Christopher B. Kroll & Associates – Elder Law Solutions

After 2-years of no cost of living adjustments for VA Pensions, effective December 1, 2011, Veterans and surviving spouses will see the following increase in Pension awards:Married Veteran & Spouse:  $2,200
Single Veteran:  $1,704
Surviving Spouse:  $1,094
Spouse of a Living Veteran:  $1,338These figures represent a 3.6% increase in pension amounts!

Many families overlook the A&A Pension as it pertains to veterans who are still independent, but have an ill spouse.  Keep in mind that in this situation, if the spouse’s medical expenses completely depletes their combined monthly income, the Veteran can file as a Veteran with a sick spouse, and be eligible for $1,338

     Having power of attorney over a family member is a big responsibility and sometimes it makes sense to share that responsibility with someone else. But when two people are named co-agents under a power of attorney, conflicts can arise. Unfortunately, if the conflict can’t be resolved, it may be necessary to get a court involved.  If you are acting as a co-agent under a power of attorney, but you and your fellow agent disagree on a course of action or one party has stopped participating in decision making, what can you do? The first thing is to check the wording of the power of attorney document to see if it sets up a procedure for resolving disputes. If the power of attorney itself doesn’t help, you should contact an elder law attorney. The attorney can tell you if your state’s power of attorney laws offer any guidance. There may be a state statute that deals with disputes. If the dispute still cannot be resolved, the final step may be to file a petition in probate court to let the court decide it. Or if the court finds that one of the agents is not acting according to the incapacitated person’s best interests, it can revoke the agent’s authority. Unfortunately, taking the matter to court takes time and money.

   If you have been appointed the trustee of a trust, this is a strong vote of confidence in your judgment and integrity. Unfortunately, it is also a major responsibility. Following is a brief overview of your duties:

1. Fiduciary Responsibility. As a trustee, you stand in a “fiduciary” role with respect to the beneficiaries of the trust.  As a fiduciary, you will be held to a very high standard, meaning that you must pay even more attention to the trust investments and disbursements than you would for your own accounts.
2. The Trust’s Terms. Read the trust itself carefully, both now and when any questions arise. The trust is your road map and you must follow its directions, whether about when and how to distribute income and principal or what reports you need to make to beneficiaries.
3. Investment Standards. Your investments must be prudent, meaning that you cannot place money in speculative or risky investments. In addition, your investments must take into account the interests of both current and future beneficiaries.
4. Distributions. Where you have discretion on whether or not to make distributions to a beneficiary you need to evaluate his current needs, his future needs, his other sources of income, and your responsibilities to other beneficiaries before making a decision. Often the most important role of a trustee is the ability to say “no” and set limits on the use of the trust assets. 
5. Accounting. One of your jobs as trustee is to keep track of all income to, distributions from, and expenditures by the trust. Generally, you must give an account of this information to the beneficiaries on an annual basis, though you need to check the terms of the trust to be sure.
6. Taxes. Depending on how the trust was established, the trustee will have to file an annual tax return and may have to pay taxes.  You will need to keep good records and turn this over to an accountant to prepare.
7. Delegation. While you cannot delegate your responsibility as trustee, you can delegate all of the functions described above. You can hire financial advisors to make investments, accountants to handle taxes and bookkeeping for the trust, and lawyers to advise you on questions of interpretation.
8. Fees. Trustees are entitled to reasonable fees for their services. Determining what is reasonable can be difficult.   It would make sense to consult with a professional experienced with trust work to determine what would be normal fees.

In short, acting as trustee gives you an opportunity to provide a great service to the trust’s beneficiaries. Just keep an eye on the responsibilities described above to make sure everything is in order so no one has grounds to question your actions at a later date.

      Individuals engaged in estate planning often get panicky when they hear the word “probate.”  When the term hasn’t been fully explained by a probate lawyer (and sometimes even when it has), it conjures visions of long waits, loss of inheritance, and many other hassles for heirs of an estate.

     To calm these fears (and to avoid working with an attorney), many people consider the idea of adding one or more of their children to their bank accounts.  Generally speaking, each “joint tenant” of an account has complete access to the money, but when one dies, the entire amount becomes the property of the other joint tenant(s).

There are potential pitfalls to adding children to assets:

• As it has already been mentioned, all joint tenants have access to the funds in the account.  This means that either party can withdraw money at any time.  If the child added to the account is not entirely trustworthy, this can be a devastating reality when the money is used inappropriately.

• In a case where the parent passes away, any money received by the child can be considered a gift, which means that it is subject to a variety of laws and may be taxed.  

• Creditors for both parties can have access to this account.  That means that if one joint tenant dies (even the one who is not in debt), the other’s creditors can go after the money they jointly held. 

• Money left in the event of the parent’s death will only be accessible to the other named tenant(s).  If one child has been responsible for the majority of a parent’s elder care and therefore is on the account, he or she will likely have no legal responsibility to share those funds with other siblings.  Again, trustworthiness is an important issue.

If you are considering adding a loved one to a bank account as a means to avoid probate, it’s important to at least talk to an  attorney about your options. 

When is someone considered incapable of making their own decisions?  Old age or physical disabilities are not sufficient reasons to appoint a guardian or conservator; there must be evidence that the individual is unable to make informed decisions or to manage his or her affairs effectively.  Often, a physician is asked to give an opinion or a clinical judgment on a person’s capacity.  The assumption is that the physician will make a thorough evaluation of the individual’s physical, cognitive, and psychological levels of functioning.  Ultimately, it is the probate court that considers the medical evidence and makes a determination of capacity or incapacity and whether or not someone needs a guardian or conservator.  The court evaluates the individual’s ability to handle day to day activities,  what level of daily assistance is required, and the individual’s decision-making process.  There is no single legal standard that can be applied when legal capacity is at issue.
The probate court follows a two step process in evaluating an individual.  First, a determination is made as to the individual’s ability to make informed personal or financial decisions. There must be clear and convincing evidence that the individual is impaired.  Second, the court makes a determination if the appointment of a guardian or conservator is necessary to protect the individual.

Most people that have long-term care needs want to stay in their homes.   Services to keep and individual in their home are available from for-profit companies, local non-profits, churches, friends, and family members.   Individuals that can privately pay for these services often have more choices than those who can’t.  The local Area Agency on Aging is a good starting point when searching for services available from the community.  In addition, professional care managers (geriatric care managers) are available to develop a plan of care based upon an individual’s ability to pay.  The MI Choice program is designed exclusively for individuals who require nursing home level care but wish to remain in their own homes.  The vast majority of those individuals that qualify for  MI Choice reside in their own homes, in the home of a relative, or in assisted living facilities.  To qualify for MI Choice, applicants must pass the same eligibility screen that is used for nursing home residents.  Unfortunately, this program currently has a long waiting list.

Understanding the long-term care needs of individuals and the options designed to serve them requires familiarity with the concept of activities of daily living. Activities of daily living include activities such as toileting, eating, bathing, dressing, and transferring.  Assessing an individuals’ ability to perform the activities of daily living is generally done by health care and social service providers.  A sliding scale is used and a score is assigned based upon whether or not the individual can perform the task independently, with suggestion or supervision, with some assistance, or is totally dependent on caregivers to perform the task.

An evaluation of an individual’s abilities is often required for a claim for benefits under a long-term care insurance policy.  In addition, to qualify for Medicaid nursing home benefits, an individual must be assessed on how well he/she can perform the activities of daily living.  An individual who can independently perform the all the activities of daily living is not likely to be eligible for publicly funded long-term care services.

     For many clients, the revocable living trust can be used to avoid probate, provide lifetime management in the event of disability, and to save taxes. The trust is established during the client’s lifetime.  The trust can be amended and revoked at any time.  The client usually serves as the initial trustee and has complete control over the trust property.

     Should the client become incapacitated and not able to handle trustee responsibilities, a successor trustee is named.  Property held by the trust is distributed by the successor trustee upon the client’s death according to the terms of the trust agreement.

     When someone dies, everything that he/she owns will go to someone else.  How the assets are owned will affect the disposition of the assets at the person’s death. Only assets held in the individual’s name will pass to heir or beneficiaries.  Joint assets and life insurance policies that have beneficiary designations will be distributed at death without regard to any provisions in a will or trust.

     The individual may want to have specific assets or specific amounts of money be distributed as a gift.  The specific gift must be described accurately to avoid confusion.  Transfer of specific items can be done easily by listing the asset in the will or trust.

     A minor is a person under the age of eighteen years.  A guardian of a minor is an individual appointed by the court who has legal custody of the person or property or both of an individual under the age of eighteen.  A guardian of a minor child has the powers and responsibilities of a parent regarding the child’s support, care, education and welfare.  A guardian shall act at all times in the child’s best interest and exercise reasonable care, diligence and prudence.

     Some guidelines when choosing a guardian for your minor child are:

• Do your children know this person and are they comfortable around him or her? The potential guardian may be suitable in terms of finances and experiences, but would your kids be OK living with that person?

• Is this person fit to raise a child? Sure, your kids may love this person now, and the person may seem great around kids at parties or family gatherings, but would he or she be able to handle raising them on their own?

• Would the person be able to handle the huge task of dealing with your children’s grief?

• Does your potential guardian share the same values as you?  How closely aligned are they with your beliefs about things such as money, education, religion, discipline, love, etc.?

• Who lives close enough and is accessible to serve as your child’s short-term guardian?  Choosing this person is critical in case your chosen guardian is temporarily unavailable or lives out of state at the time of your passing.