Posts Tagged ‘Elder Law’

Online legal services — buyer beware!

Wednesday, July 30th, 2014

Anyone who does a little online research about making a will inevitably arrives at one or more websites that advertise “do-it-yourself” wills. These websites sell a form for just a fraction of the cost of hiring an attorney to make a will for you. When you think you know who you want to leave all of your stuff to when you die, it’s easy to think that the will you buy online is all you need.

However, a recent case from Florida reveals the limits of online legal forms and how they are no replacement for assistance from a well-trained attorney. In 2004 Ann Aldrich created her will using a product called “E-Z Legal Form.” In the will, she left her house, car, retirement account, bank account, and life insurance account to her sister. The will also stated that if Ann’s sister predeceased Ann, then Ann’s brother was to inherit all of the listed property. Ann’s sister did die before her, and left Ann real estate and cash. Unfortunately, the will didn’t say who was to inherit any of Ann’s property that she acquired after she made the will in 2004.

Furthermore, as often happens with  problems in wills and other estate planning documents, the problem wasn’t discovered until it was too late. When Ann died in 2009, there was a dispute about who would inherit the property Ann inherited from her deceased sister. Ann’s brother argued that Ann’s intent was for him to inherit everything – after all, he was the only one named in the will after the predeceased sister. But Ann’s nieces believed that because Ann listed the specific property for the brother to inherit, any property not specifically listed in the will should not be distributed through the will.

Although Ann left a note with her will that seemed to indicate her desire to leave “all of her worldly possessions” to her brother, the Florida courts determined that the note was not a valid codicil to Ann’s will. Therefore, because Ann’s will mentioned specific items of property and did not mentioned all of her property, then the property she acquired after 2004 passed by intestacy. Even though Ann did not provide any bequest to her nieces her will, under Florida intestacy law, they received a portion of Ann’s estate.

One of the justices of the Florida Supreme Court noted “that although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent.”

If Ann Aldrich’s will was contested in Virginia, it is likely that a Virginia court would reach the same result, since the laws regarding interpretation of wills in Florida are similar to the laws in Virginia.

What is troubling is that Ann could have saved all of this trouble by getting the advice of a competent attorney! Not only did Ann’s property go to people she didn’t intend to receive it, but it took nearly five years of litigation between family members that ultimately ended up in the state Supreme Court. As the court noted, Ann Aldrich’s estate serves as “a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

Kristina Beavers, Attorney at Law is a full-service law firm that helps clients create the estate plan they need to fulfill their wishes. A good estate planning attorney does more than just draft documents – she will meet with clients before and after creating their documents to make sure their documents will fulfill their intent, protect them, their beneficiaries, and their assets. A good estate planning attorney knows that no estate plan is “one size fits all” and knows just how to tailor the plan to every client’s needs.

If you have questions about your own estate plan, if you are concerned that a loved one’s do-it-yourself estate plan is not valid or inadequate for their needs, contact Kristina Beavers, Attorney at Law.

Does Mom (or Dad) seem to be slowing down?

Thursday, December 26th, 2013

I love holidays!  I love the lights and the colors and the smells and the gathering of family and friends.  I look forward to each year with anticipation and excitement.

But holidays are also a way of keeping track of the passing years.  It seems like just yesterday I was sneaking down the stairs to see what Santa had delivered.  However, it’s been a lot of years since I was good at sneaking anywhere!

Sometimes it is easier to tell when a parent is losing his or her edge when we only see them on the holiday.  When we talk on the phone, we don’t see the extra time it takes for them to get out of a chair.  And perhaps we have never noticed before that there are times when they go into a room and seem to forget why they went there.

Now might be a good time to talk with your parent about making sure they have all of their estate planning documents in place and current.

Most people are confident that they need a Will to distribute their ‘stuff’ after their death, but what about the other documents that will help them as they get older?

A General Durable Power of Attorney is one very valuable document that must be signed while the person has the cognitive ability to do so.  A Medical Directive (also known as a ‘living will’) is another.

These documents can go a long way to improve the quality of life of our parents (or ourselves).  They also make it easier for those family members that will need to help the elders in our lives.

And at this time of year, when we are all thinking about gifts, perhaps we should consider the gift of peace of mind….for ourselves and for our families.

We would love to meet with you and discuss the various parts of an estate plan and how we can help you achieve a little more peace of mind.  Please consider calling us at 757-234-4650 to schedule an estate planning consultation.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

When should I get a Power of Attorney?

Wednesday, June 19th, 2013

I get this question fairly often.  People will ask if they should think about getting a Power of Attorney because they are getting ready to retire, or they have retired, or they are getting close to age 60, or 50….or whatever.

I always give the same answer….The best time to get a Power of Attorney is NOW!

We all think we are going to live forever, but we don’t.  We all think we will be healthy for our entire lives, but often we don’t.  Unfortunately, if you wait too long, you can’t get a Power of Attorney anymore.

In order to get a Power of Attorney, you need to be competent.  That means if you wait until you have dementia, it is too late.  That means if you are in a car accident and in a coma, it’s too late.  That means that if for any reason you are not able to take care of your own affairs, you are probably too late.

A Durable Power of Attorney will allow the person you designate as your agent to take care of your affairs.  That person can write checks to make sure your house payment, utility payments, car payments, credit card payments etc. are all paid on time.  There are also a number of other powers that the document can provide based on how it is drafted.

Some people are afraid to give someone else that authority while they can still take care of themselves, but if you wait until you are not able to take care of yourself, you are usually not legally competent to sign the Power of Attorney.

What can you do?

I often tell people to go ahead and draft the Power of Attorney and then keep it in a safe place until it is needed.  Just because the Power of Attorney is drafted does not mean that you need to hand the paper over to your agent.   You can put the Power of Attorney document in a safe place and let the agent know where it is after it is needed.

Also, remember that the Agent under the Power of Attorney must only do things which are in your best interests.  And if you are still competent, you can watch over their actions.  If you can’t trust the agent to do the right thing while you are there to watch over them, how can you trust the agent to do the right thing when you  are not able to watch over them?

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Getting Ready to Retire?

Sunday, May 19th, 2013

If you are getting ready to retire, you know that there are lots of things to consider.

Do you want (or need) to move?  Will you be staying in the same town?  Does a different state offer a better tax environment?  Will your finances allow you to do the things you had planned?  How will you invest your assets to make the most of your retirement funds?

As a lawyer, I can’t really help with a lot of these questions.  But there is one thing that most people don’t think about when they are planning to retire and that is something I CAN help you with.

Everyone who is thinking about retirement should think about executing a General Durable Power of Attorney.

The excuse of ‘I still have lots of time’ just isn’t valid anymore.  If you are getting ready to retire, you need to start thinking about what is going to be happening in this last phase of your life.

Someone asked me recently what was the one biggest mistake people make regarding elder law.  The answer was easy, that mistake is not doing the Power of Attorney early enough!

A Power of Attorney allows you to designate someone else to make decisions for you… to make sure your bills are paid….and to make sure that your financial life is going the way you want. A Power of Attorney can allow someone else to make the needed decision about where you will live if  you are not able to make that decision yourself, and to sign the entry forms for assisted living or a nursing home on your behalf.

A Power of Attorney can also eliminate the need for a court to order a guardian or conservator.  And, if there is a situation where the court really needs to make that decision, the Power of Attorney tells the court the name of the person that you wanted to hold that position.

The agent under the Power of Attorney has to make decisions and take actions that are in your best interest, and while you are able to keep an eye on things, there should not be a problem with what is being done.  If you don’t like the way your agent is taking care of your affairs, and you are still competent, you have the right to rescind the Power of Attorney.

The big problem is that the Power of Attorney must be established while you are still competent and capable of making that decision.

I have adult children come into my office frequently saying that they need a Power of Attorney because their Mom or Dad has dementia and is no longer able to care for themselves.  It is very sad when I need to tell them that it is too late.

If Mom or Dad is already suffering from dementia, it is very possible that they are not sufficiently competent to execute the Power of Attorney themselves.  So, instead of a relatively inexpensive process to draft and execute the Power of Attorney, the family is faced with the more expensive and longer process of filing a lawsuit to establish the guardian and/or conservator for the elderly parent.

The parent who is already confused and frustrated by their condition now needs to face a hearing before a judge who will tell them that they are not competent to take care of themselves.  This is often a very sad, but necessary step in the lives of the elderly.

It could be fixed with proper planning that includes the establishment of a General Durable Power of Attorney.

So, while you are making all of your other retirement plans, be sure to add an appointment with an Elder Law Attorney to review your situation and find out if you have the proper estate planning documents in place.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Nursing Home Notes — Be An Active Participant

Tuesday, July 24th, 2012

It is always tough to make the decision that a loved one should move to a nursing home.  Most of the time, it is because we just can’t take care of them sufficiently in our own homes and this is the best choice for the safety of everyone.

When a loved one goes into a nursing home, there are a number of things you can do to help ensure they will get the best care possible.

This list assumes that you have already done the proper research to find the best facility that fits your needs.

1.  Visit often. How often to visit?  my suggestion is at least once per day.  Your loved one will appreciate the visits and the staff will understand that you care.

2.  Visit at different times.  If the staff knows you will always be there are 1:00 pm, it is likely that your loved one will be cared for shortly before 1:00 pm.  But if you show up at different times, they won’t know when to be ‘prepared’ for your visit.

3.  Get to know the staff.  These are the people who are taking care of your loved one.  Get to know their names and their role in your loved one’s care.  By visiting at different times, you can get to know the staff on all of the shifts.  Make a point of saying ‘hi’ when you are visiting.  It’s just human nature that people respond to those who show an interest in them.

4.  Know the names of all of your loved one’s doctors and what they do.  If a new doctor is being added to the mix, make a point of visiting while the doctor is there so you can meet him/her.

5.  Know what medications your loved one is taking, and why.  When a new medication is prescribed, you can ask about whether there will be a bad interaction with an existing medication.  Keeping up with the medications will also help you know more about your loved one’s conditions.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.