What Happens if a Family Member Becomes Incapacitated?

Service to those who have served our country provides an opportunity to give back and potentially locate people who require our assistance. While the VA has very serious rules regarding who can represent Veterans, helping educate them and their spouse is something our profession should do. Estimates range from 25 to 70 million Veterans who may be eligible for some type of veteran’s benefits. Many of whom have no idea of the various benefits potentially available to them. Obtaining accurate information unfortunately can be difficult for veterans and their spouses. This article is intended to provide information regarding a VA program many within the senior market continue to encounter. The program is commonly referred to as Aid and Attendance; however, it is actually an Improved Pension plus Aid and Attendance. (Aid and Attendance is also a term used for VA disability, which this article does not discuss.) WHAT IS AID AND ATTENDANCE? Aid and Attendance is a special monthly pension available to war time veterans and a surviving spouse of a war time veteran who are also 65 years or older or 100% disabled. It is considered a means tested program; meaning veterans or their spouses must meet certain eligibility requirements. Congress directed the United States Department of Veterans Affairs to establish a program for veterans and their surviving spouses to help defer certain medical expenses which pushed the veteran or spouse into poverty levels. The maximum monthly benefit for this is program each month is $2,085 for a veteran with a spouse; $1,759 for a single veteran; $1,130 for a surviving spouse of a veteran; and $2,790 if both are veterans. It is important to understand this is not a all or nothing benefit. To determine what the benefit will be one should have an understanding of the how one is determined eligible. The following are four stages that must be cleared. WAR TIME VETERAN Many people do not consider themselves war time veterans because they were never deployed to the battlefield. However, this program does not distinguish between service at home or abroad. To meet this element the veteran must have served 90 consecutive days in the military with one day of active duty during a period of war time. The war periods are for WWII December 7, 1941 through December 31, 1946; Korean War June 27, 1950 through January 31, 1955; Vietnam August 5, 1964 through May 7, 1965. In addition to meeting the service period, the veteran must also have received a discharge other than dishonorable. MEDICAL ASSESSMENT A Veteran or their spouses must meet a medical determination which can be accomplished in two ways. First, if the claimant requires assistance with their activities of daily living as evidenced by a physician showing the aid of another person to perform at least two activities of daily living, such as eating, bathing, dressing, transferring, dressing, toileting, or grooming; OR being a patient in a nursing home OR being blind or nearly blind. The other way to meet this requirement is to demonstrate the claimant is housebound. Here evidence must demonstrate the claimant has a single permanent disability rated 100 percent. Income Assessment Aid and Attendance does not have an income limit per se; however, they do require the claimant have insufficient income to meet their needs. The VA is looking for the claimant’s “income for VA purposes” (IVAP). This is determined by taking the Gross income and deducting the unreimbursed medical expenses (UMEs). Then one subtracts the IVAP from the maximum amount the claimant would be entitled (MAPR) to receive if otherwise eligible. Assuming the IVAP is less than the MAPR this step is cleared. To illustrate consider a veteran who has an income of $3,000 per month and is paying $4,500 for an assisted living with memory care. The maximum the veteran would be entitled to would be $1,759. Therefore his IVAP would be approximately $-1,500. (There is a 5% set aside in determining the unreimbursed medical expenses which is not covered here.) Therefore the VA would determine the Veterans had insufficient income to meet his/her needs. ASSET ASSESSMENT This is the most often misrepresented part of the claimant’s assessment. Many have stated incorrectly there is an asset limit of $80,000. However, the rule states if the claimant has assets greater than $80,000 the case must be approved by a supervisor. Like the income assessment the VA is looking to see if the claimant lacks the ability to pay for their medical expenses. Here they are looking at the claimant’s need for care over their life time. They consider the claimant’s life expectancy, UMEs, income, and assets to determine whether they will run out of assets prior to their death. This leaves agents in a state of flux when asked whether they have sufficient assets. Generally one would consider a veteran over the age of 65 to be on a sliding scale. If they use the $80,000 as a measuring rod to start with at age 65 the claimant will need less and less as they age. For example an 85 veteran with a high income may be limited to $20,000 or if they have a very low income and high medical cost they may be allowed to have $80,000. To determine a firm number an Agent should work with a VSO or accredited agent with the VA familiar with this program. (Do not assume everyone who is a VSO or Agent understands this program. Determine their level of involvement.) WHY LEARN ABOUT THIS? Many will question why they need to understand this program if they can not represent or work directly on the client’s behalf with the VA. First, without the correct information you may lose your established client base as they get drawn to others who do have the answers (or worse yet scam artist looking to take advantage of them). Second, by being knowledgeable about this program you will be able to speak to more potential clients who have questions about how they will pay for their long term care regardless of whether they qualify. I have spoken to many veterans who had “the correct service record”; however, they could not meet the asset eligibility test without substantial loss. Still, I have been able to provide other benefits for them. Finally, the old saying you get what you give plays in; by helping these individuals be aware of benefits they are entitled to receive you are sowing seeds which over time will reap additional business for you. THE TEAM Many times the advisor’s most difficult task in this area is to organize a client’s assets in a way as to best demonstrate why the client meets the eligibility assessment and accomplish this without causing further problems down the road. Like Medicaid planning this often requires income, tax planning and the utilization of financial products such as annuities. The client’s advisors are going to be a mix of an Elder Law attorney, a CPA, a VSO, and a financial advisor. They must work together to determine the best combination of strategies and financial products that will gain eligibility for this special monthly pension, but do not disqualify the client from Medicaid in the future (a benefit many require prior to death for skilled care), cause an unreasonable tax liability, or place assets at risk by transferring to other family members. A client’s plan takes in professions beyond our own and avoiding over exposure to risk is accomplished through the team approach. THE PROCESS While the application process for special monthly veteran’s benefits can be very slow, taking over a year sometimes before the VA makes a decision, this benefit is retroactive to the month after the application was submitted. Having the proper documentations in place at the time of application is most important. Example, discharge papers, medical evidence, medical expense reports, death certificates, marriage certificates, and a proper and completed application can cut this process in half. Having a VSO you can speak with will help you understand what is needed. CONCLUSION Every advisor who specializes in working with retirees should understand this program. Advisors who do not wish to expand their knowledge of VA should still be able to recognize the opportunity to educate and if necessary refer prospects and/or existing clients to an Elder Law Attorney and/or Veteran Service Officer. Top Ten Tips To Remember When Working With The VA Jason A. Waddell Board Certified Elder Law Attorney Pensacola, FL 1. Only accredited agents can complete and apply for benefits for clients. 2. One can not charge for doing the application process. 3. Find, meet and befriend Veteran Service Officers in your area. 4. There isn’t a look back period for gifts but there is pending legislation to impose one. 5. Medicaid has a five year look back period and transfers made for the purpose of qualifying for Aid and Attendance can later disqualify the person for other benefits. 6. There are additional benefits given when one is approved for Aid and Attendance in addition to the monthly benefit; therefore, even if the claimant will only receive a small amount monthly through this program it may benefit them to proceed. 7. The home, car and personal belongings are non-countable in the application process. 8. If the application has been pending for more than 9 months I suggest they call contact their representatives (Senators and Congressional representative). 9. Watch out for UPL (unlicensed practice of law): drafting certain trusts, contracts, deeds, and other estate documents is a criminal act if done without a license in most states. Additionally, such action can lead to civil liability if problems arise. 10. Locate a qualified Elder Law attorney. The largest and most noted Elder Law Organization is the National Academy of Elder Law Attorneys. (NAELA). Their web site (www.naela.org) has a means of searching for an attorney in your area.

In a world where we seem to now depend on technology for everything, the FBI has issued a warning about a new and sophisticated scam known as the "Phantom Hacker Scam." This alarming trend is targeting unsuspecting individuals and organizations, leading to significant financial losses and data breaches. In this blog post, we will delve into the details of this scam, how it operates, and what you can do to protect yourself. What is the Phantom Hacker Scam? According to the FBI, the Phantom Hacker Scam involves cybercriminals posing as legitimate IT professionals or cybersecurity experts. They often approach victims claiming to have detected a breach in their systems or that their accounts have been compromised. The scammers may provide false evidence of the breach, such as screenshots or alerts, to create a sense of urgency and panic. Once they have gained the victim's trust, the scammers will offer to help them remediate the "breach" and request sensitive information, such as passwords and account numbers. They may also request payment for their services, which can range from hundreds to thousands of dollars. How to Protect Yourself Our advice as well as the FBI advises individuals and organizations to be vigilant and take the following precautions to protect themselves from the Phantom Hacker Scam: 1. Verify the Source: Always verify the identity of anyone claiming to be a cybersecurity expert. Contact your IT department or a trusted cybersecurity professional to confirm the legitimacy of the claim. If you do not work with an IT professional it is best to contact a family member to bounce this information against. Often by simply talking about what is being said it will help you realize something doesn’t add up. 2. Be Skeptical of Urgency: Scammers often create a sense of urgency to pressure victims into making quick decisions. Take your time to assess the situation and gather information before taking action. Again, talk to family and friends. Don’t be afraid to ask for help from those you know. 3. Do Not Share Sensitive Information: Never share passwords, account numbers, or other sensitive information with anyone you do not know personally. If it is a financial institution hang up and call that financial institution back on a number you have from their materials given to you. If you don’t have anything go to their location. 4. Report Scams: If you believe you have been targeted by a scam, report it to the FBI's Internet Crime Complaint Center (IC3) at www.ic3.gov. Conclusion The Phantom Hacker Scam is a reminder of the importance of cybersecurity and vigilance in today's digital landscape. By staying informed and taking proactive measures, you can protect yourself from falling victim to this and other online scams. For more information on the Phantom Hacker Scam and other cybersecurity threats, visit the FBI's website. Stay safe and stay informed!

As retirees embrace the digital age, there are several important considerations and potential risks they should be aware of: 1. Online Scams and Fraud: o Retirees may encounter phishing emails, fake websites, or fraudulent phone calls. These scams often target personal information, financial details, or even attempt to impersonate trusted organizations. o Advice: Be cautious when receiving unsolicited emails or calls. Verify the legitimacy of requests before sharing sensitive information. 2. Weak Passwords and Security Practices: o Using weak passwords or reusing the same password across multiple accounts can compromise security. o Advice: Create strong, unique passwords for each online account. Consider using a password manager to securely store and manage passwords. 3. Privacy Concerns: o Sharing personal information online can lead to privacy breaches. Social media platforms, online forms, and shopping websites collect data that may be used for targeted advertising or other purposes. o Advice: Review privacy settings on social media platforms. Be mindful of what information you share publicly. 4. Tech Support Scams: o Scammers may call claiming to be tech support representatives from well-known companies. They might ask for remote access to your computer or request payment for fixing nonexistent issues. o Advice: Never grant remote access to unknown callers. Legitimate tech support won’t ask for payment upfront. 5. Health Information and Telemedicine: o With the rise of telemedicine, retirees may share health information online. Ensuring the security and privacy of medical data is crucial. o Advice: Use reputable telehealth services and verify their security protocols. Keep medical records secure. 6. Social Isolation and Mental Health: o Relying solely on digital communication can lead to social isolation. Retirees may miss out on face-to-face interactions. o Advice: Balance online interactions with in-person connections. Stay connected with family and friends both online and offline. 7. Financial Transactions: o Online banking, shopping, and investment platforms are convenient but require caution. Unauthorized transactions or identity theft can occur. o Advice: Regularly monitor bank statements, credit card activity, and investment accounts. Report any suspicious transactions promptly. 8. Digital Literacy and Learning Curve: o Retirees who are less familiar with technology may struggle with navigating websites, apps, and devices. o Advice: Seek assistance from family members, friends, or local community centers. Attend technology workshops to build digital skills. 9. Device Security and Updates: o Outdated software and lack of security updates can make devices vulnerable to cyberattacks. o Advice: Keep devices (computers, smartphones, tablets) updated with the latest security patches. 10. Elder Abuse and Online Harassment: o Retirees may face online harassment, cyberbullying, or financial exploitation. o Advice: Report any abusive behavior or harassment. Seek legal help if necessary. Remember, staying informed, cautious, and proactive can help retirees navigate the digital landscape safely.

A common question I receive in my office is what will happen to my home when I pass away if I die in a nursing home? For Florida residents the answer is quite different than other states. In Florida if you pass away and your home is being left to your family then it is protected by our homestead laws. This is true whether it enters probate or not. Some would argue that going through probate is a more secure way to protect it because it would have an order declaring it as homestead where if it passed to the family through a trust there wouldn’t be an order. As most know I am not a fan of entering into a trust document when there is only homestead property; however, to be clear your home is protected so long as the family meets the definition of family. This begs the question who is my family? The Florida Supreme Court has defined “heirs” in relation to homestead protection as “any family member within the class of persons categorized the Florida intestacy statute.” So, if you are like me then that answered absolutely nothing as it does not address a decedent’s deceased spouse’s family who in many cases closer to be related than others within the statute. Since that opinion by the Supreme Court there have been subsequent cases which have tackled the issue of children of a decedent’s deceased spouse and found they can fall within the protected class. Does that mean children from another marriage have a right to claim an interest in an estate? No, if there isn’t a Will devising the property to those individuals they will not take under the law of intestacy which is the law followed when one does not have a Will. If you are reading this and concerned about your homestead, what action should you take? Well it depends (you have to love lawyers). You may consider altering your deed to name a beneficiary, or you may simply revisit your will to confirm that you didn’t put a charity in a place where they might receive the homestead. There are many things you might do depending on your circumstances. What I will caution you against doing is transferring an interest in your home to your children or others. Our firm has seen a pattern where parents transfer their home to their children but reserve a life estate. This is a very dangerous planning method for the vast majority of people in Florida. My reason(s) for saying this are so long they justify their own blog posting; for now just trust this is a bad technique, which has been abandoned by most attorneys for decades but still is followed by people who dabble in this type of work. In the end the Medicaid recovery act is real, and there are families which may lose their homestead protection. However, those individuals were the ones who did not seek help with their estate plan. Florida protects homestead so long as you intend to leave your home to your family. If you have further questions regarding this post please let us know.

The following has been taken from several recent article s and announcements sent to facilities th roughout the country. This summarized version hopefully will provide some understanding of wh at to expect w hen visiting. Plea se keep in mind facilities are bound by their license to follow these guidelines. Everyone is attempting to protect the residents and staff. Patience and understanding by all is going to be necessary. The Centers for Medicare & Medicaid Services (CMS) is taking action to protect the health and safety of our nation’s patients and providers in the wake of the 2019 Novel Coronavirus (COVID-19) outbreak. According to the latest data from the Centers for Disease Control and Prevention (CDC), seniors are at the greatest risk of serious illness due to COVID-19, which is why CMS is providing valuable information to providers who interact with patients in the hospice setting. To protect these vulnerable patients, CMS is amplifying its current health and safety requirements by delivering detailed guidance on the screening, treatment and transfer procedures healthcare workers must follow when interacting with patients to prevent the spread of COVID-19. CMS is also issuing additional guidance specific to nursing homes to help control and prevent the spread of the virus. Limiting visitors and individuals: Expanded recommendations: CMS is providing the following expanded guidance to prevent the spread of COVID-19 (in addition to the information above about restricting visitors).  • Restricting means the individual should not be allowed in the facility at all, until they no longer meet the criteria above.  • Limiting means the individual should not be allowed to come into the facility, except for certain situations, such as end-of-life situations or when a visitor is essential for the resident’s emotional well-being and care.  • Discouraging means that the facility allows normal visitation practices (except for those individuals meeting the restricted criteria), however the facility advises individuals to defer visitation until further notice (through signage, calls, etc.). 1. Limiting or Discouraging visitation:  a) Limiting: For facilities that are in counties, or counties adjacent to other counties where a COVID-19 case has occurred, we recommend limiting visitation (except in certain situations as indicated above). For example, a daughter who visits her mother every Monday, would cease these visits, and limit her visits to only those situations when her mom has a significant issue. Also, during the visit, the daughter would limit her contact with her mother and only meet with her in her room or a place the facility has specifically dedicated for visits.  b) Discouraging: For all other facilities (nationwide) not in those counties referenced above, we recommend discouraging visitation (except in certain situations). See below for methods to discourage visitation. Also see CDC guidance to “stay at home” https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-riskcomplications.html#stay-home. 2. Affirmative action Facilities should take:  a) Increase visible signage at entrances/exist, offer temperature checks, increase availability to hand sanitizer, offer PPE for individuals entering the facility (if supply allows).  b) Also, provide instruction, before visitors enter the facility and residents’ rooms, on hand hygiene, limiting surfaces touched, and use of PPE according to current facility policy while in the resident’s room.  c) Individuals with fevers, other symptoms of COVID-19, or unable to demonstrate proper use of infection control techniques should be restricted from entry.  d) Signage should also include language to discourage visits, such as recommending visitors defer their visit for another time or for a certain situation as mentioned above. 3. In addition to the screening visitors for the criteria for restricting access (above), facilities should ask visitors if:  • they took any recent trips (within the last 14 days) on cruise ships or participated in other settings where crowds are confined to a common location.  • If so, facilities should suggest deferring their visit to a later date. If the visitor’s entry is necessary, they should use PPE while onsite.  • If the facility does not have PPE, the facility should restrict the individual’s visit, and ask them to come back at a later date (e.g., after a 14 days with no symptoms of COVID-19). 4. In cases when visitation is allowable, facilities should instruct visitors to limit their movement within the facility to the resident’s room (e.g., reduce walking the halls, avoid going to dining room, etc.) 5. Facilities should review and revise how they interact with volunteers, vendors and receiving supplies, agency staff, EMS personnel and equipment, transportation providers (e.g., when taking residents to offsite appointments, etc.), other practitioners (e.g., hospice workers, specialists, physical therapy, etc.), and take necessary actions to prevent any potential transmission. For example, do not have supply vendors transport supplies inside the facility. Have them dropped off at a dedicated location (e.g., loading dock). Facilities can allow entry of these visitors as long as they are following the appropriate CDC guidelines for Transmission-Based Precautions. For example, hospice workers can enter a facility when using PPE properly. 6. In lieu of visits (either through limiting or discouraging), facilities can consider:  a) Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.).  b) Creating/increasing listserv communication to update families, such as advising to not visit.  c) Assigning staff as primary contact to families for inbound calls, and conduct regular outbound calls to keep families up to date.  d) Offering a phone line with a voice recording updated at set times (e.g., daily) with the facility’s general operating status, such as when it is safe to resume visits. 7. When visitation is necessary or allowable, facilities should make efforts to allow for safe visitation for residents and loved ones. For example:  a) Suggest limiting physical contact with residents and others while in the facility. For example, practice social distances with no hand-shaking or hugging, and remaining six feet apart.  b) If possible (e.g., pending design of building), creating dedicated visiting areas (e.g., “clean rooms”) near the entrance to the facility where residents can meet with visitors in a sanitized environment. Facilities should disinfect rooms after each resident-visitor meeting.  c) Residents still have the right to access the Ombudsman program. If in-person access is allowable, use the guidance mentioned above. If in-person access is not available due to infection control concerns, facilities need to facilitate resident communication (by phone or other format) with the Ombudsman program or any other entity listed in 42 CFR § 483.10(f)(4)(i). 8. Visitor reporting:  a) Advise exposed visitors (e.g., contact with COVID-19 resident prior to admission) to monitor for signs and symptoms of respiratory infection for at least 14 days after last known exposure and if ill to self-isolate at home and contact their healthcare provider.  b) Advise visitors to report to the facility any signs and symptoms of COVID-19 or acute illness within 14 days after visiting the facility. For more information you may visit the following: https://www.cms.gov/newsroom/press-releases/cms-issues-clear-actionable-guidance-providers-about-covid-19-virus https://www.cms.gov/files/document/qso-20-14-nh-revised.pdf https://www.ahcancal.org/facility_operations/disaster_planning/Documents/SNF-Guidance-Preventing-COVID19.pdf

 Many people make an incorrect assumption that I know more than I actually do know. When out socially, it is not uncommon for someone to ask me about a contract they are signing or for a relative to call and ask if they have a case against a neighbor. Even after years of explaining my expertise is in Elder Law, I continue to get these questions. I have explained I am on top of my field with Elder Law but that does not mean I am on top of the overall legal profession (only a fool would ever considering himself or herself there).  Many know I served on the Florida Bar’s Grievance committee for three years. There we would hear complaints about other attorneys and determine if there was probable cause for the Bar to proceed further against them. We would often hear an attorney say something along the lines of I thought something was better than nothing. A statement which is wrong far more than it is right. In the end the attorney should have never accepted the case and their license was now at risk for attempting to give the “something.” This isn’t simply an attorney issue. I see many people coming into my office and show me documents they have “helped” their love ones create. I have extremely educated individuals come in and show me (somewhat proudly) that they went online and purchased an estate plan. What these people often learn during a meeting with me is the quick and easy document may work to open a bank account; however, for someone in retirement who has a progressive illness those documents fall well short of what is needed once we start working with the Federal Government, Pension companies, the IRS, and the like.  An all too common issue we see is with a poorly drafted Durable Power of Attorney (DPOA). People will slide it across the table and even before opening it I know it will not cover irrevocable trust planning which will be necessary even if the person is completely broke but has $2,349.01 in gross income each month and needs Medicaid. These DPOAs come from online sources; however, too often they come from attorneys who thought they were doing a favor for a friend (often under the assumption it is only a form right). Without a properly worded DPOA the fees often double well into the thousands. All is avoided in the majority of cases for a few hundred. Proving the old adage an ounce of prevention is better than a pound of cure.  I could continue with this right into other areas of my practice such as using financial advisors to do public benefits planning, which is something the Florida Supreme Court has ruled the unlicensed practice of law in the case (SC14-211); however, if you are reading this I know you are smart enough to know the limits of what you should attempt on your own. Let us just hope other professionals can follow our lead.  Until next time if you have a question about your estate or retirement plans and would like to discuss it with me please know we are accepting new clients. Be good to your family.

From time to time I receive the question “what can I do to protect my parent from themselves”. In situations such as this, the parent often is suffering from a dementia related illness, and while still competent for the most part is making snap decisions they would have previously never made. The adult child doesn’t want to file for Guardianship because of the direct challenge to the parent’s competency and high cost. At the same time, the child does not want Dad to go buy a new $60,000 SUV either. There are several steps I can recommend in this situation to protect a loved one from making poor decisions. 1. First a good Durable Power of Attorney (DPOA) is the cornerstone of a solid plan. What do I mean when I say “good”? One that is drafted by an attorney who works with people in your loved ones situation. This document while simple in appearance is actually very complex in the state of Florida. In 2011, the Florida Legislature enacted a new DPOA statue with specific requirements on what language should be included within a DPOA. The vast majority of online documents lack this information. Further, many general practitioners or non-elder and estate attorneys are unaware of the change in the law. Spend the extra few hundred dollars to obtain a Durable Power of Attorney that will work when the time comes. Otherwise, you may find yourself spending thousands to protect your loved one. 2. Establish an online account presence with their accounts. Many parents do not have online access to their accounts. With many children living in other areas from their parents, purchases can go unnoticed. Parents often have a feeling the decision they made was a poor one and will not mention it on calls. If you are monitoring purchases you can often catch where scams or poor decisions are being made. Of course you need to have your parents’ consent to access their account, which is why step-one was a DPOA. 3. If parents show signs of making large transactions on credit, place barriers between them and credit. Cancel credit cards or reduce balance to small amounts that if lost would not hurt the overall estate. Additionally, credit reporting agencies have the ability to freeze people’s credit. Equifax has just such a service and the link provided takes you to the sight where they walk you through the process. If the parent can’t obtain new credit, then spur of the moment decisions can’t be made. 4. Still, freezing ones’ credit does little for parents who are a little too trusting of people. It is common to see many seniors succumb to various scams by people who on the surface seem trustworthy. These people can be in social organizations, churches, or just strangers online or calling their home. Protection from these individuals can be extremely difficult. Our office has walked into cases from people who have deeded their home to a church, agreed to send large and small sums of money to fake charities, as well as many, many overseas internet scams. For many of these parents the issue is one of control. They do not want to have someone remove control of their accounts. Ironically, the more one pushes to help the more they may reach out to unscrupulous individuals. When we meet with clients we remind them that a family member acting through a Power of Attorney is not taking control. They are called an Agent because they work with and for the person signing the document. For these issues a conversation with a qualified attorney could help. If you have ever noticed law firm signs that say attorney and counselor at law then you will appreciate that Elder Law attorneys really are more on the counselor end of that spectrum. They understand the fears and anxiety that many feel and can help people understand what is being granted and what is not. 5. If the loved one’s sole asset is Social Security then you can become the representative payee Agent through the social security process. This will allow you to receive the Social Security check. You will become the fiduciary for the individual, which means you are liable for using the money for their care (you are as an Agent through a DPOA also). For more information you can visit Social Security . If at the end nothing seems to be working to stop the parent and they either will not allow you to help or lack the capacity to give you the authority to help you may be forced to obtain a Guardianship. Working with an attorney whose practice handles Guardianships on a daily basis is key. Attorneys who practice criminal law, family law and Guardianships are likely going to lack the specific knowledge of techniques and services to make the process as respectful as possible. While strong advocacy is important in a litigation attorney, Guardianship is a mix bag of social work, legal knowledge, and advocacy. I handled contested and uncontested guardianships for 15 years (I stopped accepting new cases several years ago). I was always shocked at how litigation attorneys could seemingly divide a family while going through the process. It is not necessary. Work with the right attorney and you increase your odds of making it through without losing relationships. Still the best policy is to plan prior to a problem arising. We can accomplish far more working together while everyone is competent and can explain their goals and desires. There is no cookie cutter way to plan estates. My office seeks to help families find the right plan for their unique situation.

 “Who will manage my estate when I am gone?” is a common concern for many. I can see the concern in my clients eyes as they say that they trust their child but worry over their in-laws influence. Others will tell me they love their children but simply cannot trust them with their estate. There are many reasons people will set up a trust to resolve their estate. For those individuals, many are finding comfort with the fact they can appoint an individual or group of individuals to act as a protector of their original intent. A trust protector is simply a person or a group of people who follow a trust after a certain event (often the death or incapacity of the person who established the Trust). The powers vary as to what a trust protector may do. However, a general list would be audit the accounting, remove and name another trustee (rarely themselves), amend language to provide better tax protections, etc. The goal is to create a little check and balance within the trust to help insure the wishes are followed out. Of course there are limits to the Trust Protector. First and foremost they should be acting as a fiduciary; meaning they are not acting in their own personal interest but in the interest of the trust. They likewise can’t remove a professional trustee and name their spouse as trustee. They can’t modify who is a named beneficiary (absent special circumstances such as the beneficiary becomes disabled and the funds would be better protected in another type of trust). Most trust protectors are compensated in some form or fashion; however, their work shouldn’t be an ongoing matter. Further, many trust protectors are family and do not care about compensation. Generally the cost of a trust protector is low. The drafting attorney should be able to estimate what they would anticipate the cost to be, if any, on an annual basis. You are likely wondering who acts as a trust protector? There is no simple answer to this question; however, often if the trust names a corporate trustee then the beneficiaries might serve as a trust protector. Many people will name their CPA firm as a Trust protector along with a beneficiary or two. On rare occasions people will name their attorney to this role. However, this normally will only occur when they require help with a specific part of their estate. The ongoing cost for an attorney to serve in this role traditionally make it impractical. In the end a properly drafted trust can benefit from a trust protector when there is some uncertainty surrounding the trustee being appointed, the potential actions taken by beneficiaries, complex tax and public benefits being sought by heirs or family disagreements which may make administration difficult for the trustee. If you have a trust and believe your trust could benefit from a trust protector then you should schedule time to discuss this important matter with your attorney. If you are in the Pensacola region and would like to discuss the matter further with me, feel free to reach out as we are accepting new clients.

A common situation we find ourselves in is who to leave our estate to if there was a common accident. Take a recent client who came into our office. She has one daughter and no grandchildren. Her daughter is 55 years old, therefore, is not planning to start a family. The client explains that her siblings are financially stable and elderly themselves so she wouldn’t want to leave them her estate if her daughter passed prior to her or with her. She likewise doesn’t want to leave the funds to her friends. I then start asking questions such as what are you passionate about? What groups help you, inspire you, or make you feel more hopeful for a better tomorrow? From time to time, clients will provide the name of a group I haven’t heard of, or worse yet, a group I have heard of but with a slightly different name. Red flags go up immediately and I go into protector mode. I know that scams on retirees is a 30+ billion dollar a year problem (yes that is a “b”) in the United States. Personally, I believe the problem is much worse as many seniors are afraid to report the scam out of fear their family will believe they are incapable of managing their affairs (back way to judge incapacity, by the way, but that is another topic). Therefore, when I hear of something I am unfamiliar with I go into action to research the group. How can you better protect yourself and those you care about? A common method for debunking myths is to go to the website www.snopes.com . This is a site I forward to my mother on a nearly monthly (and during the holidays and election years weekly) basis due to Facebook. However, for charities it likely will not be the best place to research a group. AARP has many great tools to help you research groups. For example you can visit the AARP Fraud page for a list of different ways to spot a scam. They also have list of groups they have vetted. Another site I have used to research nonprofits is Charity Navigator . Here you will find the financial background of many charities. Groups such as this have helped expose how many charities look good with marketing but are merely fronts for high executive paychecks. A general rule of thumb is a charity should be giving 80% of the amount they take in back to the mission of their charity. The fact that a CEO makes $500,000 isn’t disqualifying in and of itself. Look at the overall picture of the organization. If that 6 figure salary is 50% of the amount they raise in a year then you should avoid it; however, if that is less than 3% of the organizations gross receipts then it might be fine. Managing an international organization can be expensive; however, there are many groups which do it without milking the profits. Therefore, in closing this post, I will remind you to listen with your heart but give with your mind and if you have trouble separating the two ask for help. We are accepting new clients and are more than willing to help you. Take care.