Elder Law Issues

The American Bar Association’s Model Rules of Professional Conduct govern most lawyers’ ethical duties. For elder law attorneys, particularly, one of the main principles goes by the name of one of those rules: Ethical Rule 1.14.

What does Rule 1.14 say? It addresses representation when a client has diminished capacity. The lawyer must treat the client as nearly normally as possible.

Elder law attorneys often see clients with dementia, mental health issues or other limiting factors. Our job is to try to look past those limitations and figure out the client’s wishes — and how to help them as much as possible.

The ABA extensively updated its rules just after the turn of the century. Arizona quickly followed suit. Ethical Rule 1.14 was rewritten in Arizona (along with the entire set of ethical rules) in 2003. That’s the most recent major update, though some tinkering has taken place.

Now comes news that the ABA is reviewing its Model Rules — including Ethical Rule 1.14. And in general, the changes are even more supportive of the client’s control and self-determination. Join us for a discussion of some of the changes — in text and tone.

Continuing Care Retirement Communities (usually referred to as CCRCs) are a relatively new idea. What if you could move into an independent living apartment with elegant appointments. In the same complex, there would be an assisted living wing and even a skilled nursing facility. That way you could simply move from one part of the complex to another as you aged and needed increasing assistance.

But that does mean two things:

Both of those concerns mean that the project will have to be well capitalized. And that creates the very tension that we most often see: most CCRCs have a very healthy buy-in requirement. In fact, the national average entrance fee for Continuing Care Retirement Communities might be as high as $400,000!

There are only a handful of Continuing Care Retirement Communities in Southern Arizona, and they range from modest to plush. We’ve had clients in all of them, and can report that those clients say they like the amenities and living arrangements. But it can be a daunting decision to buy into a CCRC, for certain.

We so often hear (see, read) common myths about estate planning. Recently we wrote about the myths we encounter regarding special needs planning. Last year we busted (we hope) some of the myths about wills and trusts.

For this podcast episode, we revisit common myths about wills. Talking about them gives us a chance to expand a little bit on the misunderstandings and misimpressions we encounter. It also helps us elucidate the issues for aural learners.

Great! You’ve completed your estate planning. We’ve helped you get things titled correctly and your beneficiaries established. What advice do we have for you now?

No futzing. Please.

We see it all the time. Clients focus on their estate planning and complete the documents. They get beneficiary designations completed. They get to take a deep breath and stop thinking about their estate planning for — well, at least for a few years, or until something changes in their lives.

But instead, they listen to their neighbor, hairdresser, bank teller. Even their accountant and sometimes their financial advisor might tell them they need to change their beneficiary designations. Or they scribble on their estate planning documents late one evening, considering making changes.

Hey! No futzing!

Do you want to make changes? Please come back and see us. Yes, we will charge you for follow-up work. But that’s because we know what we’re doing, and how to get to where you want to go. We can help you. And we can get the big picture and how your changes would affect shares, tax liabilities, efficiency and probate avoidance.

We’re actually better lawyers than all those advisors. We might not now how to file your tax returns, or what investments to change, or what hairstyle would look good on you. But we do know estate planning. And we want yours to be effective.

A recent Wall Street Journal article reminded us about beneficiary deed problems.

The article pointed out a number of concerns about the growing use of beneficiary deeds as part of estate planning. Actually, beneficiary deeds are too often used instead of thoughtful estate planning.

What are the beneficiary deed problems we see? In addition to the ones mentioned in the WSJ article (like loss of property insurance on death of the owner), we have seen some of these:

Those kinds of specialized problems usually call for a trust rather than a beneficiary deed.

All of which is not to say we don’t like or use beneficiary deeds. We just want to help you use them correctly when they are an appropriate choice.

Fleming & Curti, PLC, co-founder Tom Curti dropped by for a visit (and some carrot cake) last week. It was his birthday. Happy birthday, Tom!

While he was here, we dragged Tom into our broadcast booth to talk about his retirement (he’s been fully retired for a little more than five years now). Also about his connection to the practice, his clients and his colleagues.

We counsel clients on retirement issues every day. It’s an interesting change of perspective to consider one of our own retiring.

What happens on the death of a fiduciary? That is, who takes over as trustee, conservator, agent on a power of attorney or other fiduciary? And what do they have to do to assume their new role?

Death of a fiduciary is not often anticipated. It’s hard to think that you might outlive the person you name to take over on your own incapacity or death. But you might be surprised at how often we see the problem arise.

The problems are at least two-fold. How do we know who is next in line, and what steps do they have to take to secure their authority? We talk about the problems and how we see them arise in this podcast episode.

We hope this information is helpful to you if you are acting as fiduciary. It should also help you in planning your own trustee succession, or selecting agents for your own power(s) of attorney.

Last year the Arizona legislature adopted a new law based on a national model. The Uniform Partition of Heirs Property Act looks a little bit like a simplified probate proceeding, though it has a slightly different focus.

The problem: sometimes, and especially after the death of a property owner if no one initiates a probate proceeding, the interests of descendants can be complicated and difficult to determine. A grandchild, for example, might own a 1/32 interest in the property. And her cousin might own a 1/28 interest. There might be a dozen (or more) heirs with varying interests.

This fractionalization leads to a difficult problem in many cases. An heir wanting to cash out their small interest might sell it — perhaps to an outsider. That buyer might then initiate a partition action, forcing the sale of the entire property. Family members can lose their interests, and often for a small portion of the real value of that interest.

This partition of heirs property can divest families of inherited wealth. If the liquidation was more orderly, some heirs might be able to buy out other heirs. Or at least some heir (or a small group) might be tasked with securing the best price possible. Everyone in the family could benefit.

That’s what the Uniform Partition of Heirs Property Act does. It helps head off the opportunistic sale of property and allows for the preservation of generational wealth. It can even allow heirs to end up owning the family property, and at a price that is fair to all involved.

At Fleming & Curti, PLC, we are sometimes named as a future fiduciary. That is, you might have named us as successor trustee, to take over on your death (or disability). Or perhaps you’ve named us as agents on your power of attorney.

When we are scheduled to be a future fiduciary, what role do we take in the meantime? We do want to keep in contact. We want to know if we need to step in. Or perhaps the time for our involvement is growing near, and we want to keep tabs on how you’re doing. Sometimes people move on — and sometimes that means they literally have moved. We’d like to know whether our future involvement is still likely, so that we know how closely to watch out for you.

On the other hand, we don’t want to be intrusive or expensive. We don’t want to pester you about the future fiduciary role. And we don’t want to visit unless there’s a reason for us to do so.

Pope Francis died earlier this month. You almost certainly knew that. But what you might not have heard or read about is that even the Pope left a will.

The will Pope Francis signed two years ago, though, was unusual. It didn’t address anything about his property, or who would receive anything. It didn’t even indicate whether the Pope had any property to leave to anyone, or whether he had made other arrangements for property disposition.

The Pope’s will explicitly identifies itself as his last testamentary will. But it dealt entirely with his wishes for public viewing, burial and identification of his tomb. Pope Francis elegantly described his purpose and intent. But it wasn’t a “will” in the sense that we usually think of.

Is there a lesson for the rest of us in Pope Francis’s will? You can include your funeral and burial wishes in your will, too. You can also include such provisions in your powers of attorney, or in a separate document intended to give guidance and direction to your survivors. And we think you should shoot for the quiet elegance evinced by Pope Francis. No need to write it in Latin; plain English should be fine.