How to Protect Yourself & Your Estate

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Do you know how to protect yourself and your estate?  What are the signs that someone may be taking advantage of you or a loved one?  What can you do to prevent it?  Do you need a Will or a Trust?  What are Advance Directives?  Should you have a Financial Power of Attorney?  If so, should it be a joint account or Power of Attorney?  So many questions.  So little time.  So many risks if you don’t get the answers you need.  The good news is that a qualified Estate Planning attorney can help you sort through it all.  There are steps you can take to protect yourself and your estate.  I plan to address safety in legal planning with a group of seniors who want to stay in the know.  I thought you might find the information interesting as well.

 

First, let’s review signs of “foul play.”  There are common caregiver cons that you can note and steer clear of.  Red flags can be:

  • Strangers who befriend the elderly when children live out of state
  • Priceless heirlooms and expensive electronics go missing
  • A wallet or bank account that bleeds cash
  • Receipts that don’t add up (items aren’t familiar or are replaced with surprising frequency)
  • Unusual gifts or transfers occur (house, accounts, vehicles)

It’s important to be proactive to protect yourself and your estate!  If your loved one lives out of state, stay in close communication with them.  If you’re aware of their surroundings, friends, neighbors, comings and goings, you’ll be more apt to know when something is “off” and you can take steps to intervene if necessary.  It’s also wise to avoid giving cash to a caregiver.  Instead, use a preloaded debit gift card with a limited balance to limit liability in case of fraud.  Take advantage of online banking to monitor card transactions on a daily bases to stay abreast of the disbursement of funds.  Also, require and review receipts for all purchases.  If there are items on the receipts that your loved one would not need or use on a day in-day out basis, or seem to be extravagant or inconsistent with their normal lifestyle, discuss it with the caregiver.  Don’t let things slide.  It’s also wise to research common scams to avoid falling prey.  If at any point, there appears to be foul play, you can contact Adult Protective Services, the District Attorney’s Office, or FAST (Financial Abuse Specialist Team) in Santa Clara County for Assistance with criminal activity.  The District Attorney’s Office will prosecute, if necessary.

 

A Will or a Trust can also be used to protect yourself and your estate.  Briefly stated, a will is a written document with instructions for disposing of assets after death.  A will can only be enforced through the probate court.  A Trust is an entity that holds assets for the benefit of certain other persons or entities.   You may not know this about wills:

  • More than half of Americans do not have a will; most do not have an updated will
  • Without a will, the state will decide where your assets will go, who will care for your minor children, and how much you’ll be charged for administration costs
  • Without an updated will, recent assets may not be covered and your estate may be managed by people other than your first choice
  • A properly-executed will is a legal document which directs who will receive your assets at your death and appoints a legal representative to carry out your wishes
  • A will does not prevent your estate from going through probate
  • A comprehensive will includes a named executor, a guardian for minor children, a clear expression of your wishes, and a statement regarding administrative costs

Likewise, did you know this about Trusts?

—Many Americans do not have a Trust.  Many who do, don’t have the Trust properly funded.  Also, many do not recognize the range of Trusts they can employ.

—A Revocable Living Trust helps you manage and protect your assets, avoid probate, and reduce taxation on your estate.  It allows full control and management of your assets while you’re alive, and makes permanent your terms and wishes upon your death.

—For the average individual, a Revocable Living Trust (when properly executed and funded), will save thousands or millions of asset dollars and the considerable time and headaches of probate.

 

In addition to a Revocable Living Trust, many individuals can benefit from one or more of the following additional types of trusts to protect yourself and your estate.  An Irrevocable Trust removes assets from your estate you wish to have permanently shielded from taxation.  A Charitable Remainder Trust provides a way for you to donate considerable amounts of your estate to an organized charity of your choice while receiving the tax benefit; and a Special Needs Trust provides a way for you to care for a disabled spouse, child or relative with assets that are again shielded from taxation.  While straightforward in their purpose, the construction and the mechanics of each of these trusts can be complex.  The work of a good estate planning attorney is therefore critical and invaluable while seeking the maximal protection and optimization of your estate.  It’s important to get good guidance and direction to protect yourself and your estate.

 

Another very important part of your future is managing your health care.  An Advance Health Care Directive is the document that allows you to make decisions about your health care while you are well and capable of doing so.  Generally, people assign someone they know and trust, such as a spouse or adult child to act as the agent on behalf of the principal, to allow or refuse particular kinds of medical care.  The Advance Health Care Directive can provide several advantages, such as choosing anatomical gifts, giving burial instructions and avoiding conservatorships.

 

One of the most effective tools for incapacity is the Durable Power of Attorney because it remains in effect after you can no longer make decisions.  A Power of Attorney for Finances comes in several forms and can preclude the need for court action and may save substantial legal expense.  Durable Powers need to be revised periodically. Some revisions may include gifting authority, authority to fund a Trust or take assets out of a Trust, and the nomination of a conservator in the event a conservatorship is needed.

 

With a Joint Account, you can give ownership to an individual.  The holder can take money without your permission.  You can gift half the value of the account to the owner, which could have gift tax consequences.  A Joint Account passes outside of a Will or Trust to the Joint Account Holder rather than the beneficiary (unless it’s the same).  It does avoid probate, and it’s also vulnerable to elder abuse.  A Power of Attorney gives access to a Fiduciary or Agent.  The Agent is governed by a code of laws and must act in your best interest.  You cannot gift funds so there are no gift tax issues.  Funds go to who you want.  A Power of Attorney does not avoid probate.  If you become incapacitated, the Power of Attorney is the better way to go.

 

If you have a relative that can no longer manage their personal or financial affairs and they have not named someone to do this in a Durable Power of Attorney, you may need to petition the court to become their conservator. You will then become appointed to act on their behalf as the guardian or conservator of this person to make decisions, provide health and personal care, and manage the financial affairs for the incapacitated person.  An experienced attorney will help you file the necessary paperwork with the court to open a conservatorship if one is deemed necessary.

 

There are various types of conservatorships used to protect yourself and your estate.  A court will order a Conservatorship of the Person for someone whose health is at risk because they can’t provide for their own food, shelter, and other basic needs. The benefits of this conservatorship are:

  • It provides a way for you to assist a loved one whose health is at risk but who refuses help.
  • The conservator can obtain medical information and communicate with health care providers to make sure your loved one receives the best medical care. This is particularly helpful if your loved one is in a nursing home or assisted living home, or needs continuous monitoring of a serious health condition.

 

A Conservatorship of the Estate is ordered to protect the finances of someone who can’t competently handle their own debts and income, or who can’t resist unfair financial pressure from others. It is also used to permit Medi-Cal eligibility planning to help preserve the assets of a person who has entered a nursing home and is too ill to understand and consent to a Medi-Cal planning power of attorney.  A conservatorship of the estate can provide a way for you, as a family member or close friend, to help a loved one who is rapidly losing assets or piling up bills because they are unable to manage their money, or because they are being taken advantage of financially.  The benefits of a conservatorship of the estate must be weighed against the cost, which can become expensive due to court hearings, filing of regular reports, and other related tasks.

 

A Conservatorship of the Person and Estate may be ordered by a court to protect both the health and finances of an adult who cannot care for himself or herself.  There can be a separate conservator of the person and a financial conservator, or a single responsible person can be the conservator of both.  There are also “Limited Conservatorship for Developmentally Disabled Adult,” and “LPS Conservatorship for Serious Mental Disorders.”

 

To protect yourself and your estate, seek guidance and direction from a trusted advisor.  A good one will be an estate planner who is competent, committed, caring, and cost effective.  Parrish Law is here to help you create your “Legacy of Love” – safely and securely.  Call (408) 741-3500 today for your free consultation.