Richmond Virginia Estate Planning, Elder Law, And Asset Protection

Medical Advice by Teleconference

How Do I Tell Fact from Fiction with the Flu?

Flu season officially spans October to May. We’re just getting going. That makes now an opportune time to get the real facts about the virus that claims tens of thousands of lives — a majority of them older adults — every year. AARP’s recent article entitled “7 Flu Myths Debunked” sets the record straight on seven common flu myths to help you strengthen your defenses.

Myth No. 1: Cold weather is the cause of the flu. Wrong. Viruses cause flu, not cold weather. However, the influenza virus survives better in colder environments. In colder weather, individuals also tend to gather inside with less air circulating, causing a higher risk of flu spread. Lower temperatures may also negatively impact the immune response, which makes us more susceptible to flu.  It spreads via droplets as people around us talk, sneeze, or cough.

Myth No. 2: Flu is merely a bad cold. Not every respiratory ailment is the flu. Influenza and the common cold can have similar symptoms, but they are caused by different viruses and each has distinct symptoms. A cold may give you a runny or stuffy nose, but the flu typically doesn’t. A cold can make you feel crummy, but the flu can make you feel like you were hit by a Mack truck. Colds also rarely lead to dangerous complications. However, a bad case of flu can move to the lungs and cause serious infections.

Myth No. 3: Antibiotics will help treat flu. Not true. The flu is a viral infection, and antibiotics only treat bacterial infections. Sometimes complications from flu, like pneumonia, are treated with antibiotics, but flu itself is not. To treat influenza, in addition to over-the-counter drugs for cough and stuffy nose, there are approved antiviral drugs, such as Tamiflu (which should be taken early in the onset of flu symptoms to be effective).

Myth No. 4: You don’t need a flu vaccine if you don’t get sick. Influenza is very contagious. Even healthy people can get it. A flu shot is the very best intervention we have to prevent flu infections and, sometimes, the serious complications it can cause. Everyone should get a flu shot every year—and in the middle of the pandemic, it becomes even more important. The flu virus can also mutate from season to season. As a result, if a strain circulates that your immune system doesn’t have experience fighting, you can be more susceptible to getting sick. Getting a flu shot will help because the shot will build immunity to the specific strains circulating in a given season.

Myth No. 5: A flu shot can make you sick. There’s no active virus in the flu vaccine, so it can’t cause the flu. Your body may hurt because it’s building up immunity. According to the Centers for Disease Control and Prevention (CDC), the flu vaccine stopped about 4.4 million influenza illnesses in the especially severe 2018-2019 flu season. It stopped 2.3 million flu-related medical visits, 58,000 flu-related hospital stays and approximately 3,500 deaths.

Myth No. 6: You might get a “stomach flu.” The word “flu” is often used incorrectly for several unrelated viruses and other illnesses. Although the flu can cause gastrointestinal symptoms, a stomach bug that causes nausea, vomiting, or diarrhea isn’t the flu.

Myth No. 7: If you get a flu shot, you won’t get the flu. After you get the shot, it can take up to two weeks for immunity to be built up in the body, but it’s not 100% effective at preventing the flu. That said, the flu shot will make any symptoms you do get less severe and help your provider distinguish between common flu symtoms and the COVID-19 virus. It’s also especially important to help lessen the strain on the health care system during the COVID-19 pandemic.

Reference: AARP (Oct. 22, 2020) “7 Flu Myths Debunked”

 

estate planning

Scottish Actor Sean Connery May Have Had Dementia

The famous screen actor, Sean Connery, who was famous for portraying the original on-screen James Bond, passed away recently at his home in the Bahamas.

Yahoo News’s recent article entitled “Sean Connery widow reveals he had suffered from dementia” reported that Connery died peacefully in his sleep surrounded by family members, according to his widow Micheline Roquebrune.

“I was with him all the time and he just slipped away,” the 91-year-old told the London Daily Mail.

“He had dementia and it took its toll on him. He got his final wish to slip away without any fuss. It was no life for him. He was not able to express himself lately.”

Connery will be remembered at a private funeral ceremony, with a memorial event to be held later, according to a publicist. He was knighted in 2000 and won many awards during his decades-spanning career, including an Oscar, three Golden Globes and two Bafta awards.

However, it was his smooth, Scottish-accented portrayal of the suave licensed-to-kill spy 007 that earned him lasting worldwide fame and adoration. He was the first actor to say the unforgettable “Bond, James Bond.”

He made six official films as novelist Ian Fleming’s spy, giving what many still consider to be the definitive portrayal.

Former 007 actor Pierce Brosnan joined the flood of weekend tributes to the Scottish actor, who he said, “led the way for us all who followed in your iconic footsteps.”

“You were my greatest James Bond as a boy, and as a man who became James Bond himself, you cast a long shadow of cinematic splendor that will live on forever,” Brosnan added.

Connery was born in Edinburgh in 1930. He married French artist Roquebrune in 1974 after they met in Morocco in 1970.

They lived outside his native Britain for decades, previously owning a home in the Spanish resort of Marbella and then in the Bahamas.

“He was gorgeous, and we had a wonderful life together,” the Tunisian-born widow said. “He was a model of a man. It is going to be very hard without him. I know that. But it could not last forever and he went peacefully.”

Dementia can happen to anyone. For information on how families deal its onset and paying for care, visit www.nancelawfirm.net and our past blogs. Or call for a time to call and review matters.

Reference: Yahoo News (Nov. 1, 2020) “Sean Connery widow reveals he had suffered from dementia”

 

elder law

Good Planning for Life Is Also Good Planning for a Pandemic

The fear of the unknown and a sense of loss of control is sending many people to estate planning attorney’s offices to have wills, advance directives and other documents prepared, reports the article “Legal lessons from a pandemic: What you can plan for” from The Press-Enterprise.

However, people are not just planning because they are worried about becoming incapacitated or dying because of COVID. High net-worth people are also planning because they are concerned about the changes the election may bring, changes to what are now historically advantageous estate tax laws and planning to take advantage of tax laws, as they stand pre-December 31, 2020.

Regardless of your income or assets, it is always good to take control of your future and protect yourself and your family, by having an up-to-date estate plan in place. Anyone who is over age 18 needs the following:

  • Health Care Directive
  • Power of Attorney
  • HIPPA Release Form
  • Last Will and Testament

Any assets without beneficiary designations should be considered for a trust, depending upon your overall estate. Trusts can be used to take assets out of a taxable estate, establish control over how the assets are distributed and to avoid probate. You don’t have to be wealthy to benefit from the use of trusts.

Preparing estate planning documents in a last-minute rush, is always a terrible idea.

If you have more free time during the pandemic, consider using some of your free time to have your estate plan implemented or updated. This should be a top priority. The state of the world right now has all of us thinking more about our mortality, our values and the legacy we want to leave behind. Most estate planning attorneys encourage clients to think about the next three to five years. What would be important to you, if something were to happen in that time frame?

Estate planning is about more than distributing assets upon death. It addresses incapacity—what would happen if you became too ill or injured to care for yourself? Who would make medical decisions for you, such as what kind of medical care would you want, who will your doctors be and where will you live in the short-term and long-term? Incapacity planning is a big part of an estate plan.

When naming people to care for you in the event of incapacity, provide your estate planning attorney with three names, in case your first or second choices are not able to act on your behalf. Most people name their spouse, but what if you were both in an accident and could not help each other?

In recent months, Advance Health Care Directives have received a lot of attention, but they are not just about ventilator use and intubation. An Advance Health Care Directive is used to state your preferences concerning life-sustaining treatment, pain relief and organ donation. The agent named in your health care directive is also the person who will carry out post-death wishes, so provide as many details as you can about your wishes for cremation, burial, religious services, etc.

Trusts are a way to preserve a family legacy. A living trust gives you the ability to decide who you want involved, in case of your death or incapacity. You decide on your beneficiaries, and if you want your assets going directly to those beneficiaries or if they should be held in trust until certain goals are met, like finishing college or reaching a certain age or life milestone.

Your estate planning attorney will help you clarify family legacy goals, whether they include a beneficiary with special needs, a supplement for children who go into public service careers, etc.

Reference: The Press-Enterprise (Oct. 18, 2020) “Legal lessons from a pandemic: What you can plan for”

Suggested Key Terms: Pandemic, Estate Planning, Advance Medical Directive, Living Trust, Legacy, Incapacity, Beneficiaries, Tax Laws, Health Care Directive, Power of Attorney, HIPPA Release Form, Last Will and Testament

Doing good while doing well

How to Lower Your Medicare Premiums

Here’s a generous incentive for older Americans who want to help their favorite charities: by giving generously from the right asset source, they could manage their Medicare premiums for 2022. The details come from the article “Feeling altruistic? This tax strategy can keep Medicare premiums in check” from CNBC.  This is a way to help yourself while helping others. It is worth a read.

People who are age 70½ and over are allowed to make qualified charitable distributions from their IRAs. The IRA owner directs the custodian holding the account to transfer up to $100,000 directly to a charity. The transaction must be a direct transfer, and donor-advised funds or private foundations are not eligible for this strategy.

This is a staple of year-end tax planning for many, hitting two targets at once: older savers meet their required minimum distributions without a tax hit and their favorite causes get support. This year, there is no RMD, as a result of the CARES Act, the coronavirus relief measure that went into effect in the spring. However, a qualified charitable distribution still makes sense for people who were planning on making large donations.

Keeping a lid on Medicare premiums for 2022 Medicare Part B (Medical Insurance) and Part D (Prescription Coverage) itself is worth consideration.

Giving via a Qualified Charitable Distribution will not inflate the Modified Adjusted Gross Income (MAGI) for that year, and you also won’t pay taxes on the distribution. Remember, Medicare premiums are based on the MAGI from two (2) previous years.

It’s great to support nonprofit agencies that have meaning to you. However, doing it without taking advantage of tax planning is a lost opportunity.

In 2020, single taxpayers with a 2018 MAGI up to $87,000 (or $174,000 for married and filing jointly) pay $144.60 a month for Medicare Part B. Premiums increase depending on your MAGI, all the way up to $491.60 per month for individual taxpayers with a 2018 MAGI of $500,000 or more.

This is something to work on with your estate planning attorney, as going just one dollar over your income bracket could raise your premiums by thousands. Your estate planning attorney will be able to guide you through the various brackets, which must consider any other sources of taxable income.

Charitable giving is a great tool to shave tax liability, while doing good. Donations of appreciated stock are another strategy. Just remember that for this type of giving, you’ll need to be itemizing deductions on the return, if you want to write them off. With the standard deduction so high, it may be hard to meet that hurdle.

Reference: CNBC (Oct. 23, 2020) “Feeling altruistic? This tax strategy can keep Medicare premiums in check”

 

Generations at home

What Should I Remember when My Parents Move in with Me?

Among adults living in someone else’s household, 14% were the parent of the head of household in 2017. That number is an increase from 7% in 1995, according to the Pew Research Center. What should you know if you are considering care for aging parents in your home?

“While the rise in shared living during and immediately after the recession was attributed in large part to a growing number of millennials moving back in with their parents, the longer-term increase has been partially driven by a different phenomenon: parents moving in with their adult children,” according to the Pew report.

US News and World Report’s recent article entitled “When Your Elderly Parents Move In With You” says that if your children also return home after college, you might wind up supporting your children and your parents at the same time.

The critical thing to do is to make a plan. Discuss your goals, the finances and the possibilities, which includes in-home care or nursing home care. Let’s look at how to care for aging parents in your home.

Get Financially Prepared. When Mom and/or Dad moves in, it will add new costs to your budget. In addition to health care for aging parents, the most disruptive implications are often the financial cost of supporting another dependent and having the space to accommodate them in the household. Talk about whether your parent will be contributing Social Security income or other retirement assets toward household expenses.

Think About Hiring Extra Help. Caring for a parent with significant health problems who needs help with basic living tasks can quickly become overwhelming for an adult child with children and work responsibilities. An aging parent might need around-the-clock care. A home health aide could be brought in during work hours or there’s also adult day health care services. However, these costs can add up. It’s not uncommon for the child who is caring for a parent to scale back his or her own career to accomplish both tasks.

Plan Before They Move In. Begin the discussion about the transition as early as you can. It can be doubly stressful to be executing a move in the middle of a crisis or urgent situation, like a health emergency or the death of a parent.

Remember that your parent in the house means you may need to schedule their activities and medical appointments. This can take time away from normal family routines. Or it can teach your children about care for others and passing the torch. It can be rewarding for the whole family.

Reference: US News and World Report (Aug. 30, 2020) “When Your Elderly Parents Move In With You”

 

Estate Planning

Do I Need to Name a Guardian for My Children in the Will?

Many young couples with children and bills to pay may look at you askance, when asked about estate planning and say, “what estate?”  What is the hardest part of creating an estate plan for young families?

However, a critical part of having a will—one frequently overlooked—is naming a guardian. If you don’t name a guardian, it could result in issues for your children after your death. Your child might even be placed in a foster home.

For a young family, designating a guardian is another good reason to draft a will. If you and your spouse die together with no guardian specified in a will, the guardian will be chosen by the court.

In a worst-case scenario, if you have no close family or no one in your family who can take your child, the court will send them to foster care, until a permanent guardian can be named.

The judge will collect as much information as possible about your children and family circumstances to make a good decision.

However, the judge won’t have any intimate knowledge of who you know or which of your relatives would be good guardians. This could result in a choice of one of the last people you might pick to take care of your child.

Try to find common ground, by agreeing to a set of criteria you want in a guardian. This could include the following:

  • The potential guardian’s willingness to be a guardian
  • The potential guardian’s financial situation
  • Where the child might live with that person
  • The potential guardian’s values, religion, or political beliefs
  • The potential guardian’s parenting skills; and
  • The potential guardian’s age and health.

Next, make a decision, get the chosen guardian’s consent, write it all down, and then set out to create a will.

Ask an experienced estate planning attorney to help you do it correctly.

Reference: Lifehacker (Oct. 27, 2020) “Why You Should Name a Guardian for Your Kids Right Away”

 

estate problems

Dividing Pablo Picasso’s Estate, a Disaster

Picasso left behind 1,885 paintings, 1,228 sculptures, 7,089 drawings, as well as tens of thousands of prints, thousands of ceramic works and 150 sketchbooks when he passed away in 1973. He owned five homes and a large portfolio of stocks and bonds. “The Master” fathered four children with three women. He was also thought to have had $4.5 million in cash and $1.3 million in gold in his possession when he died. Once again, Picasso did not leave a will. Distributing his assets took six years of contentious negotiations between his children and other heirs, such as his wives, mistresses, legitimate children and his illegitimate ones.

Celebrity Net Worth’s recent article entitled “When Pablo Picasso Died He Left Behind Billions Of Dollars Worth Of Art … Yet He Left No Will” explains that Picasso was creating art up until his death. Unlike most artists who die broke, he had been famous in his lifetime. However, when he died without a will, people came out of the woodwork to claim a piece of his valuable estate. Only one of Picasso’s four children was born to a woman who was his wife. One of his mistresses had been living with him for decades. She had a direct and well-documented influence on his work. However, Picasso had no children with her. Dividing his estate was a disaster.

A court-appointed auditor who evaluated Picasso’s assets after his death said that he was worth between $100-$250 million (about $530 million to $1.3 billion today, after adjusting for inflation). In addition to his art, his heirs were fighting over the rights to license his image rights. The six-year court battle cost $30 million in legal fees to settle. But it didn’t settle for long, as the heirs began fighting over the rights to Picasso’s name and image. In 1989, his son Claude sold the name and the image of Picasso’s signature to French carmaker Peugeot-Citroen for $20 million. They wanted to release a sedan called the “Citroen Xsara Picasso.” However, one of Picasso’s grandchildren tried to halt the sale because she disagreed with the commission paid to the agent who brokered the deal—but oddly enough, the consulting company was owned by her cousin, another Picasso.

Claude created the Picasso Administration in Paris in the mid-90s. This entity manages the heirs’ jointly owned property, controls the rights to exhibitions and reproductions of the master’s works, and authorizes merchandising licenses for his work, name and image. The administration also investigates forgeries, illegal use of the Picasso name and stolen works of art. In the 47 years since his death, Picasso has been the most reproduced, most exhibited, most stolen and most faked artist of all time.

Pablo Picasso’s heirs are all very well off as a result of his art. His youngest daughter, Paloma Picasso, is the richest, with $600 million. She’s had a successful career as a jewelry designer.  She also enjoys her share of her father’s estate.

Reference: Celebrity Net Worth (Sep, 13, 2020) “When Pablo Picasso Died He Left Behind Billions Of Dollars Worth Of Art … Yet He Left No Will”

 

Welcoming a new baby to the family

Mistakes New Parents Make with Money

The prospect of becoming a parent is exciting, but it’s also stressful, due to the sleepless nights and the never-ending expenses associated with caring for a child. As my daughter says about having young children, “The days are long and the years are short.” True. But here’s another factor: The latest research from the USDA found that the average middle-income family spends about $12,300 to $13,900 on child-related expenses annually.

The Street’s recent article entitled “Biggest Money Mistakes New Parents Make” says that with the current economic issues from the coronavirus pandemic, 59% of U.S. households are seeing a reduction in income since March. That’s why it’s more important for families to carefully create a budget, anticipate all potential expenses and watch their spending. To do this, young parents should avoid five common money mistakes made by new parents.

  1. Getting Big. Upgrading your home and car for a new baby seems practical when becoming a parent. However, this adds an unnecessary financial burden during an already tough time. Little babies don’t require much space. Because there are many new expenses in caring for an infant, such as diapers and unanticipated medical bills, try to settle into your new life first and adjust to the new budget prior to making major upgrades.
  2. Lowballing Childcare Costs. Parents can pay about $565 per week for a nanny and $215 for a daycare center says Care.com. However, in addition to the working day, parents can miss planning for the additional care they may need on nights and weekends. This can add up, with the average hourly rate for a babysitter at $15. You can save by setting up a babysitting exchange with other families in your neighborhood or with relatives who have children around the same age.
  3. No life insurance or estate planning. It’s not a fun topic, but life insurance and estate plans provide financial safety nets for your family. Talk to an experienced estate planning attorney, and when looking into term life insurance, try to buy five to 10 times your annual salary in coverage.
  4. Too much spending on gadgets. New parents can go crazy shopping for new clothing and infant gear, thinking that these things will make caring for baby easier. However, many of these items are only used for a short while, so it’s better to borrow or buy used. For essentials, you can’t avoid buying items like a car seat or crib, but search for deals online first. (Young parents are excellent at this!)
  5. Delaying Saving for College. College is way off but the earlier you start saving, the easier it will be to meet your savings goal. The longer you delay beginning to save, the more money you’ll need to put away each month. Saving a little bit is better than nothing, even if it’s just $20 a month. You can also start a 529 College Savings Plan to help your savings grow like a retirement fund. Easier said than done, but so important.

Reference: The Street (Sep. 9, 2020) “Biggest Money Mistakes New Parents Make”

 

exemptions

Making the Most of Exemptions and Flexibility in Gifting

The time period available to take advantage of the high transfer tax exemption has driven many to make or give more serious thought to making large gifts, while the estate tax exemptions are certain. However, not everyone is ready or able to give away large amounts of wealth, in case they may be needed in the future. For those who are concerned about needing these assets vs. making gifts, there are some strategies that can build flexibility into gift planning, reports the article “Five Ways to Build Flexibility Into Your Gift Planning” from Financial Advisor Magazine.

Depending on the outcome of two runoff elections for the U.S. Senate in Georgia in early 2021, there may or may not be large changes in the gift and estate tax laws in store, but now, before any changes, may be a good time for people with larger estates to make significant gifts.

Spousal Lifetime Access Trust, or SLAT, is one gifting option for married couplies. This is a type of irrevocable trust that includes the grantor’s spouse as one of the beneficiaries. The couple can enjoy the gift tax exemption, because the trust is funded while one spouse is living, but they can also have access to the trust’s assets because the grantor’s spouse may receive both income and principal distributions. A few things to keep in mind when discussing this with your estate planning attorney:

  • If both spouses want to create a SLAT, be careful not to make the trusts identical to one another. If they are created at the same time, funded with the same amount of assets and contain the same terms, it is possible they will not withstand scrutiny.
  • The term “spouse” has some flexibility. The spouse could be the current spouse, the current spouse and a future spouse, or a future spouse for someone who is not yet married.

Special Power of Appointment is a power granted to a person to direct trust assets to a specified person or class of people (other than the power holder, the estate of the power holder or the creditors of either one). The power holder may direct distributions to one or more people, change the beneficiaries of the trust and/or change the terms of the trust, as long as the changes are consistent with the power of appointment. Note the following:

  • The permissible appointees of a power of appointment can be broad or narrow, and the grantor may even be a permissible appointee for outright distributions.
  • If the grantor is a permissible appointee, special care must be taken when naming the power holder(s) to avoid any challenge that the trust was always intended for the grantor. The trust may need to have multiple power holders, or a third party, to agree to any distributions.

A Trust Protector is a person who has powers over the trust but is not a trustee. This is an increasingly popular option, as the trust protector has the ability to address issues and solve problems that were not anticipated when the trust was created. The Trust Protector may often remove or replace trustees, make changes to beneficiaries, divide the trust, change administrative provisions, or change trust situs.

A Disclaimer is used when a gift recipient renounces part or all of a gift transferred to them. When a gift is made to a trust, the trust instrument is used to specify how the assets are to pass, in the event of a disclaimer. If the grantor makes a gift to the trust but is then concerned that the gift is unnecessary or the grantor might need the assets back, the trust can provide that the assets revert to the grantor in the event of the disclaimer.

Planning with Promissory Notes is another way to include flexibility in the timing, implementation and amount of gift planning. An asset is sold by the grantor to a grantor trust in exchange for a promissory note. There are no income tax consequences, as the sale is to a grantor trust. If the sale is for full market value, there is no gift. The grantor gets to decide when, and if, to make a gift with the promissory note.

Speak with your estate planning attorney to determine which, if any, of these strategies is the right fit for you and your family, and to learn more about flexible solutions to making large gifts. While it is impossible to know exactly when and how the federal exemptions will change, there are many different tools that can be used while waiting for any changes.

Reference: Financial Advisor Magazine (Sep. 10, 2020) “Five Ways to Build Flexibility Into Your Gift Planning”

 

long-term care planning

When Do We Need an Elder Law Attorney?

A recent Kiplinger’s article “When Elder Care Requires Legal Advice” explains that a lot of panicked calls are made to elder law attorneys when a person becomes disabled. These are attorneys who specialize in planning for the legal complications that can arise in old age. However, seldom do people think to consult one preemptively to avoid making that panicked phone call when incapacity strikes.

Many, but not all elder law attorneys are members of the National Academy of Elder Law Attorneys (NAELA).

Elder care attorneys work in the best interests of the older person, although how that is accomplished may differ. If the senior is competent and contacts the attorney, it can be fairly straightforward. However, if an adult family member or friend is an agent or has power of attorney for an elderly person—and asks for help, the attorney may represent the agent. In our office, we normally consider the disabled person the client, even if we are working through an agent or other client representative. In fact, for new estate planning clients, we get their permission in advance to advise the power of attorney agent or other personal representative in the event they become incapacitated in the future. In any event, a person who has power of attorney for another has a fiduciary responsibility to do what is best for the elderly person granting them that authority.

If a power of attorney isn’t in place and the elderly parent is incapable of giving it, the family is required to go to court to have someone appointed as a guardian, which can be a time-consuming option. If a parent is cognitively capable and doesn’t want help, there’s nothing an attorney can do about it.

Although state laws vary, elder law primarily concerns these topics:

  • The client’s wishes and health
  • Family dynamics; and
  • The client’s financial assets and income.

An elder care attorney will also make sure that all important documents are in place and up-to-date, according to state laws. This includes a will, a trust, a power of attorney and an advance directive that includes a health care proxy.

Elder law attorneys also help moderate tough decisions, like when family members can’t agree about how a loved one wanted to be buried.

In addition, elder care lawyers understand the complex laws for Medicaid and Veterans benefits. An elder care lawyer can speak to many other issues, ranging from long-term care insurance to capital gains taxes.

A key when meeting with an elder law attorney is that you feel comfortable, that you’re not rushed and that your questions are answered.

Reference: Kiplinger (Sep. 15, 2020) “When Elder Care Requires Legal Advice”

 

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