Elder Law Issues

Clients sometimes tell us: “I hate my trust.” What they usually mean, of course, is that they don’t understand it. Or perhaps they think they paid too much to set it up. Sometimes clients believe they no longer need a trust. So should they revoke the trust and start over?

Usually the answer is “no.” As we explain in this week’s Elder Law Issues podcast episode, once a trust is in place there’s almost never a good reason to revoke it. Even if we would not recommend that you create a trust in your current situation, that’s not the same as suggesting that you revoke your existing trust.

The bottom line: even if you hate your trust, it’s not necessarily time to eliminate it. When we meet to discuss your estate plan, we’ll go over the alternatives and make sure you are comfortable with your documents.

Everyone knows that it’s important to arrange your estate to avoid probate. Is everyone (always) right? In other words: is probate bad? In every circumstance?

Join us for our weekly “Elder Law Issues” podcast episode while we discuss the bad things about probate. Spoiler alert: we’re not going to tell you that it’s a good thing for your estate to be subjected to the court process. But probate may not be as bad as you think.

Probate avoidance, like so many legal issues, is about balancing costs and benefits. Having your estate go through the courts might not be so bad that you need to spend a lot of time, energy or money to avoid it — at least in Arizona. But you get to decide where the cost-benefit analysis fits into your own planning.

It’s election season. Maybe you already knew that.

Actually, by the time you hear this podcast episode you’ll likely know how things turned out. We didn’t know when we recorded, but we did know how we would adapt.

The bottom line: we know the election will have a big effect on us (individually and collectively) and on many of our clients and the people we serve. But we’re confident that there will be things we can do to address the changes. People will still need estate planning, health care advice, assistance in navigating the disability support “system” in our community.

Our plan: we’ll wake up Wednesday morning, come to work and keep trying to solve people’s problems. It’s what we do, and it’s what we enjoy doing. It’s also what we’ve done through prior election cycles.

Clients often wonder: should they tell their family about their assets and estate plan? A family wealth discussion can be a tense experience or a joyous occasion. Of course, they can also be everything in between.

To be clear, there’s no legal reason you have to explain your estate plan or disclose your wealth to family members. There’s also no legal reason not to do so. Some, but not all, clients decide to engage in a family discussion. Privacy considerations may be more important than disclosure for some clients.

In this podcast episode, we talk about some of the positives and negatives. Our bottom line: you will have to decide whether you want to share information, and how much. Will it be by a letter you write to family? How about an in-person meeting?

If a client decides to engage in a family wealth discussion, we can help you with goals, procedures and a proposed agenda. Of course, these are unusual times, calling for unusual approaches.

Cybersecurity is an important concern for businesses — and for individuals. In this week’s podcast episode, we talk about a recent brush with a hacking exploit in our office. Our office — and our client information — remained safe. We did not lose any data or operability. But still, it was a difficult, challenging — even embarrassing — episode. We explain, and have some suggestions for clients and colleagues.

We all know the cliches about elderly drivers. As we age many of us experience diminished function. It may be vision, hearing, response time or even cognitive ability. The aging driver can be a concern for family members and the community.

This week our podcast episode deals with the elderly driver and how to plan for (and respond to) diminishing capability. We often hear from our clients that they will know when to stop driving. But that’s not what we often hear from family members. In fact, the elderly family member often hasn’t recognized the need to stop driving.

Much of the problem with elderly drivers comes down to a lack of alternatives. In a society so dependent on auto travel, there may be few choices for getting to the doctor, shopping and other necessary travel. But anticipating the need for alternatives AND the possibility of diminished capacity can help your family deal with what may develop.

Sometimes the authority to make health care decisions for another person does not work out. It can especially founder on a common limitation: it might not include mental health powers. Without authority over mental health decisions, the agent, guardian or family member may be unable to arrange for sufficient care.

Arizona law distinguishes between making general health care decisions for another person and making the decision to authorize inpatient mental health care. In this week’s podcast episode, we discuss mental health powers — both in guardianship proceedings and in health care powers of attorney signed by the patient.

As you listen to this discussion, please note that Arizona law is somewhat idiosyncratic. That is especially true with regard to the procedures necessary in order to convey authority over mental health care. Talk to an attorney in your jurisdiction before assuming that our discussion would be the same in another state. Need to find someone who knows about these issues? You might start with the National Academy of Elder Law Attorneys.

We have written and talked before about pets and the elderly client in our office. But most of that discussion has focused on how to make plans for your pets after your inevitable demise. What about taking care of pets — and having them help take care of you — as you age?

As we explain in this podcast episode, there are all sorts of concerns about pets and the elderly. They range from physical safety (active and inactive pets can be fall risks, for example) to emotional security (the value of pets to institutionalized elders is well documented).

In this podcast episode, we talk about not just planning for pets, but also how to deal with pets in your environment as you age. We hope that the suggestions we make will be helpful to seniors — and to their family members.

It will come as no surprise that there is an election in November, 2020. Depending on the outcome, there might be significant changes in estate, gift and generation-skipping taxes as soon as next year. Are there things that you need to consider in your planning for 2021?

Yes, there are some. Mostly, though, the planning concerns are for very wealthy individuals and couples. People worth less than a few million dollars (perhaps $5 million for married couples) have little to worry about on the estate planning front next year.

But for the moderately wealthy and very wealthy, it’s worth giving some consideration to the planning environment as the election draws near. What is “moderately wealthy” or “very wealthy”? We offer some generalizations in this week’s podcast episode: Planning for 2021.

But wait — what does “moderately wealthy” or “very wealthy” mean? For our purposes here, we might say that the top 10% of Americans by wealth are moderately wealthy (at about $1.5 million net worth each) and the top 1% (at about $10 million each) are very wealthy.

Note: our discussion focuses primarily on planning for a possible change in the estate tax. You might reasonably also want to think about income tax changes after the election season. The New York Times published an interesting article with some good tips for you to consider. You may find the article (which is probably behind their paywall) difficult to get to, but we think it’s worth the effort.

Time for your next podcast class: Trust Funding 201.

You signed your living trust (and related documents). Good. You’re halfway done. The rest of the job: transferring assets to the trust.

In last week’s podcast we focused on some of the basic funding issues, in what we called Trust Funding 101. This week we offer Trust Funding 201: a look at some of the more advanced funding issues.

The hardest topic of all: what to do with your Individual Retirement Account (IRA), Roth IRA, 401(k) or other retirement plan. We can explain, but there are seldom clear, unequivocal answers. Join us for our discussion.