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January 15, 2009
Planning for Eldercare
New Year's Resolution - Plan for Long Term Care
According to some sources, 60% of us will need long term care sometime during our lives. It is important for all of us to prepare for that day when we will need to help loved ones with elder care or we will need elder care for ourselves.
It is simply a fact of life to prepare financially for unexpected disasters by covering our homes, automobiles and health with insurance policies and to provide funding for our retirement. But no other life event can be as devastating to our lifestyle, finances and security as needing long term care. It drastically alters or completely eliminates the three principal retirement dreams of elderly Americans, which are:
1. Remaining independent in the home without intervention from others
2. Maintaining
good health and receiving adequate health care
3. Having enough money for everyday needs and not outliving assets and
income
According to the National Care Planning Council the majority of the American public does not plan for the devastating crisis of needing elder care. This lack of planning also has an adverse effect on the older person's family, with sacrifices made in time, money, family lifestyles and even affecting the family's or caregiver's medical and emotional health.
Because of changing demographics and potential changes in government funding, the current generation - more than ever -- needs to plan for long term care.
If you have spent time helping a parent or loved one cope with a disability resulting from aging, you know the frustration of balancing what you feel they need to do and what they want to do. Communication is strained at times, because after all, you are the child and they the parent, yet physically and mentally the rolls have changed.
When you make directives, assignments and arrangements in advance of needing elder care, then everyone involved can follow the prearranged care plan.
As an example, Jefferson Simpson wrote in his care plan that if dementia or Alzheimer's inhibited his mental abilities to communicate or recognize his surroundings, he wished to be in a respectable facility and only asked that he be visited and brought chocolates. To his children this request seemed silly at the time, but when his mental capacities did diminish, the instructions were there. No one had to wonder if they should try to take care of Father Jefferson at home and how they would do it. Without guilt or question they placed him in a respectable facility that took care of his needs. All they had to do was make loving visits, and of course they brought chocolates.
In order for Jefferson's simple request to happen, he had made financial, legal and personal long term care plans years before.
What do you want your children or friends to do on your behalf?
When it comes time for them to help, what if you can't say what you want because of a physical or mental disability? This is where a written long term care plan comes into effect.
Do you have a financial plan or long term care insurance? Retirement savings can disappear quickly when used for care services.
Where is your paperwork; insurance policies, living will, medical directives, Armed Services discharge or disability papers? Is there someone designated to know the location?
What are the legal documents that are needed for power of attorney, estate planning and disbursement of assets? When do they have to be completed?
What types of care services and facilities are available and what are the costs?
What will government programs pay for and how do you qualify?
There is a lot you can do now to put together a plan for your own long term care. You may have limited resources in the future or health problems that will inhibit your ability to take care of things you could do now. For example.
James and Cindy want to be able to stay in their home as they age. In order to do this, when they were in their 40's they took out a long term care insurance policy that will pay for home care if it is needed. The policy will also pay for nursing home costs as a care option. With taking the policy at a younger age and in good health the monthly payments are low. Extra funds can now be put away for retirement without worries of having to deplete savings for care costs.
Or consider Sarah's following experience:
After taking care of her own parents for many years, Sarah realized the importance of making, in advance, a plan and preparations for herself. She saw all of her parents' assets dissipated in order for her father to qualify for Medicaid nursing home coverage. She did not want the same thing to happen to her. She took the time to create her own plan on paper-- expressing her wishes for her own care. A trip to her attorney provided all the legal documents and estate planning she wanted to be in place to insure care for her and an inheritance for her children.
There is much to learn about long term care and there are a lot of new services and programs available to draw from.
The National Care Planning Council has gathered together an overall review of government and private long term care services both on the Council website, http://www.longtermcarelink.net/and in their book The 4 Steps of Long Term Care Planning.
The 4 Steps of Long Term Care Planning provides comprehensive information about long term care planning. The design also allows you to record personal information, family agreements and directions on 20 planning sheets at the back of the book. Using this book as a single-source repository for information and directions makes it much easier for you or your care coordinator to carry out your wishes when the need for care occurs.
Posted December 31, 2009
BUY-SELL AGREEMENT FOR PROFESSIONAL PRACTICES
AND CLOSELY-HELD BUSINESSES
© 2008 Heather K. Van Nuys
Van Nuys Law Office PLLC
Businesses that fail to plan an exit strategy for their partners or shareholders are simply asking for trouble. A buy-sell agreement should be implemented in every business. Eventually, everyone leaves a business, whether through death, retirement, or simply closing up the shop.
The death or disability of a partner or shareholder of a professional practice or other closely held business or entity can cause hardship or the financial ruin of an otherwise solid business. A properly structured buy-sell agreement will enable the remaining partners, members or stockholders to continue with the business and avoid costly litigation over disputes and money.
There are two main types of buy-sell agreements. The first one is the cross purchase agreement whereby the withdrawing partner or his/her heirs agree to sell his/her share to the remaining partners. The second type is the entity-purchase whereby the withdrawing partner or his/her heirs agree to sell his/her share to the entity.
If you died tonight, a buy-sell agreement could:
- Guarantee a buyer for your share of the business.
- Specify the payment plan or terms for the purchase.
- Utilize life insurance to fund a buy-out.
- Subject to I.R.S. rules the value of the buy-out might be binding
for the estate tax.
- Your spouse will be able to walk away from your business with cash in hand.
Methods of funding a buy-sell agreement
- Cash:
The cash method rarely works well because most people either have
their money invested or they don't have any.
- Sinking Fund:
The sinking fund method may not work if you or your partner dies
before a fund is accumulated. A sinking fund may also cause an
accumulated tax problem for corporations.
- Installment Payment:
The installment method might work, but it could be disrupted by
divorce, bankruptcy or some other unforeseen hardship.
- Borrowed Money:
This method might work if a bank is willing to lend the practice
money while the practice is down one partner, but this method entails much risk and stress for all parties.
- Life Insurance:
In most cases, life insurance is by far the best method to fund a buy-sell agreement. The deceased partner's share of the business will be bought out at full price for just pennies on the dollar invested.
Every buy-sell agreement is riddled with tax traps. You should consult an attorney knowledgeable about the tax implications before you enter into such an agreement.
Holiday Blues - Depression in the Elderly
Posted November 6, 2008
The holiday season is quickly coming upon us. If you are a caregiver for an elderly loved one, you may notice a change in your loved one's mood as the holidays approach. Perhaps you are one of many, who visit elderly parents and family during the holidays who live a distance away. When you visit you may notice that loved ones are not as physically active, or they show symptoms of fatigue or sadness and have no interest in the holiday or in their surroundings.
According to the National Institutes of Health; of the 35 million Americans age 65 or older, about 2 million suffer from full-blown depression. Another 5 million suffer from less severe forms of the illness. This represents about 20% of the senior population -- a significant proportion.
Depression in the elderly is difficult to diagnose and is frequently untreated. The symptoms may be confused with a medical illness, dementia, or malnutrition due to a poor diet. Many older people will not accept the idea that they have depression and refuse to seek treatment.
What causes depression in the elderly?
It is not the actual holiday that causes depression, but the fact that holidays tend to bring memories of earlier, perhaps happier times. Additional contributing factors that bring on depression may be the loss of a spouse or close friend, or a move from a home to assisted living, or a change with an older person's routine.Depression may also be a sign of a medical problem. Chronic pain or complications of an illness or memory loss can also cause depression. In addition, diet can also be a factor when proper nutrition and vitamins are lacking.
As an example, Selma’s husband passed away, a few months before Christmas. Her family lived close by and would call or drop in often to check on her. Selma seemed a little preoccupied and tired, but this was to be expected as she had been the caregiver for her husband for many years. It wasn’t until the family noticed that her holiday decorations were not out and her yearly routine of Christmas card writing was not happening that they began questioning her mental and physical well being.
A trip to her physician confirmed depression, caused by not only the loss of her spouse, but a vitamin B12 deficiency. There were both mental and physical reasons for her depression.
Symptoms to look for in depression might include:
- Depressed or irritable mood
- Feelings of worthlessness or sadness
- Expressions of helplessness
- Anxiety
- Loss of interest in daily activities
- Loss of appetite
- Weight loss
- Lack of attending to personal care and hygiene
- Fatigue
- Difficulty concentrating
- Irresponsible behavior
- Obsessive thoughts about death
- Talk about suicide
How do you know if it is depression or dementia?
Depression and dementia share similar symptoms. A recent article on Helpguide.org gives some specific differences:In depression there is a rapid mental decline, but memory of time, date and awareness of the environment remains. Motor skills are slow, but normal in depression. Concern with concentrating and worry about impaired memory may occur.
On the other hand, dementia symptoms reveal a slow mental decline with confusion and loss of recognizing familiar locations. Writing, speaking and motor skills are impaired and memory loss is not acknowledged as a being problem by the person suffering dementia.
Whether it is depression or dementia, prompt treatment is recommended. A physical exam will help determine if there is a medical cause for depression. A geriatric medical practitioner is skilled in diagnosing depression and illnesses in the elderly. If you are a care taker of an elderly person it may be beneficial for you to seek out a geriatric health care specialist.
Treating depression in older people.
Once the cause of depression is identified, a treatment program can be implemented. Treatment may be as simple as relieving loneliness through visitations, outings and involvement in family activities. In more severe cases antidepressant drugs have been known to improve the quality of life in depressed elderly people. Cognitive therapy sessions with a counselor may also be effective.As a care giver or family member of a depressed older person, make it your responsibility to get involved. The elder person generally denies any problems or may fear being mentally ill. You can make the difference in and remove the Holiday Blues from seniors suffering from depression.
The Geriatric Mental Health Foundation offers a “Depression Tool Kit.” To read more about the tool kit and depression in the elderly go to http://www.gmhfonline.org/gmhf/consumer/depression_toolkit.html
Living Trust or a Will - What is the Best Approach?
© 2008 Heather K. Van Nuys
Van Nuys Law Office PLLC
Should I have a Will or use a Living Trust? The popular word on the street is that people should use a "living
trust" instead of a Will. A living trust is the common name for a revocable inter vivos trust. That
means it is a trust established to take effect during the life of the person who creates it who can revoke it while he or
she is alive and competent. Many people are convinced they should use a living trust rather than a Will in order to
avoid probate. But, is that a good idea? How effective is the living trust?
For most people, these trusts are not necessary and have limited benefit. What's worse, many who enter
into revocable living trusts make the common mistake of failing to fund the trust properly so it ends up not working as intended.
A trust takes some particular care and feeding to accomplish the intended results.
Should I use a Living Trust to avoid probate? The primary advantage touted regarding revocable
living trusts is that it will avoid probate. Generally, this is true but people often have to probate some assets in any event.
In many states probate is very expensive. California is a prime example. By contrast, the probate in Washington
State is relatively inexpensive, especially if there are no significant complications.
What is probate? Probate is the legal process by which the title to your property will be transferred
to those people you wish to benefit upon your death. Probate is also the process by which your Last Will and Testament is
submitted to the court, and those having a legally-recognized interest in your estate have the opportunity to "contest"
your Will if they have a valid reason to do so. Probate is also the process by which your creditors must submit claims for
payment, which claims must be submitted within certain time limits.
if you do not have a Will, there is technically
not a "probate," but a similar process is followed in court. Since you have not designated who should inherit
your property the court will follows a State of Washington statute stating how your property will pass. Since there is no
Will, this process is called an estate administration, but this process shares many of the statutory rules and the process
is similar to the probate of a Will.
What property is subject
to probate? When you die, property you own or in which you have an interest will be subject to probate administration.
You most likely own some property or assets that will not be subject to probate because title to this property passes
automatically. Examples of "non-probate" property include:
1. Property owned as "Joint Tenants With Rights of Survivorship,"
2. Property subject to a beneficiary designation other than your "estate" such as life insurance, annuities, IRA's, other retirement plans,
3. Property with a "Pay on Death" or "Transfer on Death" designation (usually available for bank accounts),
4. Property subject to a Community Property Agreement that specifically states that such property passes to your surviving spouse upon your death,
5. Property titled in a revocable living trust.
How does a
revocable living trust avoid probate? A revocable living trust avoids probate because there is not any property
titled in your name upon your death. This holds true, however, only if you were careful to change title of all you
assets, transferring them to the trustee, before your death. For example, if John Doe establishes the "John
Doe Revocable Living Trust," and transfers title to all property owned by him (e.g., real estate, bank accounts, stocks,
cars) to the "John Doe Revocable Trust," then upon John's death, he doesn't own any property-his trust does-and
thus probate is avoided. The trust would provide for how property will pass upon John's death.
Probate avoidance sometimes is an important goal. For example, if John Doe owned real estate in other states,
his estate could be subject to probate in multiple states. Even though Washington's probate process is very streamlined
and flexible, other states have probate processes that require mandatory attorney, executor and appraisal fees and require
extensive court supervision.
Further, if you are concerned about your Will
becoming a public document, then avoiding probate may be an important goal to you. Finally, if you are already
assisting an elderly parent with his or her financial affairs, your parent may find a revocable trust to be a convenient means
by which to manage your parent's assets and pass the assets to your parent's beneficiaries upon death. If your
parent named you as trustee you would have the power to manage the assets in the trust.
Are you really avoiding probate? Continuing with the John Doe
example from above, if John failed to re-title all of his assets into the name of his trust, or if he later purchased property
in his own name instead of the name of his trust, then a probate may nonetheless be necessary.
Washington probate. Probate in Washington is a very
streamlined process compared to some states. For example, in California, there are mandatory attorney and appraisal fees.
Further, some states closely supervise the administration of an estate, thus adding to the cost. Washington has what
is called "non-intervention" probate, meaning the court does not intervene with a high level of scrutiny.
If your Will states you want the executor to serve with "non-intervention
powers" then the court will likely step back and let the executor do all that is necessary to administer the estate,
usually without need to return to court for approval. This does not mean that the executor is free to do what he or she pleases.
On the contrary, the executor owes special duties to the beneficiaries, and the beneficiaries may bring any questionable activities
to the attention of the court.
However, assuming a normal estate administration
with a diligent executor and cooperative beneficiaries, probate administration in Washington is very reasonable. You will
need to consider the cost of establishing and maintaining a revocable living trust as that cost is weighed against the cost
of preparing and probating a Will. In both cases, upon death, there are costs associated with valuing, reporting
and transferring the assets. With a revocable living trust there is the additional cost of initially transferring
the assets to the trust to avoid probate. Further, using a probate administration there a clear deadline for potential
creditors to try to collect money from your estate. Generally, there is a very short period of time, two to four months,
for creditors to file their claims if the appropriate notices are given in a probate-type procedure. Otherwise, creditors'
claims could pop up many years after your death.
Estate
tax savings. Some people believe (or are led to believe) that establishing a revocable living trust
will produce estate tax savings not available otherwise. This is simply not true. The methods available to take advantage
of both spouse's exemptions to federal estate tax may be utilized in a set of Wills or a revocable living trust. There
are other special types of trusts used to reduce estate tax, and those Wills are irrevocable, meaning that once you
establish them you cannot revoke or change them. Two popular examples are the charitable remainder annuity trust and
the irrevocable life insurance trust.
Reasons to consider establishing
a revocable living trust. If you have any of the following circumstances or concerns, a revocable
living trust-either in addition to a Will as your primary planning instrument or in lieu of a Will as your primary planning
instrument-may be right for you:
1. You own out-of-state real estate (including most interests in timeshare condominiums);
2. You are very concerned about privacy (you may be in a "non-traditional" relationship and do not want certain family members knowing the particulars of how your property is passing; you may be a public figure); or
3. One or more of your children or some other trusted person is actively assisting you with your financial affairs.
Are there other reasons to use a trust? One of the
advantages of using a trust is that you can have more control over the way income and assets are distributed to your chosen
beneficiaries. For instance, you may think your son is a bit irresponsible now and you think it wiser to distribute
his share at various stages in his life, such as a third at age 25, a third at age 30 and the balance at 35. Or, you
may want to give your daughter an incentive to attend college by withholding her inheritance until she receives her degree.
You can accomplish these goals using a trust. But, you have the choice of having the trust be part of your Will, or have the trust stand alone as a Living Trust.
Sometimes the best approach is to have both a Living Trust and a Will, with the Will handling the odds and ends that are overlooked in the Living Trust. You can have your Will dump left-over assets into your Living Trust. This is called a "pour-over" Will.
Trustee’s Duties After Death of Grantor/Beneficiary
© 2008 Heather K. Van Nuys, Van Nuys Law Office PLLC
What are the Trustee’s duties following the death of the grantor/beneficiary?
While many of a trustee’s duties in settling a trust are similar to those of an executor, certain formal requirements necessary to probate a will and handle an estate can be avoided.
There are three main duties of the trustee:
(1) Assembling the assets of the trust;
(2) Paying debts, expenses and death taxes; and
(3) Distributing the assets to the beneficiaries.
Assembling the Trust Assets
In most cases, it is easier to assemble the assets of a revocable living trust than an estate, since all property held in trust must be clearly identified as such. For example, a bank account or stock held in trust by the grantor as trustee for himself could be titled “Stanley Jackson, Trustee, U/D/T dated April 2, 2005, F/B/O Stanley Jackson.” If the grantor has named a different trustee, then the assets would be titled “Sally Johnson, Trustee, U/D/T dated April 2, 2005, F/B/O Stanley Jackson.”
Some attorneys or institutions use different wording, but the main features are consistent: naming of the trustee, the date of the execution of the trust and the beneficiary. The designation F/B/O means “for the benefit of” (or “for and on behalf of”), and the U/D/T means “under deed of trust” (or “under declaration of trust”).
There are trust assets that can be titled in an individual’s name during his or her lifetime and at death are payable to a beneficiary. For example, Uncle Stan might have owned a $100,000 life insurance policy, payable to “Sally Johnson, Trustee, U/D/T of Stanley Jackson, dated April 2, 2005.” Other assets paid to beneficiaries at a person’s death can include IRAs, pension and profit-sharing plans and other work-related benefits. (But there are very important tax consequences which must be considered by tax counsel.)
It is possible that the trust records contain no information concerning these assets, so it is necessary for you to have access to the grantor’s personal records and to work closely with the executor of the grantor’s estate to make certain that the trust receives all of the benefits to which it and its beneficiaries are entitled. You then file claims for all of the benefits and proceed to collect the other identifiable assets of the trust.
For accounting, and especially for tax purposes, you need a date-of-death balance sheet indicating the value of all trust assets at the grantor’s death. You therefore have to contact banks and stockbrokers for a breakdown of the decedent’s assets held with their institutions, including date-of-death balances for each bank account and security. If the trust is the owner of real estate, obtain appraisals of any real property as well as any personal property in the trust at the decedent’s death. Also obtain all past checking accounts of the trust and copies of all fiduciary income tax returns filed by the trust during the grantor’s lifetime. If any prior accountings had been made to the beneficiaries, you should have this information as well.
Payment of Debts, Expenses and Death Taxes
Because the grantor had the right to revoke the trust at any time prior to death, the federal and state governments impose death taxes on the trust assets (See chapter 6). You must be familiar with the deadlines for filing these returns, and with the death tax laws of the trust’s state (determine whether there are discounts for early payment).
You are also responsible for the payment of any outstanding obligations of the trust, including fees, commissions, and expenses incurred in the administration of the trust assets. It’s also possible that trust assets will be needed to satisfy obligations of the decedent’s estate. Therefore, coordinate your activities with those of the executor of the estate (of course, the trustee can be named as executor).
Distribution
When you are satisfied that all of the assets of the trust have been identified, assembled and correctly inventoried, and all outstanding obligations have been satisfied, prepare an accounting of receipts and disbursements and then make distribution to the beneficiaries. This presents you with two major decisions: (1) How formal an account is necessary, and (2) should you file the account in court in order to be formally (and legally) discharged of your duties and responsibilities?
In a close family situation, where the composition of the trust is not complicated, the size of the trust is relatively small, and the relationship between the trustee and beneficiaries is a good one, an informal account and distribution on the signing of a release can be used. This simplifies the distribution process and avoids publicity.
However, if you have any concern about potential outstanding obligations of the trust (such as future income tax problems, a federal estate tax audit, or conflict with the trust’s beneficiaries), then file a formal court accounting. Send notice of the accounting and the date it will be submitted to the court (certified mail, return receipt requested) to all beneficiaries and other interested parties (according to local court rules), so they will have the opportunity to appear in court and present any objections to the account and proposed distribution.
Once the account and schedule of distribution have been approved by the court, you can be formally discharged from your duties. In many instances, it is advisable to hold a certain sum in the trust for a period of time after distribution, in the event of any additional claims against the trust following distribution (a future audit of income tax or estate tax returns might indicate a deficiency).
Instead of an outright distribution to beneficiaries, the trust may have provided for the trust to continue after the death of the grantor for a certain period of time (for example, until the beneficiaries reach their twenty-first birthday). It is then necessary for you to continue to hold the funds allocated to these trusts in further trust for the beneficiaries and continue to administer the trust until the indicated distribution date. At that time, you can make distribution to the beneficiaries in a manner consistent with the above provisions.
The information in this web site does not constitute tax advice and cannot be relied upon to avoid tax penalties.
Consult with an attorney about your specific situation. The Van Nuys Law Office PLLC provides attorney services for wills, trusts, estate planning, probate, powers of attorney, and mediation in the Seattle area.
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