end in divorce.

The rates are even higher for second and third marriages. One of the issues concerning the high divorce rate is that people get distracted by the divorce itself and then fail to update their estate planning afterwards.

Ex-spouses are routinely left in many estate plans.

If an ex-spouse is mentioned in a will that was executed before the divorce, then in most instances the ex-spouse will be constructively written out of the will by a court.

However, that means that the deceased does not get to make a decision about where the ex-spouse's portion of the estate should go, and other legal instruments do not necessarily automatically exclude an ex-spouse.

Recently, the Wills, Trusts & Estates Prof Blog listed some things that need to be done after a divorce in "Don’t Let Divorce Distract You from Important Estate Planning Considerations," including:

• Any will that mentions the ex-spouse needs to be revoked or rewritten to strike any mention of the ex-spouse and distribute the estate to other heirs. If you have other estate planning instruments, such as trusts, those should also be reviewed.
• If an ex-spouse is listed as a beneficiary on insurance policies or retirement accounts, then those need to be changed. However, do not do so, if you were ordered to leave the ex-spouse as the beneficiary in a divorce agreement or judgment.
• If you have powers of attorney that appoint your ex-spouse to act on your behalf, then you should get new documents created to designate someone else.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Wills, Trusts & Estates Prof Blog (Jan. 11, 2018) "Don’t Let Divorce Distract You from Important Estate Planning Considerations."

Four States Opt for Uniform Power of Attorney Act

A new uniform law is soon scheduled to take effect which sets standards for people acting as agents under powers of attorney.  However, only four states have adopted the rules.

Appointing someone to act as a power of attorney is very important. If you ever become incapacitated and are no longer able to take care of your affairs, a power of attorney will let someone you trust take care of your financial matters.

However, powers of attorney have often been a source of conflict within families. This is especially true when the person appointed to handle matters is accused by other family members of acting improperly for their own benefit.

A new uniform law is designed to help end those conflicts as Financial Advisor discusses in "A New Uniform Act Guides Clients Dealing With Aging Parents."

The act has only been adopted by four states. There are concerns about the burdens it might place on children, who act as power of attorney for their elderly parents.

The law gets around the potential conflict by requiring agents to provide a financial accounting to other potential heirs.

People who are working full-time, taking care of their kids and assisting their elderly parents are concerned that they do not have the time or expertise to provide a detailed accounting of every last penny.

Despite some concerns, this law will soon go into effect in Texas, Wyoming, New Hampshire and North Carolina.

People acting under powers of attorney in those states should consult an elder law attorney so they know what their responsibilities are under the law.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Financial Advisor (Dec. 1, 2017) "A New Uniform Act Guides Clients Dealing With Aging Parents."

An Absolute Must for College Students

There is a lot to do when first preparing for college. One of those things that should be done is to visit an estate planning attorney to get a power of attorney drawn up.

It might seem a little strange or even morbid to suggest that new college students should see an estate planning attorney. When people go to college, they do not normally think that something bad could happen to them anytime soon, and certainly nothing that will lead to death.

However, there is nothing morbid about it.

People should see an estate planning attorney as part of their college preparations. If for no other reason, this should at least be done to get a power of attorney, as Financial Advisor points out in "College Students Need A Power of Attorney."

It is not that something will happen to new college students. However, it could. Consequently, it is best to be adequately prepared.

For most people, as they grew up, they never had to worry too much about what would happen if they had a serious accident.

If anything did happen, then their parents would be able to manage everything.

That changes once students turn 18 and are legal adults.

Parents cannot legally do things, such as take money out of a bank account to pay bills or make medical decisions, if necessary.

Therefore, how do parents get that legal authority?

The young adults in their life should sign powers of attorney giving them (or someone else) the ability to manage things, in the event there is an accident or illness causing incapacity.

While it is unlikely that it will ever be necessary, preparing for the possibility is a good idea.

For more information about estate planning for all ages in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Financial Advisor (Aug. 22, 2017) "College Students Need A Power of Attorney."

Important Lessons for End-of-Life Planning

When planning for your end-of-life care there are some important things to keep in mind beyond just having the proper legal documents in place.

You likely have heard that you need a durable power of attorney, a health care power of attorney and a living will in place for your end-of-life care. If you have not, then be advised that these documents are necessary for someone else to take care of your affairs when you are no longer able to do so and to let health care professionals know what treatments not to use to prolong your life when you have no hope of recovery.

Talk to an estate planning attorney to get these documents if you do not already have them.

Beyond those documents, however, there are a few other things that you need to do as Barron's points out in "Three End-of-Life Estate Plan Lessons."

The other tips include:

• If you have an estate plan, then it is important to let your family know what state you want to be in at the end of your life. Your estate plan should be tailored to the individual laws in your state. If you are moved to another state, the plan might not be as effective.
• You need to pick the strongest surrogates for your powers of attorney as possible. They need to be people who know how to handle things. They also need to be people who have the willpower to stand up to other loved ones who might disagree with the decisions being made.
• If you think your child might be overly emotional or too heartbroken, do not put that child in the position to tell the doctors when to remove you from life support. Pick someone else to do that.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Barron's (Nov. 8, 2016) "Three End-of-Life Estate Plan Lessons."

Estate Planning in a Few Manageable Steps

Creating an estate plan can seem like a daunting task for many people, but if you break the process down into the basic steps, it does not seem as challenging.

Sometimes people do not get estate plans because they think it is too difficult, that there is too much to do and that they do not know where to get started. However, for most people the process is not difficult, if they will just get started and take things step by step.

Recently, Go Banking Rates suggested a 10-step plan in "Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan."

For many people simply following these steps with the help of an estate planning attorney will be enough to create a solid estate plan:

• Get a general durable power of attorney so someone can manage your finances if you are unable to do so.
• Get a power of attorney for health care as well so someone can look out for your medical needs.
• Create a living will so doctors and hospitals know what procedures you want them to use or not to save your life.
• Create a will to decide who will get you possessions and take care of your children.
• Create a living trust so most of your assets do not have to go through probate.
• Write out instructions for your funeral if you wish to do so.
• List all of your accounts and important legal documents so your executor knows what to look for.
• Plan for your pets to be cared for if you have any.
• Make sure someone can access your digital accounts after your pass away.
• Review your plan every year to make sure it is up to date.

Don't leave your estate to chance, engage a qualified estate planning attorney to help you through the process.  I will be happy to assist with getting a plan for you that is a perfect fit.  Please schedule a consultation.

Reference: Go Banking Rates (June 22, 2016) "Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan."

Who Profits From the Sumner Redstone Maze?

The continuing battles over Sumner Redstone's competency in court and the media is not profiting shareholders in the companies that he owns, but someone is profiting from the situation.

The current fight over Sumner Redstone's competency and his decision to oust Viacom's CEO, Philippe Dauman, from his family's trust and holding company is something of a media circus and a three-way battle between Redstone, Dauman, and Redstone's daughter, Shari Redstone. The battle is not only being waged in court, but also in the media, both in the mainstream press and in the tabloids.

As it has been going on, Viacom's stock price has taken a severe hit to the dismay of shareholders. But, even if shareholders are not profiting, someone else is as the New York Post reports in "Sumner Redstone's legal saga has lawyers rolling in cash."

To the surprise of the judge in the case at a recent hearing 22 lawyers stood up to make an appearance. As costly as it is to have a lawyer appear in court, it is almost certain there is an even greater cost in paying all of the lawyers who did not appear in court but who are likely working on the case in the large law firms that represent the parties.

Public relations firms are also profiting from the situation as they have been hired to help control the narrative in the media.

A lesson to be learned from this situation is that it is extremely costly anytime an elderly person's competency has to be litigated in court. While it is unclear what could have been done differently to prevent the Redstone situation, many other competency battles can be prevented by making sure you have powers of attorney in place long before you might need them.

Consider the cost-savings of advance planning in your own family and make an appointment to discuss your options.

Reference: New York Post (June 11, 2016) "Sumner Redstone's legal saga has lawyers rolling in cash."

A Power of Attorney Is Not Always Enough

Everyone should get a general durable power of attorney. Everyone should also realize that they may need to do more than just that to protect their financial interests in the event of incapacitation.

A  durable power of attorney is a necessary part of any estate plan. In the event you become incapacitated due to age or illness the power of attorney gives someone else the ability to handle your affairs and make sure that your expenses are met.

However, increasingly banks and other financial institutions are refusing to honor general durable powers of attorney as the New York Times discusses in "Finding Out Your Power of Attorney Is Powerless."

The issue for the banks is that they fear being held liable if they accept the power of attorney document and it turns out that the person given access to a financial account is acting improperly. When someone shows up with a power of attorney and requests access to an account, the bank does not necessarily have a way to determine that the account holder is actually incapacitated.

Because of this concern, many financial institutions will not accept a standard power of attorney form and instead insist that their own house forms be used.

There are a couple of things you can do about this.

Before you become incapacitated, ask financial institutions that you do business with what their requirements are. If they require their own forms, then fill them out.

If you are the person who is seeking to use the power of attorney for an incapacitated relative and a bank refuses to honor it, then talk to an elder law attorney.  There are a number of things we can do to get any issues cleared up without having to go to court.

Reference: New York Times (May 6, 2016) "Finding Out Your Power of Attorney Is Powerless."