It seems that we’ve all had the supposed benefits of traditional retirement accounts pounded into our heads. And while they do have some benefits, they also have some downsides that no one ever talks about. Let’s take a look at the potential liability these accounts face.
Many states have laws that protect retirement accounts from lawsuits. Some states allow retirement accounts to been fully exempt from judgements. Others allow you to exempt only part of your retirement account. However, even if your state’s laws exempt the entire account from creditors, you’re not completely out of the woods.
Long-term Care
Long-term care is expensive. Many folks either 1) plan for using benefits ahead of time to pay for long-term care; or 2) end up using benefits after they’ve spent down all their money on long-term care. Obviously, planning ahead to qualify for benefits such as Medicaid to pay the cost of long-term care can help to preserve hard-earned money and property.
The thing about Medicaid or any other long-term care benefit such as VA Pension Benefits, is that they are “means based,” meaning that you can only have a certain amount of assets if you want to qualify. This tends to turn many people off and keep them from applying for a potentially helpful benefit because they assume they must be indigent to qualify.
That’s not entirely true. There are many assets you can keep e.g. a home, a car, life insurance, prepaid funeral etc., and still qualify. What most people don’t know, however, is that your retirement account is an asset that counts against you for long-term care benefit qualification. Thus, if you have a substantial amount of assets in your retirement account, you may be disqualified from having your long-term care paid for.
Not everyone is subject to the estate tax. In fact, your gross estate must reach a certain value at the time of death before it can be subject to federal estate tax–this is called the “estate tax threshold.” For the last few years, the estate tax hasn’t been a factor for most. However, the threshold is subject to being lowered and will be lowered in the very near future. This means that more and more folks could be subject to significant taxation of their estate before those assets pass to their loved ones.
I mentioned “gross estate” above. This refers to how the amount of assets one has at death are calculated to determine whether they are over the threshold. If your “gross estate” is over a certain amount (the threshold), you get taxed.
That begs the question of what assets are included in the gross estate calculation. Despite some misunderstanding to the contrary, your retirement account will be included in that amount. Therefore, if you have substantial assets in a retirement account at the time of your death, it could \subject your entire estate to taxation.
What makes Traditional Retirement Accounts Potentially Dangerous?
Let’s say you either need long-term care or you are trying to avoid the estate tax. In either instance, let’s say that you have substantial assets in a traditional retirement account. Based on your goal, you want to lower the number in that account. So, what’s the solution? You should move the money out of there, right?
Well, here’s the kicker. If you move the money, that means you must take it out of the traditional retirement account. And that means you must pay the tax on the money. Sounds scary right?
Here’s the thing, somebody at some point will have to pay the tax on that money anyway (maybe your child at a higher rate). If you move the money to something that can protect it, like a trust, then you pay the tax and get it over with. You also have the potential of qualifying for much needed long-term care benefits. However, if you wait, you could end up using the money in the retirement account to pay for long-term care while paying the tax everytime you make a payment to the facility. Furthermore, waiting could result in a hefty estate tax.
Traditional retirement accounts may not be the holy relics that they have been advertised to be. While they have their benefits, they are not without their flaws. If you have questions about retirement accounts and how to protect them, give the experienced attorneys at McIntyre Elder Law a call today 704-259-7040.
There are many things your power of attorney may do on your behalf. Depending on how the power of attorney document is drafted, your Agent under power of attorney can manage your finances, enter into legal contracts, manage your real and personal property, and much more.
Powers of attorney can even be written to allow your Agent to establish a revocable or irrevocable trust, to name beneficiaries on accounts and life insurance, and to establish right of survivorship in bank accounts and property. Thus, your Agent could have broad power to alter your estate plan or to establish an estate plan if you do not have one.
But what about a will? Can an Agent under power of attorney create or alter your will? The answer is no.
There are a few types of wills: oral or nuncupative wills, holographic or handwritten wills, and written and attested wills. Chapter 31 of the North Carolina General Statutes governs the creation of all types of wills recognized in NC. Each type of will mentioned above shares a statutory requirement for its creation. Specifically, they all must be spoken or signed by the testator. This requirement means that it is not sufficient for the Agent under POA to sign the will in lieu of the testator.
The more savvy among you may bring up the fact that Chapter 31 allows another individual to sign a will on behalf of the testator—this contemplates that the testator is physically unable to sign. However, this statutory provision requires that the individual sign the will on behalf of the testator in the testator’s presence and at her direction.
Furthermore, the person who signs the will at the testator’s direction need not be an Agent under POA. Thus, it is not the power of attorney that gives this person the ability to sign the will, it is the direction of the testator.
What about an amendment or codicil to the will. Whenever a codicil to a will is made, it must satisfy the same statutory requirements for execution as the original will. This means that the codicil must be signed by the testator or at their direction. Therefore, an Agent under power of attorney cannot unilaterally amend a will of another.
Powers of attorney can do many things; however, something that cannot be delegated is the creation or alteration of a will. If you have questions about powers of attorney or any other estate planning tool, McIntyre Elder Law a call at 704-259-7040.
This nation is aging. And, despite the fact, that the largest generations ever are heading into their twilight years, we as a nation have done little to prevent the exploitation of this vulnerable population. In fact, instead of protection, exploitation has become a systemic part of our treatment toward the elderly at large. If a senior is not being taken for everything they are worth through the cost of long-term care, they are strips of their rights through the court system.
This is an issue that affects everyone. Not just because it’s a civil rights issue. Not just because it could happen to your loved one. But because we all age and it could happen to you too.
Criminal vs Incompetent
Picture this, you’ve been charged with a felony. You quickly begin to become appraised of every right you have with respect to the criminal justice process. You have the right to have a trial to challenge the State’s evidence and demonstrate your innocence. You also have the right an attorney to guide you through the whole process. Your trial will be before a knowledgeable judge, whom was either elected or appointed based on their merit. This judge not only has a law degree but is also likely extremely knowledgeable on the finer points of law.
At the trial, the State has the burden to prove your guilt, beyond a reasonable doubt, for each charge. The State must, therefore, convince a judge or a jury of your peers of this alleged guilt. If the State puts on evidence, you have the right to face your accusers, cross-examine witnesses, and challenge the expertise of so called “expert witnesses” before they can give testimony. Additionally, during the trial, your attorney and the judge will ensure that the State strictly adheres to the rules of evidence i.e., your attorney will object, and the judge will rule on these objections.
Lastly, short of an ethical violation, your attorney has to do what you want, even if it’s not in your best interest. If you want to take a deal with the State, that’s your choice. Perhaps, you’d rather go to trial, also your choice. The attorney works for you because it is your rights that you are enforcing through her.
Now picture something else. You’re in your twilight years and your memory starts to slip a bit. Perhaps you desire to stay home as long as possible and avoid nursing home care. You or your family arrange a service to begin assisting you with certain activities in your home. After a while, one of the helpers makes an anonymous report to the State. In this report, they indicate that perhaps you are in a vulnerable position at home and should be receiving facility care.
The State takes this report seriously and launches an investigation. They come out and speak to you and also visit your doctor. Your doctor has known you for years, so the slight decline seems all the more exaggerated. The doctor confirms your memory loss and indicates that facility care may be needed.
A few days later, you get a visit from the Sheriff’s department, serving you with a lawsuit—the state is seeking Guardianship of you.
A Guardianship is the name for the process by which an individual is adjudicated incompetent and made a Ward of the state. Ostensibly, this is the process by which someone can be appointed make decisions on behalf of an adult that lacks the mental capacity to act for themselves.
The Guardianship process essentially strips the individual of all rights and liberties and gives the State the power to determine what is in the Ward’s “best interest.” Just like a defendant being charged with a crime, the Ward may be placed in a “facility” against their wishes. A Guardianship also goes one step further and gives the State power over all of the individual’s money and property. Given those facts, it seems like it should be a pretty high bar, right? The answer is an unfortunate: not so much. Let’s look at the rights given to an individual in this situation.
The Right to Trial
A hearing must be had before someone can be adjudicated incompetent. However, this hearing is very different than a criminal trial in many aspects. In many states, including North Carolina[1], the person before which the hearing is held does not need to be a judge, nor do they even need to have a law license or law degree. The hearing, typically held before an assistant clerk, is broken down into two phases[2].
Phase One
First, the court hears evidence as to whether the potential Ward (known as the “Respondent” at this point) is legally incompetent. The definition of legal incompetence is basically that the individual in question lacks capacity to make important decisions or manage their own affairs because of some underlying condition[3].
The Petitioner—the person bringing the petition (in this case, the State)—must prove the Respondent’s incompetence by “clear, convincing and cogent evidence.” This is what we call the “burden of proof” for the Petitioner. This standard is quite apparently lower than the “beyond a reasonable doubt” standard for criminal trials.
Phase one typically breaks down in the following manner. The Petitioner puts on evidence in the form of witness testimony. It is important to note, at this point, that while most rules of evidence strictly apply to Guardianship hearings, adherence to such rules aren’t strictly enforced by the Clerk (but more on this later). Thus, the witness testimony can be derived from any individual with personal knowledge of the Respondent’s mental capacity.
Next, the Petitioner submits some letter or sworn statement from a physician as to the competency of the Respondent. The physician is not required to be present at the hearing for this statement to be admitted. Most of the time, it’s a letter on the physician’s letterhead stating their diagnosis in a small paragraph. Just a letter with a signature, no notary, no penalty of perjury. Further, the physician does not even need to have evaluated them for the purposes of determining their competency. They could just be their regular general physician who may have observed them relatively lately.
After the Petitioner puts on all their evidence, the Respondent has the right to question/examine the Petitioner’s evidence, that is, if the Respondent is present. You read that correctly. A Guardianship hearing, one that is just as effective as a criminal hearing at deprivation of liberty, does not require the Respondent to be present.
Phase Two
After the Petitioner presents their case as to incompetency, the Clerk rules on whether or not the Petitioner has met their burden. If the Clerk finds the Respondent incompetent, the next phase is all about picking who the Guardian should be. If the State is bringing the Petition, this is simply a formality, unless challenged by family. If family bring the petition or choose to intervene to try and become the Guardian, they must give testimony. Typically, this results in a brutal and invasive grill session by the Petitioner or the Court.
Again, the Petitioner may or may not be present at the hearing. Even if they are present, they may or may not be questioned or get to testify on their own behalf, for either proving their competency or choosing their Guardian.
The Right to an Attorney
For every Guardianship case, the Court appoints a “Guardian ad Litem (GAL).” Essentially, the GAL is a neutral third-party attorney who is tasked with investigating the allegations in the Petition and giving a report to the court, giving a recommendation as to competency[4] and who should be appointed Guardian.
Now, it’s a really weird, arguably unconstitutional, position that the GAL is in. The GAL is like a quasi-counsel for the Respondent. The GAL is tasked with “representing the best interests of the Respondent/Ward[5].” This is where things start to get odd. The “best interest” of the Respondent may be miles away from what the Respondent wishes. This means that, unlike a counsel in a criminal trial, your “attorney” can make decisions on your behalf despite whether you want them to or not. In fact, the GAL can be totally aligned with the Petitioner and, therefore, in a totally adversarial position to their wants, desires, rights, and liberties—yet, somehow, they represent them.
Even weirder, the GAL, in many cases, acts on behalf of the Respondent and decides whether or not they should show up to the hearing or be heard before the court. This is a lot of power for someone representing another person whom, ostensibly, has rights. That leads me to the weirdest part of all: the GAL can make these decisions on behalf of the Respondent before they are adjudicated incompetent. Thus, the GAL has the right to treat the Respondent as a Ward of the State long before the Petitioner has met their burden.
Outside counsel may be obtained by a Respondent. However, this part gets weird too. Despite the availability of the Respondent to hire outside counsel, it rarely actually happens. Typically, that’s because the GAL tells the Respondent that they represent them, leaving out the small detail about being able to totally act against the Respondent’s interest.
Smoke in Mirrors
There is a concept in the law that looks at the substance of a thing over its form. This means that something may seem to be one thing in name but is another in its function. A prime example is a corporation. A one-man shop with no board meetings, no separation of funds, and no separate officers may be called a “corporation”; however, it’s a sole proprietorship in its operation. Something similar is going on in the law regarding Guardianships.
One of the reasons Guardianships do not present as a civil rights issue at first glance is because the law regarding Guardianships seems to provide all the necessary safeguards. How this law is applied, however, is the issue.
Substance Over Form
Walk into any Guardianship hearing in the United States and you’ll be able to witness this the contrast between the substance of the law and the actual form in which these things go down. If you’ve ever witnessed another type of trial in-depth, a Guardianship might seem foreign to you. This is because the hearing has all the pomp and circumstance of a real trial but it’s the wild west out there.
Let’s dive deeper into this by looking at some the protections that must be invoked by the Respondent, if invoked at all. A Respondent can potentially require expert testimony, they can request a jury trial, the can subpoena evidence to bring to court on their behalf, and they can even question the physician as to their expertise and knowledge of the client. Here’s the problem. The rights must be invoked by the Respondent or someone representing the Respondent. It is rare that the Respondent is represented by outside counsel, so that means it falls on either the GAL or the Respondent to invoke these rights.
In consideration of that fact, it is important to note that, even if the Respondent doesn’t have some diminished capacity, they would still likely be unaware of their rights without outside counsel. This is because: 1. They are likely not an attorney themselves; and 2. The GAL isn’t going to tell them their rights. Remember, the GAL is in that weird quasi-counsel position. Typically, the GAL has already made a determination as to competency based on evidence in the file and just goes out to speak with the Respondent to confirm it.
It is at this point that one may think: “well, if they’re truly incompetent, then what’s the problem.” But, that type of thinking is exactly the problem. An individual, despite their level of diminished capacity, should be given properly legal counsel as to the extent of their rights—the same as a defendant, regardless of whether or not they committed the crime. The GAL shouldn’t be able to play judge, jury, and executioner by withholding information. However, they have been given free rein to do so because they are held to a different standard than other counsel.
Application of the Rules of Evidence
The rules of evidence are extremely important. These rules are the gate keepers of what is and what is not allowed in a hearing/trial. These rules keep the judge or jury from hearing things like irrelevant evidence, hearsay, and speculation from a non-expert. These rules keep the court strictly focused on the truth and on the matter at hand.
The rules of evidence apply to Guardianship hearings. However, they are “relaxed.” This relaxation of the rules of evidence provides a number of issues. 1. The relaxation seem to be for no other purpose than to compensate for using a clerk, whom was likely never formally educated on the rules of evidence (note: that regardless of whether a trial is a bench or jury trial, the judge rules on evidence). 2. The relaxation of the rules allow for an inconsistent application of evidentiary rules. The term “relaxation” doesn’t provide any bright-line guidance for how the rules are to be relaxed. Thus, the result is an arbitrary and capricious application of the rules of evidence, which make the hearings unpredictable, unequitable, and infuriating. 3. Finally, the most obvious problem with relaxing the rules of evidence is that the rules are there for a reason. They keep the bad stuff out and thereby protect the rights of the Respondent. A relaxation of the rules of evidence is just another manner in which the Rights of the Respondent are patently ignored.
Let’s put this in context by looking at a hypothetical example. Let’s say that a Petitioner is attempting to submit evidence of the Respondent’s alleged incompetence. To do so, they present a letter from the Respondent’s physician, on her letterhead, with her signature[6]. This letter is the pivotal piece of evidence that will determine the clerk’s judgment regarding incompetency. It’s also technically inadmissible hearsay.
In any other hearing, that letter would be thrown out of court, followed shortly by the judges’ admonishment for the attempt to bring it in. However, in a Guardianship hearing, this is the key that will sway the clerk in her decision.
Other Considerations
The impact of the relaxed rules of evidence cannot be overstated. One of the benefits of the rules of evidence is that it gives the judge a clear indication of what priority to give information flowing in. If the information is not admissible based on the rules, it gets ignored. If these rules are relaxed, the waters get muddied. The product of this relaxation is that the Clerk is inundated by a barrage of information, most of it being inadmissible or irrelevant to the issue at hand.
There’s an old Chinese saying, “muddy waters make it easier to catch fish.” A relation of the rules of evidence allows a Petitioner to stir the water, blinding the parties and confusing the issues. A Guardianship, more than any other type of hearing, gives the Petitioner the opportunity to mislead or straight up gaslight the court.
Imagine you start a basketball game, and the referee doesn’t know all the rules of the game. The beginning of the game may seem fine, but when it gets down to the critical calls, the lack of expertise will become abundantly clear. Guardianships are similar. Clerks can be knowledgeable and can handle certain legal procedures just fine; however, when the rules of evidence get in depth, the process starts to go haywire. Unfortunately, those are precisely the moments where an expert on the law is needed.
Intervention by Family
If the State seeks Guardianship of someone, the family may intervene. In fact, the family is given notice of the petition as required under statute. This, again, is one of those things that looks like may be a hurdle or may ensure the rights of the Respondent, but it’s misleading.
The family is given notice so that they may be heard by the court on the issue of who should be the Guardian. But, just showing up to court to testify won’t necessarily allow a family member to prevent the Respondent from being adjudged incompetent. Furthermore, the testimony from the family can be ignored by the Clerk. There is nothing saying that the Clerk must give any sort of weight to their testimony.
This is misleading because in any other matter in which a person is not a party, they don’t have a right to show up and be heard without intervention. If grandparents of a child want to testify in a child custody case, they must be called as a witness by one of the parties or be made a party to the case. They can’t just show up and speak to the court.
The weird part about a Guardianship, is that the family (next of kin) must be given notice but aren’t made a party to the action. That’s like asking the grandparents in a custody case to show up but not letting them assert their potential rights regarding the child, whether or not they’re the child’s caretaker.
To actually become a party to the case, the family member must 1. File a motion to intervene or 2. File their own petition for guardianship. Here’s where it gets even more muddy.
i. Intervention vs Petition
If a family member wants to become a party to the case, they have to consider whether to intervene[7] or to petition the court. If the family member decides to bring their own petition, they’re not only stipulating to the issue of incompetence, but they’re also asserting their own allegations of incompetence. This is because the petition is specifically a “petition for adjudication of incompetence and application of letters of guardianship.” So, by bringing the petition, the family member is essentially making the same allegations as to incompetency as the original Petitioner. Thus, if the family member wants to fight the issue of incompetency, and perhaps become the Guardian if they fail, they must intervene.
The problem with intervention is that it’s rarely done. Because intervention is rarely done, many clerk’s offices have no idea what you’re trying to do and whether it’s proper. Many offices will simply tell the family member that the must file a petition to become a party. The family member may win on this issue but it’s more time, delay, and legal fees.
Statutory Priority
Another concerning substance over form issue is the statutory priority of whom should be appointed guardian. In the statute, it lists individuals by priority, family being given the top priority. Again, this seems like an awesome safeguard to ensure that Ward’s keep as much as their dignity as possible by having a close family member act on their behalf.
However, this statutory priority can be totally ignored by the Clerk because of a catchall provision found in many of the Guardianship statutes. This provision basically allows the Clerk to dispense with the priority if she finds that doing so is in the Ward’s best interest. In other words, the Clerk is given full discretion.
The most apparent problem with this bait and switch of a statutory provision is the opportunity, once again, to deprive the Respondent/Ward of their rights. The family member may, in fact, not be the right person to be the Guardian. However, many times, the family member may be more willing than a third party to consider the wishes of the Ward.
One of the reasons why no one is talking about the danger of adult guardianships is the substance over form issue. They seem to be chalked full of protections similar to any criminal proceeding or other action that could result in deprivation of liberty. However, the way that it plays out is much different. The gravity of this particular danger is that it prevents meaningful change. A legislative body is likely to not see the real issue if the read the law as it is. Just like any other insidious problem, it must be witnessed in action to truly comprehend it.
Arbitrary and Capricious
Magic, specifically the kind done on stage, is impressive because it tells you one thing and does another. The tricks and illusions are most effective when you think you know what’s going to happen and surprise! Your card was under your hat all along.
Similar to the trickery of a magician—and the substance over form issue discussed above—is the “best interest of the Ward standard, which applies both before and after a Guardianship is in place. This standard seems to provide a safeguard but actually fails where it’s important. Ostensibly, it appears on its face to require that all involved must act in the Ward’s best interest. However, in practice, it’s a standard that allows for the rationalization of actions just so long as they can be present as meeting the standard.
Best Interest of the Ward Standard
If this standard seems vague an overly broad, it’s because it is. It is important to understand that vagueness in the law gives someone lots of power. In constitutional law, if a law is written in a manner where it may be vague or may apply in an all-encompassing manner, it is stricken down. This is because it is known that these types of laws give the government more power than they should be allowed. After all, if I wanted to pass a law where I could affect your rights, you bet I’d make it as vague and overly broad as possible. That way, your actions, that I’d like to control, will more than likely fall under my law.
Another problem with a vague standard is the opportunity for an inconsistent application of the standard. One Clerk’s definition of the Ward’s best interest may indeed not be within the ballpark of another’s. This gives each Clerk extremely broad power to decide this standard without factors or guidelines. That’s an important point because, if their decision is appealed, how does one show that they abused their discretion? Without factors or guidelines, what is the basis for proving that the Clerk got it wrong? The absence of the ability to demonstrate the wrongful actions of an individual, is just a long way to say that they have power.
The Best Interest vs The Ward’s Wishes
What makes it worse is that the standard is a clear delineation from the wishes or desires of the Ward—even if those desires were expressed when the Ward was competent. This standard allows a Guardian to act in a manner that is blatantly contrary to the Ward’s clearly defined wishes if they can someone how spin their actions as fitting the standard.
In other areas of law, if someone creates an estate plan, which clearly defines their wishes, that document encompassing their wishes has a lot of weight. Let’s say that someone creates a will—we’ll call him “Bob”. In this will, they leave everything to their wife and child. At the same time, they made their brother their power of attorney. Later on, that brother uses that power of attorney to put the home and money in his name just before Bob’s death. If the wife and child decide to challenge brother’s use of that power of attorney, they’re going to point toward the will. The last will and testament will serve as a compelling piece of evidence in their lawsuit, which would very likely demonstrate that brother’s actions were an unlawful departure from Bob’s wishes.
This precedent gets all messed up when a Guardianship is in place. The Guardian can unequivocally depart from the wishes of the Ward without so much as a question from the court.
For example, let’s say a Ward created a Last Will and Testament, leaving their home to their children upon death. The Guardian decides that they need to sell the home to pay the long-term care facility in which the Guardian placed the Ward. Instead of working to protect the property, the Guardian sells the home to pay for the costly care that the Guardian initiated. They are essentially defying the Ward’s wishes to solve a problem they created.
Now, there are certainly situations where a Guardian would need to sell something like a home, notwithstanding the will. However, time and again the Guardian disrupts the Ward’s estate plan out of sheer laziness or selfish gain.
There are many ways to provide alternatives to facility care. Additionally, there are many ways to protect assets and have care paid for. However, Guardians do not initiate the help of an elder law attorney to create these plans. Nor do the Guardians attempt to have these plans approved by the Court. Furthermore, Courts do not seem to want to hear about how to protect the Ward’s assets and find alternatives to paying out of pocket for care (but more on this later).
Let’s put this in the context of an alternative to Guardianship. If I create a power of attorney document, which names someone to act on my behalf notwithstanding my incompetency, it will clearly define some parameters. Namely, it will lay out that they may act on my behalf but not against my wishes and not in a manner that disrupts my estate plan. I might lay out terms that require them to seek my thoughts or confirmation, even if my communication is rudimentary (like nodding or blinking) or even if I have diminished capacity. I would draft a power of attorney this way for a client to not only preserve their wishes, but also their dignity.
This standard is incredibly paternalistic. It is essentially saying “we do not care what you thought or now think. We will think for you and we know what’s best for you.”
The Money Game
If you really want to know what the Guardianship industry is all about, just follow the money. And there is a lot of money in Guardianships.
As of 2016, there were approximately 1.3 million adult guardianships in the United states, which includes an estimated $50 billion in the hands of guardians across the country[8]. As medical technology allows folks to live longer, this number will grow.
These numbers serve as amorphous figures until we put them into perspective. Thus, it is important to understand that the Ward is footing the bill for everything. The Guardian(s) gets paid from the Ward’s assets and the Ward covers all the court fees associated with the Guardianship. The Ward even pays for the proceeding that took their rights from them. Those facts, in of themselves, are bad enough. However, another fatal flaw in the system is the manner in which Guardian’s get paid.
Above, we talked about Guardian getting paid from the Ward’s assets. The standard recurring payment is based on the Ward’s income. Additionally, Guardians get a commission of the Ward’s assets that are sold. This is an important point because this commission-based method of compensation incentivizes Guardians to sell off assets owned by the Ward—even if the sale is blatantly against the wishes of the Ward as set forth in their estate plan.
The commission method presents an even larger issue when the need for long-term care comes into play. Long-term care refers in-home, or facility assisted living or skilled nursing care. The average cost of long-term care can range anywhere from five thousand to ten thousand dollars a month. There are many methods of planning ahead to protect individuals and insulate their assets from the high costs of long-term care. However, Guardians are not incentivized to utilize such protections. It is much more profitable to sell off all the assets, take a commission, and pay the remaining proceeds to a long-term care facility.
Opportunity for Corruption
There’s an old concept in the law in regard to the appearance of the judiciary. Namely, the court should take all precautions to avoid the “appearance of impropriety.” While Guardianships don’t necessarily rise to the level of a tin-foil-hat conspiracy, the certainty hint at possible impropriety.
Clerks have a few choices when appointing a Guardian. They can choose the Petitioner, who is usually a family member and who has statutory priority over others (as discussed above). The Clerk may also choose a “neutral third party” to serve as either Guardian of the Person, Guardian of the Estate, or both.
Given the statutory priority, it would seem that Clerks would rarely choose to go with a third party. However, it happens all the time. There are a million reasons that Clerks can throw out for their decision e.g., family controversy, the need for ongoing legal counsel, the Petitioner had a speeding ticket five years ago, etc. All these reasons are supported on the basis of the “best interest of the Ward” carte blanche authority[9].
These neutral third parties who are chosen to serve as guardians typically make their living as professional guardians. Clerks typically have a short list of people that they pick from each time they need a third-party guardian. These professional guardians form a relationship with the clerks and tend to also serve a guardian adlitems in other hearings.
The closeness of this relationship is concerning for a couple reasons. First, it can easily set the foundation for a good-old-boy buddy system. Second, the Clerks begin to trust the professional guardians and oversight inevitable loosens. This not only gives professional guardians more latitude, but they are also treated more preferentially than non-professional guardians.
What Should be Done?
Least Restrictive Alternative First
The true importance of limiting this process is highlighted by the fact that a vast majority of guardianship petitions that are submitted result in a ruling of incompetency. An over seventy-percent incompetency rate is concerning in light of the fact that no litigation has a success rate even close to that.
Not everyone will have the foresight to execute a power of attorney. Although, if a power of attorney is in place (which would typically obviate the need for a guardian), then the court should be extremely cautious and have a clear and articulable basis for appointing a guardian in lieu of utilizing the power of attorney.
If there is no power of attorney in place and guardianship is needed, it should be severely limited. Expert medical testimony should be required to explain to the court the areas in which the Ward needs assistance. This testimony should be based on medical evidence and should comply with the rules of evidence.
The Clerk should only appoint a guardian for the purposes of assisting the Ward with those things that the court has found sufficient evidence, beyond a reasonable doubt, that the Ward is legally incompetent to perform for herself. The court should then have status reports made by the Guardian, supported by medical evidence. If the scope of the guardianship needs to be expanded because of the Ward’s deterioration, then another hearing should be required.
Judge as Finder of Fact
Each hearing with regard to a guardianship should be tried before a judge. The rules of evidence should apply strictly to the hearing and a knowledgeable judge should rule on the evidence presented. Further, a knowledgeable judge should explain the process and to the parties and ensure fairness in the proceedings.
Higher Burden of Proof
Since a guardianship is a deprivation of rights and liberties analogous to a criminal proceeding, the burden of proof should be “beyond a reasonable doubt.” This standard not only gives the Respondent more rights, but it also lends solemnity to the proceedings. It would help either the judge or the jury understand that a ruling of incompetence is a serious matter that has lasting consequences.
The higher burden of proof should also come with an elimination or alteration of the “best interest of the ward standard.” Eliminating the standard would allow for more strict parameters when making important decisions for the Ward. But, if the standard must stay, it should not be discretionary, it should be supported by articulable facts and subject to strict review.
Clarification and Limitation of Guardian ad litem’s Role
GALs have too much power. The court realizes to heavily on the opinion of the GAL, who, frankly, may have no business evaluating someone’s competency in the first place. Relying on expert testimony would eliminate the need to have a GAL testify as to competency.
Furthermore, the GAL should be required to fully explain their role and the fact that they do not actually represent the Respondent. They should inform the Respondent of their right to an attorney and encourage them to enforce that right.
Payment Should not Include Incentives to Sell
Guardians that do the job should be fairly compensated. However, there should not be an incentive to liquidate the Ward’s assets. In a perfect world, the payment system should also reward saving assets. Practically, this would require some type of taxpayer supported fund. Assuming that is likely out of the question, we should, at the very least, eliminate the commission-based incentive. This would also drive some of the “professionals,” who are in the business just to make a buck, out of the market.
Conclusion
There is a silent war on rights being raged every day. We have little understanding of the mind and how it deteriorates; yet, we treat Guardianships with all the certainty of a tax court hearing. This cavalier attitude towards the rights of the elderly has caused countless individuals to lose their basic freedoms and liberties that are supposed to be guaranteed by a free democracy. These are individuals who have worked hard their whole lives, paying millions in taxes, and the way we pay them back is to rubberstamp an order of incompetency without a second look.
A change is needed. This is a fatal flaw in the law that affects us all. There has been attempts to change that result in pats on the back but no real substance. Let’s make a real change. If you want to know how you can help, give us at McIntyre Elder Law a call at 704-259-7040 or visit our website at www.mcelderlaw.com.
Written By:
Brenton S. Begley
Estate Planning & Elder Law Attorney
[1] I am licensed and I practice in North Carolina.
[2] The Clerk sits as ex officio judge, which means that, while the clerk isn’t a judge, the power to hold a hearing for Guardianships is implied by the fact that they’re a clerk.
[3] NCGS § 35A-1101 defines incompetency as…[A]n individual who lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.
[4] This person makes a judgment as to competency despite not being a medical professional.
[6] Some counties require a physician’s affidavit, which is 1. Easy to come by (because they don’t have to testify); and 2. Technically, expert testimony with no expert certification proceeding such testimony.
[7] This refers to a method by which an outside non-party becomes a party to a case. They must make a motion before the court and have the motion approved.
[8] National Center for State Courts, State court leaders strive to improve guardianship and conservatorship oversight, Backgrounder, Nov. 30, 2016, at https://www.ncsc.org/Newsroom/Backgrounder/2016/Guardianship.aspx
[9] The Clerk has the discretion to determine what is in the best interest of the Ward. To challenge their decision, one must show “abuse of discretion,” which is a tough burden for any appellant.
What are some of the most common issues that arise when you need to qualify for Medicaid to pay for long term care?
1. Not having a General Durable Power of Attorney!! Why is this so important when applying for Medicaid benefits? You’ve probably heard of that little thing called a look back period. Medicaid will look back at your assets for the previous five years when applying for long term care Medicaid. So what does “look back” actually mean for you? It means that you will need to obtain many types of records, including financial records, for the last five years and provide those to the Department of Social Services. Unless your loved one has a power of attorney document, more than likely you won’t be able to just waltz up to the bank and ask for records. Trust me, telling them it’s for Medicaid will not open any magic doors. You may need to obtain life insurance records or other personal information for your loved one as well. If you or your loved one waits too long to get a power of attorney document in place, you might find yourself in a crisis situation where the only solution is to seek guardianship. Guardianship is a costly and time consuming process that can be so easily avoided by having a general durable power of attorney document in place.
2. Gift-giving!!Everyone loves getting a gift, right? I bet your loved ones love giving gifts too. Maybe it’s grandparents or parents giving gifts for a birthday or wedding. Maybe it’s grandparents paying some of their grandchildren’s college tuition. That’s okay, right? Actually, most gifts such as these can cause a period of ineligibility for Medicaid if skilled nursing care is needed within 5 years of giving EACH gift. If you plan ahead, there are ways to provide for your loved ones during your life and still qualify for those benefits that 70% of seniors will need. Now here’s the kicker, some gifts aren’t even intentional gifts, but they can still cause Medicaid ineligibility for a period of time. Maybe you sold a car for less than it’s tax value or maybe you paid a caregiver without having a written Medicaid-compliant caregiver agreement in place. Those count as gifts for Medicaid purposes too….UNLESS YOU PLAN AHEAD!
3. Not having important discussions with your family!! We often meet with the families of seniors that are in need of care and need Medicaid to help pay for that care. Often we find that families may not have vital asset information that is needed to qualify their loved one for benefits or they might not know where certain important documents are located. These types of conversations are not always the easiest discussions to have with family, but it is incredibly important and could save you hundreds of thousands of dollars. The average monthly out of pocket cost of a skilled nursing facility in North Carolina is $7,300. Without Medicaid, just ONE year in a skilled nursing facility will cost an average of $87,600.
Let us help you have those conversations and create a plan that will provide for you and your family for years to come. One of the greatest gifts you CAN give to your loved ones is planning ahead and getting your estate planning affairs in order. Even if you find yourself or your loved one already in a crisis situation and in need of immediate care, it’s not too late! Let us be here to support and guide you through the Medicaid qualification and application process. Please come sit down with one of our attorneys for a free one-hour consultation and let us see how we can help serve you. An hour of your time is worth the peace of mind! 704-749-9244
Estate planning can be a source of drama for families. This is especially true when someone is left out. A good goal when creating your estate plan is to try and prevent any unnecessary drama. However, there are some instances where you may want to disinherit a loved one.
Creditors
It may be a surprise to learn that not all heirs are fiscally responsible. Besides, some heirs may be fiscally responsible and still may incur substantial debt such as medical debt. Consequently, a loved one to whom you are considering leaving an inheritance may be at risk of having their inheritance taken by creditors.
In North Carolina, if a creditor gets a judgment, that judgment automatically attaches as a lien to real property owned or subsequently inherited by the debtor. This is true as long as the judgment is outstanding. So, the home you are leaving behind may be subject to the debt of the heir.
Special Needs
Perhaps your loved one is a special needs individual who may be entitled to a means tested government benefit like Supplemental Security Income or Medicaid. An inheritance could disqualify them from this much needed benefit. Thus, unless the inheritance can replace the lifetime benefit, then you may want to think twice before leaving a bequest to them outright.
Spouses
You may love your children, but you don’t get to pick who they marry. A spouse can be a significant factor to planning. Perhaps you don’t like the influence a spouse may have on your child. Maybe you want to make sure that your child’s share goes to your grandchildren and not the spouse should your child predecease you.
Solution
All of the issues can be solved with a simple solution, don’t leave the inheritance to the heir, leave it to an irrevocable trust. Your estate plan can integrate a provision that creates a trust for your loved one upon your death (called a “testamentary trust”). This provision can either be in a will or a trust created during your life. The testamentary trust will allow you to leave assets that your loved one can benefit from without the assets passing to them outright.
The testamentary trust is an irrevocable trust where you appoint a trustee to manage the assets on behalf of your beneficiary. Because it is irrevocable, it is not considered an asset of the beneficiary. Thus, the trust will allow your loved one to keep a means tested government benefit (this type of trust is called a Supplemental Needs Trust but is created in the same way), avoid creditors, and block greedy spouses.
If you have questions about testamentary trusts, let the experienced attorneys at McIntyre Elder Law help. Give us a call 704-259-7040.
There are many ways to inherit assets from a decedent. No matter how complicated or smooth the process may be, if you are an heir, it is important to understand your rights. To get a clear picture of those rights, it is important to determine how you will be receiving the assets i.e., through probate or outside of probate.
Assets Outside of Probate:
Probate is the process by which title to assets, without a predestination, pass to the heirs of the Decedent’s estate. Asset which are predesignated to pass to a co-owner, or a beneficiary generally pass outside the probate process. A few good examples of this prearrangement are trusts, joint bank accounts with rights of survivorship, life insurance, retirement accounts, annuities, and payable on death bank accounts. The reason these assets pass without need for probate is because they are already predesignated to pass to the beneficiaries.
When it comes to non-probate assets, the heir has the right to immediate possession of the assets. If it is real property, such property passes immediately to the heirs. If it is an account, the financial institution is contractual bound to notify the beneficiaries and surrender the assets to them. If it is a trust, the Trustee must follow the terms of distribution in the trust agreement.
There are exceptions to this rule of immediate possession. While a financial institution may be obligated to pay to the beneficiaries, they must also ensure that they have properly identified the correct beneficiary. Similarly, a Trustee may be bound to keep assets in a trust for a certain period before payment. Thus, if a beneficiary does not get a timely payment of assets, they may not have grounds to force payment.
Beneficiary Fraud
If a financial institution or a Trustee suspects that a beneficiary was named or changed as a product of undue influence or fraud, they are within their rights to refuse payment until the question is fully settled. Typically, if there is a legitimate claim of beneficiary fraud, a financial institution will do an internal investigation to evaluate the merits of the claim.
However, if someone brings legal action against the financial institution, they will typically interplead or deposit the assets with the court and let the parties battle it out.
Inheritance of Real Property
If more than one heir inherits real property, they both generally have equal right to possess the property. This is true regardless of the percentage of ownership. The exception is if one heir inherits a life estate (the right to live in the property for life—known as the “life tenant”) and the other inheritance a remainder interest (the right to receive the property at the life tenant’s death).
If heirs inherit real property together, each heir must agree if the property is to be given, sold, or encumbered by a mortgage. In the event that heirs cannot agree, they can force the division or sale of the real property through a process called a “partition.”
Lastly, if an heir inherits real property with a mortgage, the mortgage company must speak and cooperate with the heir. However, the mortgage company is within their rights to require that the heirs prove that they are in fact legal heirs. Note that a mortgage company cannot accelerate the mortgage by virtue of the death of the decedent. The heirs will be able to pay the mortgage on the same terms that the decedent had during her life.
Assets in Probate
If assets are passing through probate, they are subject to the jurisdiction of the Court. When a probate estate is opened, the Court appoints a personal representative (“PR”). This can be the Executor named in the will or an interested party who has come forward and proven their fitness to administer the estate.
It is the PR’s job to ensure that all assets subject to probate are collected and inventoried. It is also the PR’s job to pay all claims against the estate. Therefore, the PR won’t make any distribution to heirs until all creditors have had the opportunity to make claims (creditors have a ninety-day window called “the claim period”). All claims must be paid before the heirs receive anything from the estate, unless you are a surviving spouse or minor child of the decedent. In that case, you are entitled to the first $60,000 worth of assets passing through probate if you are a spouse and $5,000 for each minor child.
Assets Can be Brought into Probate to Pay Debts
Some of the assets that are predesignated to pass outside of probate can be brought within the estate to pay off any claims. For example, a PR of an estate can petition the Court to utilize a bank account held jointly with right of survivorship between the decedent and a third party to pay off claims[1]. However, this can only be done if the estate is insolvent. Thus, it is best to hold onto real property, joint bank accounts, and transferrable on death securities accounts until the claim period is over.
A Personal Representative Can Be Removed for Wrongful Behavior
If an heir of an estate finds that the PR is acting inappropriately or criminally, they can ask the Court for the PR to be removed and to have anew PR appointed. An appointment as a PR is an appointment to a public office. As such, the PR must take an oath of office to swear and uphold the US and state constitution and abide by the laws. If the PR violates this oath, it may be considered a breach of fiduciary duty and may be grounds for removal. A few examples of a breach of fiduciary duty are failure to file timely accountings with the court, improper use of estate funds, conflict of interest, and negligence.
If you are an heir and have question or concerns, give the experienced attorneys at McIntyre Elder Law a call at 704-259-7040 or visit our website at www.mcelderlaw.com.
Brenton S. Begley
Estate Planning & Elder Law Attorney
[1] This is also true for real property and transferable on death securities accounts.
What is your plan? Whether you are just starting a family, in the midst of raising kids, looking ahead to retirement, or living your best post-work life on the coast, having a plan is a must. And guess what? Everyone can benefit from having an estate plan. Truth be told, the sooner you plan, the more you can potentially save. Whether your goals include living a tax-free life in your retirement, seeing to it that your loved ones are provided for after you are gone, or maybe you are just starting to think about ways to protect your hard-earned money and property from the government or would-be creditors. Whatever the goal, planning saves time and money.
…But don’t just take my word for it. Let’s look at some common questions that arise in the absence of a plan.
What happens if something happens to me, I don’t have a General Durable Power of Attorney?
You have yet to appoint a legal decision maker! Who will handle paying or switching over bills? What happens if you become delinquent? Who will negotiate settlement payments on your behalf? Who will apply for needed government benefits? Does anyone have access to your individually held accounts? What if someone, like a spouse or adult child, needs access to your 401k or IRA? Who will help you take the estate planning steps necessary to protect assets ahead of a Medicaid qualification? If you own or co-own real property, what happens if you need to sell that real property? If you don’t have a power of attorney and something traumatic happens, will you need a guardian? Who would be your guardian and what sort of legal fees are involved? Could you avoid guardianship all together by having a General Durable Power of Attorney in place?
What happens if something happens to me, and I don’t have a Healthcare Power of Attorney?
You have yet to appoint a legal decision maker! Who will advocate for you when you cannot speak for yourself? Will they know what you want? How would they pull medical records protected under HIPAA or seek a second opinion? What authority do they have to check a medical provider? What happens to you if you need long term care? Have you laid out clear instructions regarding burial and the end of life?
What happens if I pass away in NC without a Last Will and Testament or Trust?
You have yet to provide clear instructions to the people you leave behind! In the absence of a legal instrument providing instruction on how to pass property at your passing, the property you leave behind will be distributed to your heirs at law in accordance with the laws of Intestate Succession in North Carolina. Do you know who that would be? Were these the people you intended to receive that property? What happens to specific pieces of heirloom jewelry or items of sentimental value? Are you leaving behind a mess for your loved ones to have deal with? What is probate and how long does it take? What is the cost associated with a probate case? How does real property clear through an estate down to my heirs? What about partial interests in property? When multiple people pass away without providing clear instructions through a will or a trust, it can have a spiderweb effect that leaves behind a tangled mess. The result is that vast amounts of time, energy, and resources are spent on the estate administration process. Could this have been avoided? Does a Last Will and Testament give me any protection? How is a Last Will and Testament different from a Trust? What is the best fit for me?
What happens if I don’t have a Living Will?
A Living Will is not the same as a Last Will and Testament. A Living Will is best understood as being your voice when you can longer speak. It is your decision that you make ahead of time, manifested in a legal document, that proclaims your desire to die a natural death. With the advances in science and technology, the human body can be kept alive long after the mind fails. The Living Will speaks to those moments. In the absence of a living will, there is no legal expression of your intent. As such, the burden often falls on your loved ones to make those final decisions.
The documents referenced throughout this article are considered to be part of the “foundation” of an estate plan. And it makes sense…You have to equip yourself with information before you can put a plan in place. Once implemented, the foundational documents lay the groundwork for more advanced planning. The fact is that no one has a crystal ball. No one knows when their time is up. In the face of such uncertainty, consider yourself, as well as your loved ones, and make the days count by getting your affairs in order. Reach out today to schedule your free consultation with our team of professionals at McIntyre Elder Law and let us help you put your plan in place.
DANGER!!! Stop taking legal advice from non-lawyers. From funeral homes to financial planners there are lots of non-attorneys doling out legal advice these days. Brenton and Greg explore the dangers of listening to non-attorneys in this Elder Law Report.
The Attorneys at McIntyre Elder Law can serve as your guide through the legal maze and address issues head on. We aim to inform and empower clients to make informed decisions. In turn, that makes having “the talk” a little easier. Reach out today at 888-999-6600 or visit us a our website at mcelderlaw.com to schedule your free consultation today.
Long-term care insurance can be a valuable tool. However, to get the most out of what you’re paying for, it is important to understand how your policy works. Each policy is different but most have similar components. Below, we look at some of the typical issues faced by long-term care insurance policy holders and what can be done if you’re denied coverage.
Elimination Period
The “elimination period” on a long-term care insurance (LTC insurance) policy refers to the period between when the policyholder goes into long-term care and when the benefits begin to pay out. The length of this period can be 90 days or more. Ostensibly, the reasoning behind the elimination period is to ensure that the policy begins to pay when the policy owner is unquestionably in need of long-term care. The rationale is that the insurance company doesn’t want to pay if you go into a facility for a month and return home. Whatever the reasoning, many LTC insurance owners must pay a substantial amount of money for the first few months of care. This can come as a surprise for many policy owners and lead to financial hardship.
Unintentional Policy Cancellation
What if the policy owner cancels or stops payment due to diminished capacity? Perhaps they are suffering from dementia and can no longer manage their affairs. Many policies include an exception to the cancellation that allow you to “reinstate” the policy if it was cancelled due to the diminished capacity of one or more of the policy owners. Typically, once the payments begin, the premiums for the policy are waived, meaning you do not need to pay premiums during the time in which a policy is paying out. However, the pay out can stop for many reasons. Perhaps the policy owner did not meet the policy’s definition of in need of coverage (more on this below) during recertification. Perhaps the insurance company wasn’t given the invoices for the care that they are paying for. Regardless, if the payments stop, the premiums once again become due. If the premiums aren’t paid, then the policy will be cancelled.
Prerequisites for Coverage
All LTC insurance policies have a prerequisite that must be met before they pay for care. Each policy defines this differently; however, it typically involves the policy owner needing substantial assistants with multiple activities of daily living (ADLs). Some of these definitions can be tricky and the insurance company will require proof that their definition is met before payment occurs. As such, there can be instances where someone is in need of care but can’t get the insurance company to pay because their medical record lacks a small ultimately insignificant detail. Because of the red tape and difficulty dealing with these insurance companies, it can be hard to determine what is missing.
What Can Be Done if Denied
All LTC policies have an avenue to appeal a denial of coverage. An appeal can be a difficult and lengthy process. The help of an attorney is crucial to navigate the appeal process. An attorney can assist with making the appeal, nailing down deadlines, and pinpointing what items of information are missing. An attorney can also help set the foundation for if the insurance company continues to deny coverage and the matter must be taken to court. If you have questions about how to handle Long-term Care Insurance Appeals, give the experienced attorneys at McIntyre Elder Law a call at 888.999.6600.
Having the talk is hard. I’m referring to the talk that is inevitably held between adult children and their parents to include any other close relatives. The talk is frequently centered around a sensitive subject that will affect the entire family.
Perhaps people have noticed early signs of memory loss or confusion in a loved one. There could be a recent diagnosis affecting competency or cognition. Big words like Alzheimer’s disease, Dementia, or Long-term care begin to have real meaning and stir up feelings of uncertainty, anxiety, and helplessness. The family dynamic is known to shift, and family members can diverge in thought and action.
Even in light of the above, the talk is necessary. A family’s strength comes, in part, from the selflessness of its members. That same selflessness requires that we set aside our reactive, ego-centric nature.
Anyone can initiate or host the talk. However, it is best practice to refrain from imposing your own personal desires. Coming from a place of awareness, understanding, and support will set the stage to ensure you and your loved ones are equipped to make informed decisions. The best interest of our loved ones is the overriding theme.
But, how do we define “best interest?” Reasonable people can disagree on what that means. Maybe everyone disagrees. The talk is important just the same because decision making requires information and information is obtained through communication.
In having the talk, consider several important questions:
What estate planning documents are in place, if any?
Is our loved one competent? What does that mean exactly? Is guardianship necessary?
What will I leave behind and where will it go?
Who are the appointed decision makers while I’m alive? Are those decision makers ready and able?
What legal options are available to protect assets?
What happens if long-term care is needed? How will we pay for it?
What legal impact might this have on a retirement or savings?
What happens to me if something happens to my spouse?
What happens next?
…
The answers to many of these questions begin to materialize with the benefit of legal counsel.
The Attorneys at McIntyre Elder Law can serve as your guide through the legal maze and address issues head on. We aim to inform and empower clients to make informed decisions. In turn, that makes having “the talk” a little easier. Reach out today at 888-999-6600 or visit us a our website at mcelderlaw.com to schedule your free consultation today.
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