In this Elder Law Report we are providing all Estate Planning, Trust Planning and Lady Bird Deed Maps all in one place just for you for FREE. These maps can really help in planning your strategy for how to protect your hard earned money and property.
The Estate Planning Map can be used to route assets through or around the probate estate and to examine how long term care and liens may attach to your estate. There are various tools to protect and pass assets outside of the probate estate built right into this map.
What do you value more? Protection or Control? Perhaps a little of both. See if a trust is right for you and if so which kind with this map.
Know how a Lady Bird Deed works? Curious? These deeds can mean the difference in losing or saving a home when long term care is needed. See just how they work with this map.
Making a Will is an extremely common concept. You own stuff and you want to make sure a certain person or persons get that stuff when you die. What’s not commonly considered, however, is what will happen when that transfer of assets takes place. There’s some good, there’s some bad, but all are things you should be aware of.
The “Oops” Transfer
Let’s say you’re a gun owner. You’ve purchased a couple firearms over your lifetime that are good quality and will serve as part of a decent inheritance. Let’s say you want to leave on or all of these firearms to your son Chuck. Now Chuck was a little wild growing up. He and his buddies got popped in high school by the local Sheriff for driving around in the bed of a truck, smashing mailboxes with a baseball bat—a state and federal offense. Now Chuck, as the main perpetrator of the smashing, got charged and convicted of a felony. Chuck cannot legally own or possess a firearm because of this felony. If he is found to be in possession of a firearm, he is in big legal trouble.
What was originally a gift out of the kindness of your own heart, turned into another felony charge for ol’ Chuck. . . Oops. What could have been done? Well, a little preplanning would have allowed you to set it up so that the firearms go to someone else or to be held in trust until Chuck gets his rights to own a firearm back.
Let’s say you own a home with a mortgage. You refinanced a couple time and refurbished a couple rooms in the home. So, your mortgage is pretty high. High enough that you may not pay it off during your life. Let’s say you pass away and leave the home to your child still owing $60,000.00 on the mortgage. What happens to it?
Well, it’s no surprise that somebody has to pay it. In this case there is really two options: 1) Maybe you had insurance on the mortgage such that if you died owing a balance, the insurance would pay that balance so that your heirs would not have to. Most people do not have this type of insurance; 2) If you don’t have mortgage insurance, then the beneficiary who received the property must pay it. It is important to note that the beneficiary is not personally liable for the mortgage. But, if they want to keep the home, it must be paid. Also, if they sell the home, part of the proceeds must go toward paying off the mortgage.
Finally, the beneficiary has the option of refinancing. If they do, they will become personally liable for the mortgage. This really is not a great option unless the beneficiary can get a better rate and/or the beneficiary wants to get some of the equity out of the property.
Death and Taxes
What are the tax implications of dying? Well, there’s a few but I’m going to focus on one: basis. Okay, we’re gonna get technical here, so stay with me. Let’s say you bought a vacation property for $100k. Your basis in that property is $100k, what you paid. If you sold that property for $300k, you would have a gain. The gain is the difference between the basis ($100k) and the profit ($300k). Thus, the gain here is $200k. You would be required to pay capital gains taxes but only on the gain. So, here you would apply your capital gains rate (let’s say 15%) to the gain of $200k. The capital gains tax would equal $30,000. Quite a large chunk of change.
Let’s say you decide to give that property away during your life. The person who receives the property will have the same basis you have and will suffer the same tax consequences if they sell the property. However, if you were hang on to that property and your beneficiary were to receive as an inheritance, they get a “step-up” in basis. This means that their basis in the property will be fair market value at date of death. That eliminates all the gain built into the property. And, unless the property appreciates significantly, there will be little to no tax consequences of selling the property once received.
A little bit of preplanning can prevent the assets you leave behind from being a burden. I f you have questions, call the experienced attorney at McIntyre Elder Law: (704) 259-7040.
The Value of Using Irrevocable Trusts in Medicaid Planning
People often wonder about the value of using irrevocable trusts in Medicaid planning. Certainly gifting of assets can be done outright, not involving an irrevocable trust. Outright gifts have the advantages of being simple to do with minimal costs involved, including the cost of preparing and recording deeds and the cost of preparing and filing a gift tax return. Many financial institutions have their own documents they use for changing ownership of assets so there are typically no out-of-pocket costs for the transferor.
So, why complicate things with a trust? Why not just keep the planning as simple and inexpensive as possible? The short answer is that gift transaction costs are only part of what needs to be considered. Many important benefits that can result from gifting in trust are forfeited by outright gifting. These benefits are what give value to using irrevocable trusts in Medicaid planning.
Prior to state implementation of the federal Deficit Reduction Act of 2005 (DRA) in recent years (with the exception of California), federal Medicaid law contained a bias against trusts: Most transfers of assets to trusts had a 5-year lookback period, whereas there was a 3-year lookback period for non-trust transfers. This different standard induced many clients to elect outright gifting in preference to gifting in trust. The DRA leveled the playing field by imposing a 5-year lookback period for ALL transfers. Removal of the bias against trusts shifted the discussion of elder law attorneys with clients to the real benefits of gifting in trust versus gifting outright.
Key benefits of gifting in trust are:
Asset protection from future creditors of beneficiaries
Preservation of the Section 121 exclusion of capital gain upon sale of the settlors’ principal residence (the settlor is the trustmaker)
Preservation of step-up of basis upon death of the settlors
Ability to select whether the settlors or the beneficiaries of the trust will be taxable as to trust
As promised!!! LIVE FULL Asset Protection seminar FOR FREE right on Social Media… All for you today. ANY QUESTIONS? Go to: mcelderlaw.com or call: 704-749-9244.
Greg McIntyre: This is Greg McIntyre. I’m doing a full seminar for you right now, full video seminar or full webinar style seminar. This is similar to something that I would give live. I do a lot of speaking engagements. We’re going to talk about asset protection. We’re going to talk about situations that might happen to affect your assets. We’re going to talk about elder law and estate planning issues from deed planning to trust planning to long-term care insurance.
Greg McIntyre: We’ll talk about everything right now. This is something I promised that I was going to do, and we’re going to do it for you live right now. So thanks so much for watching and I hope you enjoy it.
Greg McIntyre: We’ll start the Estate Planning seminar. So as promised, we’re going to do a live Estate Planning seminar straight from social media today. This is similar to one that I might give in front of a live audience at a dinner or something like that. We give those all the time, so I want to be able to give that to you and show it to you.
Greg McIntyre: Just had to check and make sure we’re up. We are, and I’m Greg McIntyre, the elder law guy, helping seniors protect their assets and legacies, and you’re at McIntyre Elder Law’s social media page or webpage, one of the other, however you got here or perhaps the podcast. If you need more information, go to mcelderlaw.com.
Greg McIntyre: Now, we’re going to dive right in today. We’re going to talk about deed protection, foundational planning, trust planning, and long-term care insurance solutions. We’re going to talk about that entire thing. So, are you ready? That’s the real question you should be asking yourself. Are you ready for what might come? Are you ready for a tragic accident or healthcare situation? Or you might need extensive long-term care that could sacrifice all your assets.
Greg McIntyre: Many times people lose everything they’ve worked for their entire lives for the last few years of their lives. It’s not right. I never liked it and that’s why I’m an elder law attorney. So I’m Greg McIntyre, the elder law guy. Again, helping seniors protect their assets and legacies is our mantra.
Greg McIntyre: It has been for a long time, helping seniors protect their assets and legacies. JD, MBA, that’s a Juris Doctorate MBA that means law degree, and master of business administration. That’s just some of my education. I’m an estate planning and elder law attorney and a very proud member of ElderCounsel down here on the bottom left. And let’s see. I’m going to get a pen here.
Greg McIntyre: This is ElderCounsel, so very proud member of ElderCounsel, which is a national group of estate planning and elder law attorneys. And that gives me a really deep bench. So it’s not just me standing up here. It’s also others that helped me answer questions and I help them with their issues and questions as well. So ElderCounsel is a great organization.
Greg McIntyre: I’m an elder law attorney because I like helping people. I really enjoy helping people. I’ve done a lot of courtroom work also in the past, but I don’t feel like I help people as much as I do in the estate planning and elder law. When I help someone save their home, save their entire retirement accounts, activate a healthcare benefit or a long-term care benefit like Medicaid to pay for assisted living or nursing home care or for veterans aid and attendance pension benefits, that makes me feel great and it’s a win-win for the entire family.
Greg McIntyre: So how many of you out there have careers where you help people? You feel great when you really help people at the end of the day. How many people out there have careers or are retired and had careers where you help people? Maybe you were a policeman, a fireman. Maybe you were an attorney. Maybe you were a school teacher or a financial planner. Regardless, I guarantee you help people and it made you feel good at the end of the day.
Greg McIntyre: Hey, this is my Grandfather McIntyre right here. He was probably in his 80s or early 90s there. This is me awhile back. I may look a bit older, maybe a couple of more wrinkles by now. But Papa Mack, that’s really my why. That and I could put a picture up here of my six children and my wife who really worked hard to help our clients. I actually put a picture up here of some of my clients.
Greg McIntyre: But everybody needs a why. It’s not just the grind. When I’m working late, I do have six children, so daddy’s got to work. But when I’m working late, I’m thinking about my grandfather who spent 10 plus years in assisted living care and spent down really everything he had.
Greg McIntyre: If he would have had someone like me at that time as an elder law attorney, things might’ve been different. But he lived to be in his late 90s and stayed in assisted living care over 10 years. So really keep my family and my loved ones in mind when I’m doing estate planning and elder law and pulling some late nights. It always makes me feel great. It makes me feel great when people talk about us and recommend us.
Greg McIntyre: This is Samantha Yelton. Samantha was kind enough to give us a testimonial and talk about a little of the work that we did for her and her mother.
Hayden Soloway: Hi, I’m Hayden Soloway and I work in McIntyre Elder Law for Greg McIntyre. We have a guest today, Samantha Yelton. And she’s going to talk to us a little bit about her experience here at McIntyre Elder Law, a little bit about herself, and I hope that you will learn something and enjoy meeting Samantha.
Hayden Soloway: Samantha, hello.
Samantha Yelton: Hello.
Hayden Soloway: Thank you for coming.
Samantha Yelton: Thank you for having me.
Hayden Soloway: We met you at the World Series, and tell me how, you’re not a veteran. And so you were looking at the booths. We had one set up there.
Samantha Yelton: I had previously thought about contacting an attorney to help me with some things for my mother protecting her assets, and I just happened to see the booth. And of course, the elder law caught my attention. And so I went over and Greg was actually there. And I spoke with him and he introduced himself and told me what he was able to do. And I gave him my phone number and it just went from there.
Hayden Soloway: So tell me a little bit about your mom.
Samantha Yelton: Well, of course, she’s elderly. She’s in her late 70s and my father passed away about two years ago. And so she’s by herself and I was just trying to prepare for the future, for her future.
Hayden Soloway: So let’s talk a little bit about you. Tell us a little bit about Samantha.
Samantha Yelton: Well, I’m a mother. I have one son and I’m also a home care nurse for Hospice Cleveland County. And I really enjoy my job and that’s something that I’m very passionate about is helping others.
Hayden Soloway: Since you need an information that your mother, what did Greg suggest that you do for her? What kind of work did she need done to prepare her?
Samantha Yelton: Well, I actually came to him to get more information about the lady bird deed, which is something that I had heard about in the community and of course, working for hospice. I’d heard that term thrown around a couple of times, so I wanted to get some more information about that and see if that was something that we could do to help protect her property just in case she ever had to go into a nursing home.
Samantha Yelton: And also she had a healthcare power of attorney and durable power of attorney, but I felt like those needed to be updated since my father’s death.
Hayden Soloway: So tell me your experience working with Greg and getting the documents done. You came to our office?
Samantha Yelton: I came here and I told him what I wanted and he was able to provide information and tell me step by step what I needed to do. There were some things I needed to take care of on my end as far as getting titles transferred into my mother’s name. And so once all that was completed, then Greg and his team took care of it and very knowledgeable, very professional, good experience.
Hayden Soloway: They’ve got a good career, very knowledgeable and we do a lot of things in the community. We go to homes and-
Samantha Yelton: And you did.
Hayden Soloway: … even various places, yes. I’m so glad that you came and talk to us today.
Samantha Yelton: Thank you, my pleasure.
Hayden Soloway: I hope you enjoyed listening to Samantha’s story. Everyone has a story. If you can’t visit us, if for some reason your home bound for some reason or it’s a long drive and you don’t like to drive that far, we’ll be glad to come see you. Thank you.
Greg McIntyre: So, thank you so much, Samantha. I’m going to tell you, it makes me feel so good when somebody recommends me or somebody gives us a great positive review, and we’re very fortunate and blessed. We’ve gotten a lot of those. Samantha Yelton’s review is absolutely to die for. I mean, I love it and it makes me feel happy. It makes me feel good that we helped people. It makes me feel good that we helped save a home and keep that in the family, and keep her mom in control of the house for the rest of her life.
Greg McIntyre: That’s what a lady bird deed can do. We’re going to talk about a little bit of that today. Also, it makes me feel great with healthcare professionals like someone from hospice would come and use us, that they think that much of us and that makes me feel great. So thank you so much Samantha for doing that.
Greg McIntyre: Talk a little bit about state planning today, a little bit about benefits planning and a little bit about probate. We have three departments in our office. The estate planning, really I should change that. It should be really pre-planning. So if I were to change that, I would change that to pre-planning or the word pre- there instead of estate planning, and keep planning. But because it’s a little different than traditional estate planning.
Greg McIntyre: Estate planning, I think, maybe wife or spouse, two kids, 30s, early 40s, maybe trust with the children so that they’re cared for and guardianships, things like that, appointed, who’s going to be the guardian and caretaker if we both die. It’s a little different in elder law. So we’re pre-planning. We’re looking at retirement assets, retirees, soon to be retired. How can we plan to protect everything we’ve worked for, for our entire lives? So we keep the eye on the ball for the long-term care piece and what might come.
Greg McIntyre: In benefits planning, we do certainly help people in Medicaid crisis planning situations to activate Medicaid benefits to pay for a nursing home or assisted living care or we activate veterans benefits to help people pay for in-home assisted living nursing home care or just when they’re having some trouble. They may be eligible for this veterans aid and attendance pension benefit. I mean how great is that.
Greg McIntyre: If you look back through some of our videos, you’d see recoveries of $34,000, $22,000, $8,000 in back benefits on veterans aid and attendance as well as ongoing benefits between say, $1,200 and $1,800 depending if you’re a veteran, the spouse of a veteran, a spouse of a deceased veteran. Those two things, the Medicaid benefit and aid and attendance benefit can be amazing. A lot of times we’ll see what I would call the crying wife come in saying, “Hey, husband’s been in care for a couple of years. We’ve lost a couple of hundred thousand dollars, a few hundred thousand for care. How do we save some of it for retirement? What do I do?”
Greg McIntyre: And I can help with that. I can help people save for retirement. And we call that Medicaid Crisis Plan. That’s what we call it, Medicaid Crisis Plan. So we help with benefits planning, also probate. Probate is an area where you already passed away or a loved one has passed away. It would include probate, estate administration or trust administration, ministering trust. And it could include guardianships as well, which is while people are alive.
Greg McIntyre: So how many people over the age of 65, what percentage of people out of a hundred are going to need some type of long-term care during their lives? What percentage of people over the age of 65 will need some type of long-term care according to a US Department of Health and Human Services report, 2005 report? What do you think? Put in the comments. How many people … What do you think?
Greg McIntyre: It’s actually 70% of seniors, 70% of people over the age of 65 are going to need some type of long-term care during their lives. That’s huge odds. I mean, that’s huge. That’s better than Vegas odds or worse than Vegas odds and Vegas wasn’t built on winners, right? So that means that … Look at the cost, the high cost of long-term care. That means they’re going to have to spend out 70% of people over the age of 65 on in-home assisted living or nursing home care.
Greg McIntyre: So you have to ask yourself, do I have long-term care insurance or are my pockets deep enough to pay for it? Does Medicare pay for long-term care? No, it does not. It will pay 20 days for us for rehabilitation in full. And then part of the remaining 80 days, if you keep progressing so to speak and keep making progress or else at some point they’re even in the hundred days, they’re going to say, “You need to pay out of pocket.” And it’s very hard to appeal and stop those decisions.
Greg McIntyre: So what I suggest for people to start with, and so that’s what we keep on our mind as well is that 70% number. We know that and when we’re planning, we have that in mind. So foundations, let’s start there with foundations. We call those general durable power of attorney, which is on the street, they call it a financial power of attorney, healthcare power of attorney, living wills and wills.
Greg McIntyre: So general durable power of attorney, healthcare power of attorney, living wills and wills. Those are the four foundational documents. We’re going to review those in full next and people, you shouldn’t underestimate getting your foundations in place. Having these in place can absolutely mean the difference and being able to protect everything you have or losing it. Mark my words, and I do this every day.
Greg McIntyre: I want you to meet Mr. Foundation. He is extending a hand. He is the most interesting man in elder law. Mr. Foundation is going to help us illustrate some foundational planning today. So Mr. Foundation, look at that. He’s twirling his mustache. He looks smug because he has in place a general durable power of attorney. He knows that gives him options in his estate plan.
Greg McIntyre: There’s a reverse built into the plan. He can change directions, and he can count on his loved ones, the person or persons he appoints that he trusts to take good care of him and his money and retirement and home and real estate well into retirement even if he needs long-term care. I would say it’s probably the most important foundational document there is.
Greg McIntyre: It appoints a trusted person called an agent or attorney in fact to handle your financial and legal affairs while you’re alive. It survives incompetency and incapacity. If you don’t have a general durable power of attorney, then you could be stuck in a crisis. What do we mean by that? Well, you could be stuck because if you become incompetent or incapacitated and you don’t have it, then your accounts are frozen. No one can access them.
Greg McIntyre: You might say, “Well, I’m married. My husband or my wife can access them.” That’s not true. If you have an individual retirement account, it’s just for that individual. You might say, “But I’m the beneficiary on that account.” That doesn’t matter. A beneficiary cannot access the actual account or life insurance product or policy or annuity.
Greg McIntyre: Those things are individual assets or stocks or bonds, individual assets. You must have a general durable power of attorney in place. It needs to be recorded at the Register of Deeds to survive incompetency or incapacity, and it is extremely important that you only appoint someone you trust a thousand percent because you’re really handing them the keys to the kingdom to be able to have access to your financial assets. Very important document to have in place.
Greg McIntyre: If not, you could be stuck and your family could be going after guardianship for you or for your loved one who has become incompetent or incapacitated. And then the courts are over and have to approve the way any money is spent and it’s hard to save assets at that point. So must need to get that document in place.
Greg McIntyre: Healthcare power of attorney, it is extremely important to have a healthcare power of attorney in place. Mr. Foundations over here, he looks happy. Look at that beard. That’s a healthy beard right there. He’s happy, and he’s adjusting his glasses. He can see. He knows that he’s going to have someone that’s going to step in that he trusts to make important healthcare decisions for him.
Greg McIntyre: Life or death healthcare decisions, long-term care decisions, medication decisions. Is it important to have a HIPAA-compliant document or make sure the healthcare power of attorney is HIPAA compliant? Yes, if you want to pull medical records. Try getting medical records without a HIPAA-compliance form and it appoints a trusted person to handle those decisions. Only when you can’t, we write in there that only when you can’t, it survives incompetency and incapacity. It does not have to be recorded to Registry of Deeds. It automatically does that.
Greg McIntyre: So, a healthcare power of attorney is extremely important. I might ask some stupid questions today, but do you think it’s important to have someone appointed to make your life or death healthcare decisions? Of course, it is.
Greg McIntyre: A living will. Mr. Foundations looks really confident right now because he has a living will in place. Who should make my end-of-life decisions? Should it be someone else? Should it be my spouse? Should it be my kids? Well, that kind of puts that guilt-ridden decision on the spouse or on the kids. I don’t know if I want my four beautiful little daughters to decide whether daddy lives or dies.
Greg McIntyre: Now, this is for a situation where daddy or I might be incompetent, incapacitated. I can’t act for myself, terminal, incurable. Let’s say brain death has occurred on being maintained by respirators. Is it okay to let me go at that point? It’s my voice in the room saying it is releasing from liability to hospital, the doctors, my agent, my healthcare agent for complying with my decisions.
Greg McIntyre: That’s an extremely important document that should be in place. It does not need to be recorded at the Registry of Deeds. If you have the special religious requirements that need to be in there, a Catholic living will might want to make sure that there’s no flirting with suicide or mortal sin, the last rites of the Eucharist are administered by a priest.
Greg McIntyre: Those are extremely sensitive documents that matter that can decide whether you live or die in a certain situation that are very personal, can make the difference between you living on like a Terri Schiavo for years and the courts being unwilling or unable to make a firm decision on what could happen to you. This lets it stay in your hands and it’s your voice in the room even when you can’t speak.
Greg McIntyre: Hey, he’s pretty happy here because he’s putting in place … He’s A-okay because he’s putting in place the last will and testament. When does a will have power? Does it have power while you’re alive? No, a will only has power after you pass away. So an executor would be appointed. Your general durable power of attorney, your financial power of attorney would cease to have any power at that point.
Greg McIntyre: Clerks get irritated when you try to … Or mad, not happy. The law is against you if you try to use a power of attorney after someone’s passed away. It ceases to have power and everything needs to go through the executor or a trustee of the trust if you have a trust to handle asset disposition after you’re gone. Does a will allow me to pass property the way I want? Yes, it does. Yours should, but you need to think about other things.
Greg McIntyre: Now you need to think about liens that could attach to things as they go through the will. You need to think about it. Does a will protect my assets? No recording requirements. Don’t record your will because then it becomes kind of the public record at the Registry of Deeds.
Greg McIntyre: So, let’s say you don’t have long-term care insurance. You need, or your spouse needs nursing home or assisted living care. Medicaid comes in and pays for that care and attaches a lien after you pass away to your probate estate when you probate your will. You go down to the courthouse. You open up the state, you hand the clerk your loved one’s will and say, “Hey, can you help me here?”
Greg McIntyre: First, I’m going to tell you we can’t give legal advice and they can’t. They’re not attorneys. Second, they’re going to tell you or you’re going to find out even if you go to an attorney that you need to apply for probate letters and publish in the paper for four consecutive weeks and wait 90 days from the date of that first publication. Now, this is in most estates. What happens, there’s other unique situations where that might not be required.
Greg McIntyre: Why do you publish in the paper? Why is there a 90-day waiting period? It’s a lien period for liens to come in on your estate. And when liens come in on your estate and attached, it forces the sale or auction of the items going through the estate, which is how people lose homes every day of the week in every 100 counties in North Carolina. Millions, if not billions of dollars in property that changes hands ripped out of the families legacy.
Greg McIntyre: Does it pass to the family like you wanted to in your will? Does it help the children? Does it help the grandchildren go to college? It’s sold to pay the state for that Medicaid lien, which is paid for by tax dollars that you paid your entire life. And you paid three times as much for that home. Then you borrowed from the bank with interest over 30 years. So you’re losing a lot of asset there. You’re losing a lot of value, a lot of money. So a will could or could not be the right place to pass your home and other assets. So you need to think about that.
Greg McIntyre: Thank you, Mr. Foundations. Look at that smile, look at that smile, the most interesting man in elder law. I appreciate that. I appreciate that, Mr. Foundations. Thank you for helping us with foundational documents.
Greg McIntyre: So just to recap, general durable power of attorney. Financial power of attorney allows someone to manage your financial situation if you are incompetent or incapacitated. Healthcare power of attorney lets someone manage your healthcare decisions only when you can’t. Living will says when you are in a situation where the only medical procedures that can be done, all they’re going to do is prolong your suffering. It’s okay to let me go and it’s your voice in the room. A last will and testament helps you draft how you want to pass property.
Greg McIntyre: Now, our wills are going to have a memorandum with them that lets you write your important personal items too in there even if you have five pages full of memorabilia or pictures or china or smaller things. So we make sure we pass things correctly to your loved ones, but you should consider if a will is the only way that you pass things and does the will really protect the assets the way you want.
Greg McIntyre: So how do we protect the house? Many people are interested in how do we protect the house. What do we do? Well, let’s talk about it. We can use quitclaim deeds. At what age should a person give away their home? What age do you think? I say there’s never a good age. In fact, if you look at the tenants of my practice, there’s two. One is to protect assets and also keep the senior and the client or the client in control of those assets for the rest of their life. And two is to leave available healthcare options like long-term care options for that senior so that our planning doesn’t step on that or hurt that.
Greg McIntyre: A quitclaim deed is just simply giving whatever you have, lease on the dog and all, to someone else. It could be to your children. You’re deeding the house to the children. But there’s danger in that. I have seen children try to throw their parents out of a house. You might say mine won’t but I still believe kids are nicer to mom and daddy when they’re still in control of the property.
Greg McIntyre: If you did that, it’s still accountable asset transfer under the Medicaid planning part. So remember in North Carolina, there’s some Medicaid rules there. Three years for assisted living is the lookback period, five years for nursing home Medicaid. So they look back on all transfers and if this was done within that time, they’re going to count that and deny that benefit or they’re going to make you transfer that quitclaim deed back into your name and make your children do that.
Greg McIntyre: So it needs to be done outside of Medicaid, lookback period and pass this property outside of the will or state. So that will, we went over earlier this quitclaim deed, it’s going to pass it before you die so it’s going to pass it right now. But you’re at the mercy of the owner.
Greg McIntyre: Also, there could be tax consequences here. So whatever you paid on the property to buy the property, you’re going to pass that tax value onto your children. If they sell it, they’re going to pay capital gains or what you paid for it versus what they sell it for. So it could add some taxable gain there as opposed to having a step up in basis with a deed transfer like a life estate deed or lady bird deed or pass them through the will or a trust.
Greg McIntyre: So this is what I’m concerned about with quitclaim deeds and giving your property away. What percentage of people over the age of 65 suffer from elder abuse according to the National Center on Elder Abuse? According to the National Center on Elder Abuse, 10% of people over the age of 65 … And I think that’s a really low number. I think that number should be way, way, way higher, probably double, triple or more higher. It should be much, much, much higher.
Greg McIntyre: So the reason I think that that should be higher is because I think that a lot of financial abuse goes unreported. Lots of financial abuse goes unreported for elders. And I don’t want that to happen to you or a loved one in your family. That’s why I’m not a huge fan of quitclaim deeds. I’ll do it if you need to but I’d rather see you protect the property because there’s ways to do it and still qualify for the Medicaid benefit or leave that qualification on the tape.
Greg McIntyre: So let’s talk about how to do that, life estate deeds can help. That allows you to stay in control of the property for the rest of your life. So it allows the senior or client to stay in control of the property, husband and wife or single person for the rest of their life. And then automatically outside of the will, not through the probate estate, pass it directly to a loved one, directly to a loved one.
Greg McIntyre: It must be done outside of the Medicaid lookback period, this life estate deed transfer. And it can be done … You could have a hundred properties, 10 properties, 5 properties, and put life estate deeds on all of them. And for Medicaid planning purposes, it’s not countable as an asset. It’s protected and safe unless you do it within that three-year lookback period for assisted living or five-year lookback period for nursing on Medicaid.
Greg McIntyre: So you have to be aware there that the lookback period still counts. It’s a countable asset transfer. But it passes outside of the will or a state and directly to loved one automatically when the last one of you and your spouse pass away.
Greg McIntyre: However, lady bird deeds, and who is this here? Who’s this pretty lady? That’s right, Lady Bird Johnson. So Lady Bird Johnson, the wife of Lyndon B. Johnson, his administration implemented the Medicare, Medicaid current modern day that we experienced and have, that system. A lady bird deed is also called an enhanced life estate deed. It’s built off that framework. It is not a countable asset transfer for Medicaid planning.
Greg McIntyre: The Medicaid system in North Carolina has carved out an exception and a policy for lady bird deeds, which is amazing and excellent and I love it. And you should too. You should take advantage of it. A lady bird deed beats the five-year lookback period. You could put one on today and even if you needed to access long-term care or assisted living, nursing home care or assisted living Medicaid, well then the lookback period, three years or five years, it’s okay. It’s absolutely okay.
Greg McIntyre: It’s not a countable asset transfer. That is awesome. I’m going to give that a big check mark, not a countable asset transfer for Medicaid purposes, beats the five-year lookback period. Beats it, not countable. Passes the property outside of the will and the estate, yes, yes. I’m so happy. And it passes it directly to loved ones.
Greg McIntyre: This one deed has been responsible for saving so much money in property for families. It is meant for your home and any surrounding property up to a value of $572,000 this year, $572k, so as long as it’s worth $572,000 or less. And it could also include contiguous attached properties, as long as those properties are touching. So it has to be the primary residence, so your home … Doing such a bad job writing home there, but you get it. Your home and any surrounding property up to a value of $572,000 immediately protects that. I give this two thumbs up, a big check mark. I’m going to put check marks all over the screen. It’s just I’m so happy about this deed. It has helped so many people and so many clients. I would urge you to seek counsel and see an attorney about whether it could be for you.
Greg McIntyre: That foundational work is a strong and powerful package. A strong and powerful package for many, many families for many, many families and can keep a lot of value and money and property. Do you think a home worth a couple hundred thousand dollars could help a family? Sorry, Lady Bird, we’re check marking in all over the place. Of course, it could. Absolutely, it could. A couple of hundred thousand dollars could absolutely send a lot of my kids to college. It’s just a beautiful thing, great thing for North Carolina. I’m going to give North Carolina a hand right now and our policy makers and legislature.
Greg McIntyre: So let’s talk about trusts. Many of you might say, “Hey, trust are for me,” and they might be, but let’s talk about whether that’s true or not. Let’s talk about the types of trusts. First, let’s talk about … I’m going to change my pen color here … revocable trusts. Many times you hear that as a revocable living trust. What does revocable mean? What does the word revocable mean? Well, it means you can revoke it. It means you have the ability to stop it. It means you as the creator can destroy it, can put money in, can take money out. You are in control of it, period. Just you.
Greg McIntyre: The word revocable specifically means capable of being revoked or canceled. So that’s the main difference between a revocable and irrevocable trust, capable of being revoked or canceled. What about irrevocable? What does irrevocable mean? Irrevocable means not able to be changed, reversed or recovered, final. This is final. Once you put it in place, it is in place. It is final. It cannot be reversed. It is final.
Greg McIntyre: We draft a couple of kinds of irrevocable trust. One is a Medicaid asset protection trust. Another might be a veteran’s asset protection trust. This is the one we do the most of, this irrevocable Medicaid asset protection trust. And you could place your home in a Medicaid asset protection trust, an irrevocable trust or money in an irrevocable trust. So you could put your home in here and you could also put money in here, either one.
Greg McIntyre: You could do the same thing over here with a revocable trust. You could do your home in here and money in here. The difference is, let me tell you the difference. Does Medicaid count? Assets, this home and this money in a revocable trust is yours. Is Medicaid counted as yours? The answer is yes, in a revocable trust like this one right here. In a revocable trust, Medicaid counts. The money and property is yours or your spouse’s. It’s no protection. So if we’re looking at Medicaid planning or long-term care planning, the revocable trust is not the option.
Greg McIntyre: Now, if we have a planning that we’re doing and we’re going to put money and property in there and we want to protect it against liability and make sure it’s there for future generations, and then distributed over time revocable trust and there’s long term care insurance in place, this might be a great tool. But for Medicaid planning purposes, no, we’re going to use this irrevocable trust. We’re going to use the Medicaid asset protection trust. It’s what we’re going to use.
Greg McIntyre: And we’re going to start that five-year lookback period the second that we put any money or property in here. So we’re going to start ticking, tick-tock, tick-tock. We’re going to put up some money and a home in there, and it’s going to start that five-year lookback clock ticking. If we sold the house, the money from the house sale could stay in the trust and not be affected by Medicaid or the lookback period. We could rent the house and the money stay in the trust.
Greg McIntyre: It gives us a little more flexibility than a lady bird deed does because the lady bird deed stays on that property until you pass away. That’s the way we could do it. You could sell the home but then you would simply have money and that might put you to run afoul of the Medicaid rules.
Greg McIntyre: So those are a couple of differences in trust, revocable and irrevocable trust, and how we use them in Medicaid planning. And if you have any questions about that, please feel free to ask. Call us, go to mcelderlaw.com. I have a number of videos just on the trust issues, or you can read about some articles we’ve written on that or give us a call, 704-749-9244. We’ll be glad to schedule a consult and help you with those issues.
Greg McIntyre: Hey, special thanks. I’d like to give a special thanks to all the veterans out there. Thank you for your service. I am a veteran of the US Navy. I was in the US Navy for four years and I enjoyed my service. Some of it was tough, but I’m glad I did it and it was a great vehicle to get me where I am and it made a man out of me. There’s no doubt about it. I married my wife, met and married my wife while I was in the military. Living in San Diego, and I’m very proud to be a certified attorney through the US Department of Veterans Affairs. And I handle veterans aid and attendance pension benefits on a regular basis for veterans.
Greg McIntyre: Now, veterans aid and attendance pension benefits are a special kind of benefit that you as a veteran, or a spouse of a deceased veteran, might qualify for. It can give anywhere between say $1,280 and $2,800 per month to a veteran or a spouse of a deceased veteran if you qualify. And you received back pay to the date of qualification. So imagine how that money can help with your everyday needs, especially for in-home assisted living or nursing home care. Nothing makes me happier than to have someone who has a shortfall. They make much less than the private pay of an assisted living facility.
Greg McIntyre: Their family is paying the remainder and has that burden, or they can’t qualify for Medicaid for assisted living because they’re over the income limit, but way under how much it costs to pay for the monthly care. We qualify them for veterans aid and attendance pension benefits, and lo and behold, they’re making more money now than it costs and they deserve that money. It’s their pension that they didn’t realize they were eligible for based on the fact they were in the military simply during a wartime event and some other factors.
Greg McIntyre: So you need to check with our office to see if you’re eligible. If you’re a veteran or spouse with deceased veteran, go to mcelderlaw.com to learn more about veterans aid and attendance pension benefits, or call us at 704-749-9244. Generally, in a five-minute or less phone call, we can do an assessment on veterans aid and attendance pension benefits and tell you whether we can proceed or not with that benefit.
Greg McIntyre: A long-term care insurance, I told you when we started we might cover a little ground with long-term care insurance. What a great, great thing to have in place that not everyone can necessarily afford, or think they can afford, and that very few people have. But if they did have it, they would be able to pay for in-home assisted living and nursing home care private pay, if they put that in place. You need to put that in place before you’re 70, 71 years old or your age out of being able to put that in place.
Greg McIntyre: The less health care problems, the less health problems you have, the better. But I’m going to tell you right now it’s a great option and many more people should take advantage of it than do. And as you see on the right here, there’s traditional policies, hybrid policies, asset based products using qualified and non-qualified funds and many other options. If you want information on how to qualify for long-term care insurance, call our office, 704-259-7040 or 704-749-9244.
Greg McIntyre: And we’ll help you. We will absolutely help you and direct you in the right direction. We work with people all the time to get these types of benefits and this type of insurance. So call us, 704-749-9244. There’s so many different types of products out there and options. The industry has been totally overhauled over the last several years, the last 10 years, so you might not have it but could qualify for it and it could save everything that you have. So give us a call.
Greg McIntyre: Hey, I’ve worked very hard to create things like this, the estate planning worksheet. We’d love to be able to give you that. Come in our office to receive that or call us, 704-749-9244. It’s my visual way to explore and look at the estate planning and elder law with financial benefits with your home, passing it through trust, a life estate deed, or lady bird deed directly to loved ones avoiding this situation right here where you pass it by will. It goes through the probate estate like we were talking about the liens attaching here. And instead of it getting to the loved ones, it is absolutely taken and sold to pay for that long-term care Medicaid or assisted living Medicaid lien.
Greg McIntyre: I talk about beneficiary assets on this or illustrate that graphically how to pass those, how to pass other investment assets and retirement assets directly to loved ones easily even without using trust, so a little cheap advice there. These are extremely nice tools though. I’ve spent a lot of time conceptually thinking about this and putting it in place. I need to make a board game out of it, but we’d love to give you the estate planning worksheets, so call our office.
Greg McIntyre: Something else that I’d love to be able to provide you with is Saving the Farm. I spent over two years researching Saving the Farm. This is a book that is a book, audiobook, and ebook that I would love to give you. I would love to give you this book. I spent literally over, I mean, tens of thousands, tens of thousands of dollars developing this book. People think you make a lot of money writing books, not true. Not true for me, not in my experience because this is a labor of love. It has been Amazon’s number one elder law book in the past, and I would love to be able to provide it to you.
Greg McIntyre: You can always go on Amazon and buy the book. It’s about a $20 value. I want to say it sells for $20, maybe $19.99. But I also spent over six months in the editing process on this. This book is written for you on how to protect your hard-earned money and property. I literally believe that it’s a legal maze that you’re navigating out there simply by being an American and aging right now, that sometimes you need help with. And I wrote this for you so that you could get some practical help and educate yourself. Even if you don’t come see me, you should read the book. Call our office to get the book.
Greg McIntyre: We have an amazing team. This is just some of our team. We have a lot more people on our team than that, and attorneys. Brenton does a great job in our office as well and has an LLM in tax. That’s what this means over here, an LLM in tax. So he helps research and advise us on some of our tax issues and problems as well.
Greg McIntyre: I would love to be able to see you in a consult and advise you. I’d love to be able to give you this estate planning worksheet, I’d love to be able to provide you with that. I’d love to be able to provide you with an autographed copy of Saving the Farm. I would love to do that. Please give us a call, okay? Give us a call and I’d love to be able to do that. I’d love to have you meet our team and our attorneys. Call us. Call us at 704-749-9244 with any questions. Any questions you have, you call me. And we are going to address those.
Greg McIntyre: Thank you so much for your time and your attention. Again, I’m Greg McIntyre with McIntyre Elder Law, helping seniors protect their assets and legacies. And I really, really enjoy what I do. Thank you so much for listening to the estate planning and asset protection webinar/seminar that we’ve given today and call me with any questions, or visit us online at mcelderlaw.com.
Greg McIntyre: So much for watching the estate planning and elder law seminar. I really enjoyed it. I get pumped giving these. I love what I do. If you can’t tell, I love to write about it, blog about it, do seminars on it. And I hope you enjoyed our webinar style e-course on estate planning and elder law and all those issues. So if you have any questions, go to mcelderlaw.com. That’s M as in Mike, C as in Charlie, elderlaw.com or call us at 704-749-9244, 704-749-9244. Ask for Greg. Have a great day.
Get 2020 Vision in 2020! Greg lays out a 4 step plan to FINALLY get that much needed plan in place that brings with it the peace of mind and clarity you so justly deserve. Learn More: mcelderlaw.com/estateplanning
Happy new year, happy new year’s resolution, I’ve been working on it. I love this time of year. I love the play on 2020 too, I can’t believe we’re in 2020 right now. It’s a new year. It’s a new decade and it’s a perfect time to make a new plan and let me tell you what I mean. I’ve been making plans, I’ve been meeting with Brenton another attorney in our office. We’ve been making plans. My wife and I are working on plans for our business and working on plans for our personal. We’re working on personal plans. This Saturday we’re meeting and really concentrating on planning what we want to do this year. We have a child in college, we have five more at home and we have some goals we’d like to hit ourselves this year as far as maybe trying to save a little money and maybe pay down some student loans, things like that. Just talking about some different things we’re working on and trying to get on the same page and make sure we’re both working together.
I love this time of year because it gives us those opportunities. And if we plan right, I’ve found if I plan correctly, if I really dig deep and do the work, then I can come out of this planning period going into the new year because there’s really nothing different about this time of year. It’s another trip around the sun and we celebrate it and that’s great but you could plan continuously. I just kind of take this time out several weeks and weekends around this time of year to really engage in some planning so that I can set up the year. I find that I have peace of mind and kind of run on autopilot when I can really get my plan down, especially if I have multiple people that are on the same page with me that are working on the same goals and plans, then it’s easier to get there and it’s fun to get there together as a team.
So that’s what we’ve been working on. Hey I’m going to be on Charlotte Today Show coming up, but it’s going to be January 22nd, Wednesday, January 22nd and we’re going to be talking about just this, about getting clear vision in 2020, about elder law is clarity. And what I mean when I say elder law is clarity, I mean it helps you get clear. It helps you see clearly what you want and I have a little formula for how to get there. Okay? And let me tell you what that is. Want to hear it? Here it goes.
2020 vision in 2020, what that means to me is the same thing I’m engaging in right now with planning with our firm, with planning at home personally. Try to involve the kids in the planning too and talk to them because I want them to set goals. I want them to have peace of mind. I want them to have direction. Ever try to hit a target or how about ever try to achieve something without having a target? I mean it’s much better when you can have your targets to find, when you know what your goals are and what you’re working on. So from an estate planning perspective, it’s an amazing time for families to get together, same way, to talk husband and wife, to talk with the kids if you need to, to talk with those people who you might want to be your financial agent if something happened or make healthcare decisions for you or be the executor on your will. Tell those people, communicate, families, everything works better with open communication.
So I would say first review what you have, review the estate planning documents that you have. If it’s a will, we see wills all the time that might not be probatable because they don’t have the requisite number of signatures or notaries or the correct language. They’re not self-proving. Maybe you’re leaving something to your wife and maybe it’s your ex wife or, maybe she’s named in there. I don’t know, there could be a lot of changes. So maybe people have passed away, maybe you’ve accumulated more assets, but reviewing is extremely important. So that’s the first step in my opinion.
How about your powers of attorney? Do your powers of attorney meet your needs? Do you have backups? Because if not, and say your spouse is your attorney in fact, your agent, and then you did those 10 years ago, heaven forbid something happens to your spouse that leaves you out in the cold. So we want to put a secondary person that you trust 100% to be able to handle your financial decisions so we can implement plans.
Take inventory, number two. So first review, review first, review what you have. That’ll put you in a good mindset of bringing you up to date. Then number two, take inventory of what you have now. Take inventory of what you have now, if you want a good workbook to work through, and it’s a few pages, but a good workbook to work through, sign up for our e-newsletter and I have it set up to send it to you automatically and it’s our estate planning workbook, okay? Go to mcelderlaw.com. M-C-E-L-D-E-R-L-A-W.com. Mcelderlaw.com. Sign up for our e-newsletter and you can sign up right there on the front page of the website and it will give you an estate planning workbook, okay? And it’ll allow you to list your inventory, who your family is, right? Inventory your family and inventory your assets, both, and this workbook will allow you to do both.
And that’s extremely important because what that’s going to do when you review and you think about what you had and how things changed and how your documents are working, how your estate plan is working or not working for you now. And then you review your assets. Now you’re in the mindset, you have your head wrapped around exactly what you have. I always find that I have anxiety, no kidding, when I have a lack of data or there’s negative data or bad data, scary data that I ignore, right? Or that I’m ignoring. Right? So there’s either usually when I’m feeling anxiety at work or at home or somewhere else it’s either I don’t know everything, I don’t have all the facts or there are facts that I kind of know, I’m just ignoring them. And trust me, I can go on ignoring things like that for a long time. I think we as human beings can ignore or let things go for a long time or ignore bad facts or bad data.
So you want to pay attention. Those gut feelings are evolutionarily what tells us that something’s wrong, okay? Or we need to do something. I’m still learning to listen to that gut to say, “Okay, I’m feeling something over here. Let me look over there and really find out what’s going on. Look under the hood. Maybe it’s in the business or something else,” and really fix it. Okay? Same thing with estate planning with our families, with our assets, with our legal plans.
So once I dig through the data, good or bad, good or bad, at least I know what’s going on. I have control at that point and I can make changes or fix things. That’s extremely important. And that’s what taking inventory is all about. Whether you want to or not and you know you’ve been putting it off because I put it off too, take inventory. So one is review your docs, two is take inventory, and then three, define your goals, okay? Define your goals.
What I mean by defining your goals is what are your plans? Are your plans to take a cruise the last 10 years of your life? Are your plans to downsize your home and buy a home in a senior community or active older adult community? Are your plans to protect assets and maybe help send the grandkids to college or really preserve the home and pass that along to the kids? There’s a number of worthwhile goals out there, but let’s define what those are. And I find that my goals become really clear, elder law is clarity remember, and we’re in 2020 so we want 2020 vision in 2020. I get really clear, I get that 2020 vision and that clarity once I know all the facts. And it’s easier for me to define and set my goals.
So then once I’ve set my goals, meet and discuss, that’s number four. Meet and discuss. Meet and discuss with the family if that’s important. Some people don’t want to discuss it with the family and for good reason, but at least either way you can always meet and discuss with a professional. A professional would be, for estate planning and elder law, who do you know that might be able to help? Oddly enough, we would be glad to help. If you would like for us to meet you and talk about a new year and a new plan and peace of mind. I find that peace of mind, so much peace comes along with knowing the data, setting the goals and then if I need to meet with a professional. Hey, I’m all about meeting with a professional to get things done.
Give us a call, (704) 749-9244 or go online, contact us at mcelderlaw.com. And don’t forget to sign up for our e-newsletter on our website so you get that estate planning workbook. Have a great evening.
Happy New Year to everyone out there from me and the McIntyre Elder Law team! Exclusive right here 2020 we will be working extremely hard for clients and adding nursing home litigation to our areas of practice. We will always fight for you! Happy New Year!!!
Happy New Year! Hey guys. This is Greg McIntyre with McIntyre Elder Law and I’m going to go home to party hard with my wife and children and my wife’s mother tonight, and we’re going to stay in there. We’ll probably get to bed before midnight, but I wanted to wish everyone out there a happy New Year. I am going to meet with Brenton tomorrow. We’re going to be doing planning. We’re going to start off with a workout and do planning all day on the new year and I’m excited about that.
There have been some amazing things that have happened with our firm this year. We’ve had a lot of growth over the last two years. I’m extremely grateful and thankful for that. There have been some bad things and some sad things that have happened this year also. I’ve been reflecting around this time of year on the great things and the not so great things. But I think for me, even when the not so great things happen, I’m able to review and see what I could have done differently, or how we can make things better. And that can mean anything from working with someone, to client services to, what kind of man I was, how I ate during the year.
My dream is to get up at 4:00 every morning and knock out a couple of hours of exercise and maybe some meditation before I start my day. But that doesn’t always happen mainly because life happens. So I’m always trying to get there, but I never quite get there. But I promise you that I will continue to try to be an educated attorney in our practice area, estate planning and elder law. That our firm will have a commitment to client and customer service to help you and your family achieve your goals, whatever it may be. Estate planning, probate, probate litigation, and I’d like to announce… That was Southern… Like to announce a new area of law that we are implementing within our firm that’s rarely done, but needs to be done because it is so needed. This is the first time I’ve ever said this to anyone outside of a small circle of people. We will start our nursing home litigation practice in 2020. We will start our nursing home litigation practice in 2020.
I was in court today with a woman who is almost 90 years old. And it was a litigation case. And I was helping her against another family member and we won. We were very lucky, very gracious. But I love to fight hard for clients and people out there that know me from another life when I was doing nothing but courtroom and trial litigation. I think would tell you that I fight extremely hard for our clients. We’ve been very effective in fighting for clients and we’re going to be.. I’m excited because I feel like we will be very effective at fighting for people who have been injured, hurt because of the negligence, malfeasance, bad actions of nursing homes out there. So I’m putting people on notice and I’m letting potential clients know and letting you guys know that I enjoy what I do. It’s not always roses. It hasn’t been always roses this year. I promise you we will keep working hard and I’ll work to be the hardest working attorney out there. If I can, I will try.
Please let me know if you ever have any questions, call us. (704) 749-9244 or online at mcelderlaw.com. Thank you to each and every client. I hope you have a great night. Be safe and give somebody, hopefully family, a hug and kiss tonight. Happy New Year.
As we enter the new year, you may be asking yourself the same question you likely ask every year: “how is this year going to be different?” Every new year, we make our resolutions and our goals but, despite our best intentions, we tend to somehow fall short of our goals. It’s not because of lack of ambition or willpower. We fail to reach our potential because we lack the tools and the plan necessary to succeed. Another way to put it is that we lack clarity.
It makes sense to fall short of a goal if you lack clarity; after all, how easy is it to hit a bullseye if you’re wearing a blindfold. Therefore, the first step to success is to gain clarity.
So, what is clarity? Clarity means a clear vision, a workable plan and tools to accomplish that plan. Elder Law is clarity. It’s the bright blinking exit sign in the labyrinth of legal issues you encounter as you age. Elder Law gives you a vision, a workable plan, and tools to accomplish that plan. Without clarity, your attempt to protect your assets, preserve your legacy, and safeguard your wellbeing is shrouded in a fog like haze, making it easy to run headlong into the legal pitfalls that tend to befall us all.
Too many people suffer through the legal maze of aging. Too many people are taken advantage of. Too many families suffer avoidable hardship. This is a call to action. Let’s gain 2020 vision this new year. Allow McIntyre Elder Law to provide you with clarity. Our experienced attorneys are ready to help. Call (704) 259-7040.
A power of attorney document should be straight-forward, right? You just name a person or two in a cookie cutter document and they act as your agent . . . easy peasey. As you probably guessed, since I’m writing a whole article on it, a power of attorney document must be tailored specifically for you.
Let’s begin by defining a power of attorney. It’s a document where in which you name a person to act on your behalf, as if they were you, for legal, financial, or healthcare purposes. The person who gives the power is the “Principal” and the person who receives the power is the “Agent”. The “legal and financial” power of attorney is known as the General Durable Power of Attorney; this is separate from the “Healthcare” power of attorney. General means that it covers, generally, all legal and financial matters. Durable means that the power survives incompetency, incapacity, or lapse of time.
Now that we have an idea of what the Power of attorney is, let’s look at some questions you should be asking yourself with regard to your power of attorney.
Does it Look Legit?
Okay, so this doesn’t sound like it should matter, but it does. Your power of attorney document, by its nature, is a document that is shown to a third party—that is, a person other than the principal or agent. The agent using the power of attorney needs to be able to use it and if a third party e.g. bank questions its legitimacy, it could delay very important tasks the agent needs to fulfill.
Does it give the requisite Authority?
Just because a power of attorney is general, does not mean it gives your agent the necessary powers to meaningfully act on your behalf. Some powers of attorney fail give certain powers that your agent would need to protect you in a variety of situations. But, just as important, some powers of attorney do not make it clear what power is being given.
Let me explain by way of example: you are named as agent and in the power of attorney document it says that you have the authority to engage in banking transactions. You go to the bank, and for a good reason, you ask to close out the principal’s bank account and have a check made out for the funds in the account. The bank asks to see the power of attorney document and you point to the provision that says you have the authority to do “banking transactions”. But what does that mean? Surely “banking transactions” doesn’t include everything that can be done with regard to a bank account. The bank wants to err on the side of caution, so they refuse to do what you ask even though you have power of attorney. Your stuck and all because the document isn’t specific.
When is it Effective?
You should ask when the power of attorney actually becomes effective. Some people have what’s called a springing power of attorney. A springing power of attorney means that the power only “springs” forth when the principal becomes incompetent, incapacitated, or otherwise unable to act for themselves. If the power of attorney is not springing, then it becomes effective immediately upon signing.
So, which one should you have? Well, the springing power of attorney makes some people, whom may be hesitant to give away power, more comfortable. But, its inefficient. For example, how do you prove someone is incompetent? Maybe you need to get their primary physician to write a letter. This can take days or even weeks to accomplish.
You name and agent so that they can act on your behalf, they step in and make day-to-day decisions as well as big decisions, and you want them to be able to make these decisions immediately when they’re needed.
Delay can cost money, assets, and inheritances. It can also subject the principal to healthcare scenarios that they specifically want to avoid.
Does my Power of Attorney Work for Me?
Lastly, you need to ask: does my power of attorney work for me? If you want a review of your power of attorney documents or if you have questions about your estate plan, let the experienced attorneys at McIntyre Elder Law assist you. Call us at (704) 259-7040.
Greg, Stef and the 3 littles bake Greg’s late grandmother’s recipe for Honey Bun Cake. Great holiday tradition and show to remember loved ones, have a good time with family and bake a DELICIOUS CAKE! We ate the whole thing by day’s end.
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McIntyre Elder Law 112 S. Tryon St. STE. 760 Charlotte, NC 28284