One of the most important decisions a sports team can make is the selection of the people on their team, specifically who they 
are going to place in the various positions to best suit their needs. The Panthers are big in the news right now, just as football season is coming back around, and the city is rallying around them hoping that they will do well. And what happened? The star wide receiver, Kelvin Benjamin, tore his ACL and will be out for a long time. He’ll need about a year for that, so he’s out for the season, which is unfortunate.
Last season he caught 73 passes and scored 9 touchdowns. He’s going to be missed. This event led me to do some thinking: what do you do without your star wide receiver or your MVP? If the Panthers could have planned to not lose him, do you think they would have done it? I do. So how can a team plan and make the right choices to avoid losing their MVP? It is very difficult to do so, because you can’t predict everything that is going to happen.
This is why you have back-ups and alternative players for your team. You absolutely have to have people who are ready to come in and play for you when your MVP is out for whatever reason. I’ve spoken about that a lot, so in regard to your important legal documents – such as your power of attorney and healthcare power of attorney – you want to make sure that your MVP, who is your attorney-in-fact, is a strong player. You also want to ensure that whoever you name to be second in line – a secondary beneficiary, in some cases – will be a strong option to come in and make decisions. If for whatever reason your star MVP becomes unavailable to make the big decisions for you in your life, even temporarily, your secondary should take on this role without a problem.
Different documents require different types of decisions: one requires a financial decision and what you’re going to do to pay your bills and handle your resources. That would be a general durable power of attorney. Then you’ve got someone to be the attorney-in-fact for your living will, someone that you feel can make the decisions that you want made. They’re not always the same person. Therefore, your healthcare decisions are handled by the healthcare power of attorney. And you have to understand, we use those as two totally separate documents; we don’t conflate or try to mix those. We separate those documents so it’s extremely clear which statute we’re operating under and what your wishes are under those documents.
The legislature has actually been very wise in separating those documents, and I’ll tell you why it’s a beneficial decision on their part: sometimes, you don’t want the person who’s making your financial decisions to be the same person who’s making your healthcare decisions. It happens. Most people use the same person, but why might you want these two individuals to be different people?
Some people have family members that could never pull the plug. You want to make sure that you have two different people appointed so that you can ensure that they will honor your wishes. What about people who are in a position to gain from you financially? You most likely do not someone who is about to inherit a lot from you to be making your end of life decisions. It’s common sense.
Many people elect their spouses or their children to be the primary attorneys-in-fact – and rightfully so. But you are going to want to have those subs, those secondary people to come off the bench who you can really count on.
You have also probably heard of the disastrous effects of Tropical Storm Erika down in Florida. I suppose they saw it coming, but didn’t anticipate or understand the devastation that she’d bring with her. This is just another reason why planning is key: you never know when something disastrous and catastrophic will come your way. Erika shut down an entire state, and this comes incredibly close to the 10-year anniversary of Hurricane Katrina. Looking at the history of these events, we can deduce one thing: there are things that can happen in your life that you know are coming, but you don’t anticipate the effects; and then there are events that will completely blindside you and knock you off your feet.
By now, you have most likely thought of your MVPs – this could be your husband, your wife, your children, or other close family members and friends, and that’s great. But now you need to start thinking about the other players on the team. Who is going to be your offensive lineman? You want the right player for the position, and you want the right tools for the job. So when I sit down with clients, I’m going to talk to them about who they’re putting on their team and what documents they have in their toolbox.
For instance, if you’re planning for a Medicaid situation, you may do a tenants in common deed, which is where you piece out a percentage of a property and gift it to a family member – in this case, maybe one of your MVPs such as your child. Thankfully, that’s not countable under a nursing home Medicaid or a long-term care Medicaid where there’s a 5-year look back period. That’s a different deed you can use for planning purposes, another tool in your box. Under a VA Aid & Attendance planning purpose, however, we might want to gift a property that’s down the road from your home, where you have a small rental on there. It might be a good play for you to keep that in the family. You could deed that directly to a family member or a child, thereby once again calling on your MVPs to move that asset and have it not count. Good news: there is no look-back period for veterans for VA Aid & Attendance planning, where you can get an extra income per month to use when you need it to cover the cost of nursing home or assisted living care. An individual veteran can actually get up to $1,750 per month; they just have to have served one day during a war time event. And I don’t mean in the thick of battle, I mean within the military sometime during a war.
Different situations therefore require different tools for the job, just like different players are fit for different positions, and different plays are used against various sports opponents. You have to know what tool to use for the job, and what play to make on the field.
So let’s say you enter into long-term care – and let’s face it, 70% of us will fall under that category eventually. You want to make sure that what you have, your assets and everything else, are protected are inheritance for your children. To do this, you’re going to need to research and pick the right tools. Deeds are a great starting point to see what play you can make and what you can do to ensure that your money stays in the hands that you want it to.
One play that you can make is using the traditional life estate deed. This tool has been around for years and years, and the property can be passed automatically to the remainder beneficiary without having to go through probate. It’s going to pass directly to the grantees on the deed. Seniors, for instance, can reserve a life estate for themselves so that the two of them control it until the last one of either of them passes away. The life tenant also maintains complete control of the property while he/she is still alive. Liens are not usually attached to the real estate if the deed is recorded after the death of the life tenant.
So if you are in good health and you are a senior, and you’re using life estate deeds to put beneficiaries on your property, it could be a good tool for you to use. The drawback, in my opinion, of a traditional life estate deed – besides the fact it doesn’t avoid the look back period – is it doesn’t allow you to change your mind. Let’s say you want to sell that property or mortgage the property. You have to get your grantees or beneficiaries, whoever they are, to come in and sign off on the sale or the mortgage of that property. Life estate deeds therefore do not grant as much control on the part of the seniors as I would like to see.
Pre-planning is therefore so important. You don’t want to find yourself scrambling at the last second when your star wide receiver is out on an injury and you have no one else to rely on to make those important calls in your life. You want to have someone reliable to come in off the bench and keep the game going. In the long run, it will save you precious time and money.
If you would like to sit down and discuss your current plan and situation with me, I would be glad to help you out. Give us a call at the office so that we can schedule a time to chat: 704-259-7040.
Call me if you have any questions:
Greg McIntyre
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby
704-259-7040
