Law News and Tips
A Bad Idea
Fred Vilbig © 2020
I got a call from a client the other day.His mother had died, and he had a lot of questions.
His mother and father had divorced years ago.She had remarried, and she and her new husband had had a loving relationship.Not knowing who might die first and wanting to be fair, they had verbally agreed that everything would pass to the survivor on the death of the first of them to die, and on the death of the second, everything would be split 50/50, with half going to her son and half going to his children.They didn’t put that agreement in writing, and everything was owned jointly.They did both execute wills that included those provisions, but that was it.And therein lies the problem.
When a married couple own property jointly, on the death of the first of them to die, everything passes to the surviving spouse.There is no need to probate anything since there is nothing to probate.If you’re talking about real estate, you do need to file an affidavit of death to clean up the title.With regard to financial assets, you probably need a death certificate to show to the financial institution.But no probate.
And when the assets pass to the surviving spouse, the surviving spouse is free to do whatever they want with them.My client said that his step-father was talking about putting the accounts in joint names with his son.The idea was that he wanted his son to be able to pay his bills.But joint ownership between non-spouses can create problems.In the case of bank accounts (they have special rules that apply to them), his son would be able to use that money to pay his bills.But his son would also be free to drain that account.Or if he got sued and lost, the other party could attach those funds to satisfy his or her judgment.In the case of a brokerage account, both joint owners would need to jointly withdraw funds, so he would be no better off than if the account was still in his name.And then on the death of the step-father, all of the assets would pass outright to the surviving son. There would be no probate, and the will that split things 50/50 would prove to be a useless piece of paper.
The best thing that my client’s mom could have done would have been to enter into a pre- or post-nuptial agreement.She and her husband could have agree to split the assets in writing just like they had verbally agreed to do.
But now, my client was in a sticky situation.Although he had a good relationship with his step-father, his step-father was free to do whatever he wanted to do with the assets.I told him that his step-father could put the assets into a trust, and that would avoid probate, allow for his son to take care of him if he became ill, and incorporate the testamentary disposition play he had agreed to with his wife.If he didn’t want to do a trust, he could keep his will and execute a power-of-attorney allowing his son to pay his bills, but not put everything in joint names.There are ways to salvage the situation to achieve what the spouses had agreed to, but it will take some cooperation.
Fred Vilbig © 2019
Growing old is tough. Your body changes a lot, and you can’t do some of the things you used to do. Over time, you lose more and more of those abilities.You eventually get to the point where it is unsafe to drive. Giving up those keys – that source of independence – is really tough for most people, but after one or two accidents, we can be persuaded. Keeping house becomes a real chore. Eventually even cooking becomes too much. I’ve had a number of clients who we discovered were living on cereal and ice cream. Not the best of diets.
And then there are all of the health issues. America is kind of pill crazy. If something ails you, we have a pill for that. And that pill has side effects, so you need a pill for that. It’s like a never ending cycle. It seems that the older we get, the more we become like a chemistry experiment – a little of this and a little of that and we hope that the test tube doesn’t explode or catch on fire. And something as simple as knowing what pills to take when becomes a real challenge.
Most people try to stay in their homes for as long as they can. It’s familiar. There are no strangers around. We at least have a sense of independence.Sometimes people try to stay at home by bringing in a caregiver. That can be expensive, but so are nursing facilities. It’s a possibility, so people may want to explore it.
But in the end, the time comes when it’s time. It’s time to move into assisted living, if not even skilled nursing care. And that poses a whole new set of questions.
In my job, I’ve been to a lot of retirement homes and nursing facilities. To be honest with you, some are absolutely horrible. The smell, the lack of attention to the residents, and the attitude of the “caregivers” reminds me of scenes from Dante’s Inferno. But then other facilities are wonderful. The staff is caring and attentive, the food is good, and the place smells clean and even healthy.
So if you’re the person having to put mom or dad in some kind of facility, how are you to decide? First of all, what are you looking for and what questions should you even ask? When you visit the facility, you will certainly be given the grand tour, and the food will be fine. But there is an overabundance of facilities (and their building more), and they need bodies in those beds. It’s hard to ferret out the truth.
I recently had coffee with Erin. She represents a company by the name of Senior Care Authority of St. Louis. Erin’s company (and probably others) is constantly visiting facilities, asking the kinds of questions we should be asking but don’t even know to ask. Since it’s her job, she takes the time to do all of that stuff. And it does take a lot of time. Most of us have regular jobs, and our only free time is our evenings and weekends. I found a lot of times that no one is even available to answer my questions when I am available. A company like Erin’s can help with all of that.
Yes, growing old is tough. But we hope that we can find care and compassion at that time in our lives. It’s good to know who’s in the know about something as important as this.
Fred L. Vilbig © 2019
Many years ago the firm I was with was approached by a Chicago law firm about merging. I admit the managing partner of the firm (I’ll call him Joe) at a wedding in my wife’s hometown. He seemed nice enough, but pretty intense.
The next week he called me. We started the process of investigating a possible merger. This is called “due diligence.” There were meetings between the partners, financial records review, and overall philosophies to consider and compare. It takes a lot of time and effort to think through something like that. You don’t want to make a mistake since undoing a merger is even worse than doing one.
We were almost done with all of that due diligence at the beginning of summer. Joe told us that we would need to take a short pause because his partners were making him take a vacation. Evidently, he hadn’t taken a vacation in years, and his partners were concerned about the amount of stress in his life. He and his family were going to Florida. He said he’d be in touch when he got back.
I was expecting a call after about two weeks. Nothing. Three weeks went by, and there was still nothing. Soon a month had passed, and still nothing. Finally, I called to see what was going on. I got his secretary, and in a very somber tone, she said that she would have someone call me back.
A day or so later I got a call from one of Joe’s partners. He told me that while sitting on the beach on vacation, Joe had suffered a massive heart attack and had died. We were stunned, to say the least. Evidently, the stress of taking a vacation had been too much for him and his heart.
Vacation season is one of those times of the year when people need to think about estate planning. If parents with small children are traveling alone, they need to make sure that everything is in order. When kids go on vacations alone or study abroad for the summer, they at least need to have a power of attorney - to handle financial matters when they are out of town or unconscious - and a medical directive - so someone can make medical decisions when they can't.
There is an old saying - "An ounce of precaution is worth a pound of cure." So a little planning can go a long way. Give me a call.
HOME FOR THE HOLIDAYS
Fred L. Vilbig © 2018
The holidays are great. The food, getting together with family, other people’s decorations. Yes, I said other people’s decorations. We have a peak on our roof that is about 30 feet up, and it must be at least 100 feet down. Yes, I’ll get the decorations up, but it is a death defying feat if I say so myself.
So where was I? Oh, yes: the holidays. My wife’s favorite holiday is Thanksgiving because it just involves cooking a big meal, and she’s a great cook. That’s lucky for my kids since I am not such a great cook, and it really stresses me out trying to get everything on the table at the same time while it is still hot.
But either at Thanksgiving or Christmas, the family gets together for a big meal. The out-of-town kids fly or drive in, and the in-town kids come over for a full house like it used to be. It seems that our holiday dinners last a long time with people staying around the table reminiscing about things. My wife and I often listen to the stories about what the kids did when they were young. Later we’ll check with each other and find out that neither of us knew anything about those things. Often we’re surprised, but at least no one got seriously hurt.
In addition to all of the good times that we have at the holidays, they are also a good time to check up on family members, particularly our parents. For some, we see our parents on a regular basis. We may not notice the little, subtle changes that may be taking place. For others who see their parents only once or twice a year, the accumulation of these little changes can be shocking.
When you’re home for the holidays, you may want to pay attention. Are they eating right? Are they dressing appropriately for the weather? As we age, we all get a little forgetful, but are they getting forgetful to the point that it is a problem? Have they gotten lost when going to the store? Do you see big changes in habits that seem to be ways of compensating for something? Did they use to be social, and now they are a homebody? Do you see big changes in their personality?
As we age, there are changes, but the question is whether they are creating problems. If not, it might still be a good idea to check to make sure that everything is in order. Do they have a will and/or a trust? Do they have a durable power of attorney? Do they have a medical directive that includes a medical power of attorney and a living will? And it’s important for the children to know who is going to be primarily responsible if something happens.
These may be tough, maybe even awkward questions to ask, but they are important. Surprises are not welcome, particularly when it is too late to fix things. In prior columns, I have written about times we have fortunately discovered problems before it was too late. And in other columns, I have written about those times we were too late to fix the problem directly, but we were able to find ways to work around the problem. But there are times when we discover the problems too late to fix other than by going to court, and the client ends up paying a lot of money in legal fees. So even though the questions may be tough and awkward, not asking them can end up costing a lot of money and aggravation.
So enjoy your holidays, but you might want to ask some questions … before it’s too late.
PLANNING FOR YOUNG CLIENTS
A friend recently called me. He has two daughters in their 20’s. They recently got jobs, and they were in the process of applying for benefits. They were asked about whether they had a will, whether they had a power of attorney, and who should be called to handle medical emergencies. That got them thinking, and they turned to their dad for advice. That was nice.
It may seem strange that a 20-something single person needs to think about a will. At that age, dying is one the last things people think about, but it makes sense. With a will, you get to say where your property goes when you die. You can cover that with pay-on-death and transfer-on-death beneficiary designations, but those can be of limited value, and people miss things. So a basic will makes sense.
In addition to saying where things should go, you get to pick who is going to go through your stuff and administer your estate. Even a 20-year-old (or maybe particularly a 20-year-old) doesn’t want just anyone going through their stuff, even when they’re dead.
So even if you think you’ve done all of your planning, it is possible to have missed something, and will is a good safety net. If you don’t have kids, the will can be very simple, but if you have kids, you want to say who is going to be their guardians, and you probably want to avoid having the court administer their money sort of like in a Dicken’s novel.
In addition to a will, a young person certainly would want to have a durable power of attorney. Maybe it’s just my job, but I constantly run into situations fairly regularly where someone is in an accident or gets ill and can’t handle their business affairs. A durable power of attorney (and the word durable needs to be in it) allows someone to handle these things when you can’t.
And finally, a young person needs to have a medical directive of some sort. These do several things. First, they are a medical power of attorney that authorizes someone you name to make medical decisions whey you can’t. Second, they need to include HIPAA authority so that a doctor can talk to your family about your condition. I recently reviewed a medical directive that did not have HIPAA authority. Fortunately, we caught it before they needed to use it because, with that authority, doctors and hospitals won’t talk to anyone about anything.
The last thing that a medical directive should include is a living will. If someone is in a car accident, close to death, with no hope of improvement no matter what is done, do they want to be kept “alive” on machines or just allowed to die a natural death? It’s not a pleasant thing to think about, but it is so important when the time comes.
So when my friend called and asked what his daughters should do, I told them they needed to do some planning. It can make a lot of difference if the unthinkable happens.
NOT WHAT SHE HOPED FOR
Fred L. Vilbig © 2018
Joe (these are not the real names) came to see me about estate planning. He knew that he needed to do something, but he didn’t really know what. Sometimes you don’t even know what you don’t know, but at least he knew he needed to do something more.
Some time ago, his wife, Leslie, decided she wanted to do some estate planning. She didn’t know any attorneys, but she had heard about online estate planning websites. She went to LegalZoom and liked what she saw. She thought she’d need a will, a general power of attorney, and a medical directive. So she worked those up, printed them, signed them in front of a notary, and she was done.
But time can change things. Leslie had been a very intelligent person holding down an impressive job before she retired. After that, she started forgetting things – little things at first, but over time, more and more. She had trouble thinking through problems, big ones at first, but soon even the little stuff. She started making some bad decisions like going outside in a heavy coat in the heat of summer or wearing shorts outside in the depths of winter. Or she might just go outside and stand in the rain totally oblivious to it. If she had just had momentary, isolated lapses, that would’ve been one thing, but it all became the regular course of daily life. Joe knew something was wrong.
He took Leslie to the doctor. The doctor confirmed Joe’s worst fears: it all pointed to Alzheimer’s. All of a sudden, Joe’s entire world, his future, was turned topsy-turvy.
But Joe thought everything would be okay legally. After all, Leslie had prepared her legal documents. But Joe had heard about probate and trusts , so he called me to see if he needed to do something more to protect Leslie if he died first; after all, he was 80. He wanted to do everything he could to protect her. A good guy.
He came to see me, and we discussed the situation. I recommended a trust to take care of Leslie and avoid probate. He liked the idea. We could set up a trust, and using Leslie’s power of attorney, Joe could transfer assets to the trust to avoid probate. So at least that much was covered. But there were still problems.
Joe realized that when Leslie prepared the power of attorney and medical directive, she had not included any backups. She had only named Joe. Due to his age and health, Joe was very concerned about what would happen to Leslie if he died first. Since Leslie had not provided a backup, when Joe died, without a court order, no one could make living arrangements for her; no one could talk to a doctor about or make decisions regarding her medical needs; and no one could administer Joe’s large IRA for Leslie’s benefit.
Joe’s only real option was to have Leslie judicially declared incompetent, get himself appointed as Leslie’s Guardian and conservator, and write a will identifying who should serve as successor guardians and conservatives. The court would be required to follow his suggestions, but it was the best he could do under the circumstances.
So Joe was faced with the unenviable choice of having his beloved wife paraded into court to be declared incompetent (and incur the costs for that) or just hope that she died first. A terrible conundrum to say the least.
HEALTH CARE PRIVACY
Fred L. Vilbig © 2018
HIPAA is the Health Insurance Portability and Availability Act. Many people refer to it as the “Privacy Law.” It’s a thick law (something like 2 inches), and it covers more than just protecting medical records, but that’s the provision that impacts people the most.Most doctors and hospitals have interpreted it to mean that without (written) permission, they can’t talk to anyone about anyone else’s medical condition. One of my former partners had to read the whole thing, and he didn’t think that was what it required, but that’s not what the lawyers for the health care industry thought.
When the law was first passed, medical providers became like Sergeant Shultz – “I know nothink!” One father (who happened to be an attorney) got a call from a hospital in Denver. His daughter had been skiing in Colorado, and the hospital told him he needed to come out. When he asked what was wrong, they said they couldn’t tell him because of HIPAA. Then there was the couple in a car accident. The husband was banged up, but the wife was unconscious and needed surgery. They asked him to sign an “informed consent.” When he asked what was wrong and what they were going to do, they said they also couldn’t tell him because of HIPAA.
Medical professional have relaxed these strict standards somewhat, but it can still be an issue. If you want medical professionals to be able to talk to your loved ones when you are unable to give consent, you need to execute a HIPAA authorization of some sort. Even more, it would be better to sign a medical power of attorney with HIPAA authorization in it allowing medical professionals to talk to family members. We usually do a Medical Directive which is a combination health care power of attorney and living will that includes broad HIPAA authorizations. We also do a separate HIPAA authorization (perhaps overkill) allowing medical professionals to talk to family even when you’re not incapacitated.
When I talk to clients about Medical Directives, they often tell me that they already have one. Upon admission to a hospital, patients are often asked (if not required) to sign a HIPAA release. They vary from place to place, so I can only talk about the ones I have seen, but in some instances (not all though) the releases are very narrow. They only apply to that particular stay at that particular hospital or doctor’s office. You can use those forms at any other time or any other place. So if you have a serious medical event, that HIPAA authorization won’t do you much good.
So even if you already have some sort of a HIPAA authorization, you might want to look at it. And if you don’t have one, you should think seriously about getting one. When you need it, it’s too late to sign one.
I have a client in her late 80s. Since she has mobility issues, I went by her house to answer some questions she had. Her health has been failing, so she wanted to make sure that her affairs were in order.
She had her estate plan prepared by another attorney over 25 years ago. The laws have changed a lot since then, but not in ways that really affected her plan.
She had a trust. It all looked in order. We checked her various accounts and assets. It looked as if they were all in her name as trustee, which is what I wanted to see. There were some questions about her IRAs, but I told her son and daughter-in-law what they needed to do with those. That was kind of an easy fix.
She also had a pour over will. A pour over will is like a safety net to make sure everything ends up flowing through the trust which is the primary document.
I didn’t see a financial durable power of attorney in her estate planning documents folder which I thought was odd. A durable power of attorney for financial matters authorizes someone to handle your financial assets for your benefit when you are no longer able to do so.
I asked about it, and her son handed me another folder that had the power of attorney in it. It was in a different style from the trust and the will too. When I asked questions about it, they told me they had printed it off the Internet. Evidently the attorney who prepared the will and the trust had not prepared a financial durable power of attorney for her.
Since my client’s health was not good, her daughter-in-law asked about medical decisions. I asked if they had a medical directive. I got blank stares. I asked about a health care power of attorney. More blank stares. I asked about a living will, and they said that they had heard of that. It turns out that apparently their estate planning attorney had not addressed any medical issues with her.
There are really two types of documents or provisions that we use to address health care issues. The first is a medical durable power of attorney. By means of this document, a client authorizes someone to make medical decisions when they are not able to. These are not necessarily end-of-life kind of things. For instance, someone needs to say it’s okay to set your broken arm when you passed out after you broke it.
The other type of healthcare document is the living will. A living will provides that when you are in a persistent vegetative state with no reasonable expectation of recovery, no “extraordinary means” should be taken to continue your life. In Missouri, the phrase “extraordinary means” is not specifically defined. Unless you state otherwise, it is presumed that a patient wants all procedures to be used to keep them alive. You have to specifically indicate if you want the healthcare professionals to withhold chemotherapy, radiation therapy, CPR, artificial nutrition and hydration, and even antibiotics. You do this with a living will.
Typically, the medical durable power of attorney and the living will are combined in a single document referred to as a medical directive or a health care directive. It makes sense to combine them since they deal with different aspects of basically the same situation.