Elder Law Issues

When someone acts as fiduciary — as trustee, personal representative, conservator or agent under a durable power of attorney, they might want to charge for their work. How do they set their fiduciary fees, and what are the rules?

In this podcast episode, we discuss fiduciary fees, and what you might reasonably expect. Necessarily we discuss broader issues of monitoring the cost of services.

When we meet with a new client, we ask a lot of nosy questions. You can guess why we are so invasive, but we do want to assure you that it is more than just prurience or idle curiosity. We really do need to know about family dynamics, capabilities of your family members (or limitations), and your own background, interests and desires.

After we schedule your initial appointment, we will send you a questionnaire. We really do need you to fill it out. You should be as thorough, and as candid, as possible.

Can’t you just wait until you are actually sitting with us before answering our nosy questions? We’d rather you gave us more information in advance. That helps us direct the discussion and think of follow-up items we need to explore. It also gives you a chance to think about issues you hadn’t initially considered.

Also consider this: if you will fill out the questionnaire, we won’t have to write down your children’s names (we’ll misspell someone if we do) or the account numbers we need to gather. You won’t get impatient with the transcribing and skip over details that we actually need. The entire process will improve. A “scrivener’s error” won’t usually invalidate the document, but we all want to avoid confusing mistakes.

Join us for this week’s podcast as we discuss the significance of some of the nosy questions we tend to ask.

Are living trusts oversold? That is, do you need a trust?

This basic estate planning discussion is the one we probably get asked about most often by our clients. There is much mystique about the need for and utility of revocable living trusts. Are there people who should not create one? Are there others who absolutely must have a trust as the central item in their estate plan?

Join us for this week’s podcast, where we will try to demystify the living trust issue, and help you answer the question for yourself. We will suggest that the answer is based on a cost/benefit analysis.

When do you need to do your special needs planning?

Do you have a child who receives Supplemental Security Insurance (SSI) or Medicaid benefits? If so, you need to get working on your special needs planning. Is there someone in your family (a grandchild, a niece or nephew) receiving such benefits? You need to think about the same issues.

But those aren’t the only times you need to plan for “special needs.” The special needs trust we might talk with you about will also work for other circumstances. Even for beneficiaries who aren’t on needs-based public benefits.

We don’t need to label your special needs planning as a “Special Needs Trust.” That might help reduce your — and your child’s — anxiety about labels. The key is to make sure your plan maximizes your beneficiary’s autonomy, personal potential and access to necessary services.

Join us for our podcast discussion of special needs planning.

Want to simplify the administration of your estate? Give everything away! In this week’s podcast, we discuss gifts and gift agreements you might consider.

Is it really a good idea to give everything away before you die? Probably not, for most people. But giving away some things might benefit the recipient and allow you to enjoy making the gift during your lifetime.

Sometimes a gift isn’t really an outright gift — or it is intended to have some effect on the rest of your estate plan. You might want to consider a gift agreement as part of your comprehensive estate plan — setting out the expectations you and the recipient have about a gift.

For example: is a loan you made to a child intended as a loan, an advance on their inheritance, or an outright gift? Did you expect to receive income during your life but forgive the remaining balance at your death? You need to spell out the details and expectations, rather than rely on hearsay and vague memories.

When you sign a trust, you probably have a vision of how the trustee will operate. Will they continue to utilize your trusted advisors? Liquidate all your carefully-selected assets? Understand your intentions regarding distributions to your beneficiaries? You might place restrictions on your trustee to make sure they behave in accordance with your vision.

Much of the value of a trust is to carry forward your wishes. The trust can be a terrific tool for doing just that. But wait a minute — you need to balance the need for flexibility with the desire to control the trust’s administration. The problem is commonplace: can you rely on the general law governing trust administration, or do you want to place specific restrictions on your trustee’s discretion?

A trustee’s job is complicated, and there are plenty of opportunities for missteps. Limits on the trustee’s discretion can make the job more difficult. Join our podcast discussion about whether it makes sense to put restrictions on your trustee.

In this online, digital age, do you still need to keep original documents in a secure place? Yes — though (at least in Arizona) loss of some originals — especially your trust and powers of attorney — may not be a huge problem.

Join us for a discussion about which original estate planning documents you need to keep on hand. We also talk about what it means to keep them safe — should you have a safe deposit box, a fireproof safe, or some other arrangement? We’ll give you some ideas about how to keep you documents safe and available. We’ll also give you some information about bad choices you might make.

Medicare is a great health-care program for its participants. Most Medicare beneficiaries prefer its coverage to what they might get under Medicaid. But what about people who can’t afford the premiums for Medicare Part B (and Part D), the co-payments and the deductibles. For them, QMB and SLMB and QI might offer help. But what are those programs, and how do they actually work?

We’ve written about the Medicaid-based programs to subsidize Medicare costs in the past. The eligibility numbers change each year, but the program descriptions are still accurate. In this podcast we discuss some of the issues, and the interrelationship between Medicare, AHCCCS (Arizona’s Medicaid program), and QMB (and SLMB and QI).

From the client’s perspective, the initial estate planning interview might seem unsettling, confusing — even a little bit frightening. How often, after all, do you settle in for a long discussion about mortality, disability and family dynamics?

Our job (well, one of our jobs) is to make the interview helpful, productive and even relaxing. When clients say (as they often do) “that wasn’t nearly as bad as I expected” we feel gratified. We really do want to make the experience positive and to ease your mind. We often say that what we sell is mostly peace of mind — that starts from the very first contact.

We’ve talked before about what we expect to get out of the interview. But that’s about us. What about you?

What can you do to prepare yourself for the initial interview, and what can you expect? What is — and should be — the client’s perspective on that first meeting? We probably won’t be as detailed as some online resources suggest. We aren’t sure we can come up with 100 questions, for example — though we will check in on all those topics if they seem important to your estate plan. Join us for this podcast episode, where we help prepare you for the (not very scary) experience.

The initial client interview with your new lawyer can be a daunting experience. We are not actually very intimidating, but clients often feel a little overwhelmed by that first interview. We’d like to put you at ease.

Want to know what we’re looking for in the interview? We want to get to know you a little bit, find out what concerns motivate you, what you hope to accomplish. We’d like to understand your family dynamics, and what is important to you.

We realize we’re not going to get to know everything about you in that first contact. But if you’ll give us some of the data (family names, ages and location; kinds of assets you own; identification of the people you think could manage your estate), that will help us get started. That’s why we’ve sent you a questionnaire; it gets us some of the basic information so we don’t have to spend out time together going over spelling and arithmetic. Bring (or send) that to us, and then let’s talk.

In this week’s podcast, we discuss what we hope to learn in your initial client interview.