Elder Law Issues

We ask our estate planning clients about organ donation. Some say yes, they very much want to be an organ donor. Others say no, they simply do not want organ donation — whether for religious, ethical, or other reasons. Some do not care, and do not want to include any directions about organ donation.

We can include the client’s wishes in the documents we prepare. But we make clear that it’s not our documents that count most — it’s whether they have signed up as organ donors (or not) with the Arizona Department of Transportation — Motor Vehicle Services.

In this week’s podcast episode, we explain why it’s still a good idea to make your wishes clear in your estate planning documents. We express no judgment about your decision — but we’d like to document it appropriately.

Who should you name as beneficiary on your retirement account? Your spouse? Your trust? A charity? And what about contingent beneficiaries?

Join us for an exploration of the confusing and uncertain world of retirement account beneficiary designations.

If we are asked to prepare documents for someone, we will insist on meeting with that person — alone. We don’t doubt that your intentions are good, but your father (or mother, or sister, or neighbor) will be our client, and we must insist on making sure we hear their voice, not yours or someone else’s. Also, we want to be able to testify in any future case that it’s our regular practice, and we always meet alone with our client.

How common are will contests? And how often do they succeed?

If you’re concerned about the possibility of someone contesting your will, we have some good news for you. It’s not very likely, and it’s especially not very likely to be successful. Join us for more discussion.

We frequently get calls that begin with “I need a power of attorney for my mom”. Sometimes, of course, the caller is asking about their dad, or child, or other relative. Sometimes it’s even about a neighbor or friend.

In this podcast episode, we talk about the legal conundrum: if your mom can’t make decisions for herself any longer, then she probably can’t sign a power of attorney, either. And if she can sign a power of attorney, then she would be our client.

What does it mean when a personal representative has to “post a bond” in a probate case? Is it the same thing for a conservatorship (of the estate)? Do guardians have to post a bond?

We tackle the concept of bonds, whether your will should waive any bond requirement, and how they work in conservatorship cases. It’s complicated, and bonds are sometimes difficult to secure. The good news: having to post a bond does not mean you have to put your own assets under the court’s control. But it may be difficult to secure a bond at all.

Making decisions for someone else at the end of their life can be excruciating. Now imagine that someone is making those decisions for you. Wouldn’t you like to make it easier for them?

And how do you make the decisions if you’re acting for someone else? Are there things you are permitted to consider? Maybe even required to consider?

ABLE Act accounts can be a terrific resource for individuals with a disability. The rules are easy to figure out; what we do here is to give more information about how they actually work in practice.

Though the ABLE Act may have originally been envisioned as creating an alternative to special needs trusts, that’s not how things have turned out. In fact, ABLE Act accounts provide extra flexibility to existing special needs trusts. We explain how the two concepts can work together.

And, of course, an ABLE Act account can stand on its own, even where there is no special needs trust. But contribution limits and a requirement of paying back the state Medicaid program at the beneficiary’s death make them less attractive than they might otherwise be as a standalone option.

Should you include a “no-contest” clause in your will or trust? We talk through some of the considerations (and limitations) surrounding those kinds of provisions. A key question: if you’ve disinherited someone, what do they have to lose if you include a no-contest provision? And the second key question: who would benefit from challenging your estate planning documents?

Don’t write on your original estate planning documents! What you’re trying to accomplish may seem obvious to you, but don’t risk confusing the rest of us.

Please do it right. Make notes about the changes you think you want to implement. Make an appointment (with us, or with the attorney who wrote your original will, trust and/or powers of attorney). Talk with the lawyer about what you want to do, how to do it — and how much it will cost.