Jarvis Law Office

The Power of Attorney: Everything You Need to Know for Elder Care Planning

There’s more than just one type of Power of Attorney (POA) available for elder law purposes. They include medical, financial, real estate only, durable, and springing Powers of Attorney. The two most common, though, are durable and springing. The following explains everything you need to know about the two and how they impact your elder care planning.

It’s important to note the differences between a springing POA and a durable POA. While both documents allow your agents – the person or persons you choose to represent you – to handle your financial affairs for you, they take effect at different times. A springing POA gives your agent authority to act on your behalf if you are deemed medically unable to make financial decisions for yourself. Once you’ve recovered and can make your own decisions again, your agent may no longer make financial decisions for you.

A durable POA gives your agents the authority to act on your behalf at the moment the document is signed. The only way your agents may lose that ability is if you draft a new power of attorney and remove their authority. While springing POAs are used in elder care planning, the fact that the power granted to agents in a durable power of attorney does not go away after a certain time makes it a type that is most often used in elder law.

As many seniors have found out, it becomes more difficult to get to the bank and handle financial tasks. Oftentimes, seniors do not want the responsibility of paying bills each month and would rather have someone else handle it. For these reasons, a durable power of attorney makes it easier for adult children or caretakers to handle financial affairs for their parents or elderly loved ones. In other cases, the transition from senior to agent becomes easier if the senior were to suddenly become incapacitated and can no longer make decisions since the agent can seamlessly move into the role of financial caretaker without the need to involve a doctor.

If you have more questions about creating a power of attorney as part of your elder care planning, or if you’d like to have your current power of attorney reviewed to make sure it still fits your needs, please contact our Ohio elder law office at 877-653-3450 to schedule a complimentary initial consultation.

Ensuring Your Power of Attorney is Accepted in Ohio

The Power of Attorney is one of the most important estate planning documents you can have since it allows another person to make financial decisions for you. However, just because you have a Power of Attorney doesn’t mean it will always work when you need it to.

In some cases, a bank or other financial institution will refuse to accept the Power of Attorney on the basis of age; generally, documents over 3 years old can be considered “stale” and unacceptable. 

In Ohio, you need to be especially sure that the attorney you choose to draft your Power of Attorney has the appropriate experience so that the document really allows your agent to do what you want, when you want.  One of the most important things to keep in mind when drafting a Power of Attorney is that, if what you want is not specifically stated in the document, your agent won’t be able to carry out your wishes. In very broad terms, this means “size matters”.  A two or three page document will most likely NOT do what you want it to do.  It may not even meet the minimum requirements in the State at this time.  If you then think about the very specific tasks you may need your agent to perform on your behalf, the “size” of the document may need to reach 8, 9, or 10 pages to encompass all of those potential tasks.

In other occurrences, a Power of Attorney may be challenged in court by a family member or interested party who believes you’ve been coerced into signing the document. In these cases, there are certain steps you can take to make sure your Power of Attorney will hold up to scrutiny.

First, you should consult with an experienced Ohio estate planning and elder law attorney when drafting a Power of Attorney. Your attorney should be apprised of all state laws and regulations regarding the Power of Attorney, giving you the best and most current protections available.

When it comes time to finalize your Power of Attorney, you must sign it in front of two non-related witnesses, and in the presence of a Notary Public (which may be one of the witnesses) who will put a raised seal on the document. This will ensure that your Power of Attorney will not be rejected because it lacks a raised seal.

Finally, if possible, you should make an appointment each year with your estate and elder law attorney to have your Power of Attorney reviewed and updated according to any changes in the law.  You’ll also have a chance to amend your documents if you simply change your mind about who you want to serve as your agent or the scope of the authority you’ve given that person. By creating an updated document every few years, you will make sure there are no challenges to your Power of Attorney on the basis of it being too old.

If you’d like more information about creating a Power of Attorney, or if you’d like to have your existing Power of Attorney reviewed by an experienced Ohio elder law attorney to make sure it meets, not just the statutory requirements, but also your wants and needs please contact our office at 877-653-3450 to schedule a complimentary initial consultation.

Ohio Estate Planning Attorney: What’s the Difference Between an Executor and a Power of Attorney?

One of the many questions we get asked is how long is a Power of Attorney in effect. The answer to that question is complicated in the beginning, but very simple at the end: depending on what type of Power of Attorney you have, it may be in effect as soon as it’s signed or only when it’s determined that you can no longer handle your own financial affairs.  However, both Powers of Attorney cease to be in effect as soon as you pass away, which leads to the next question: what is the difference between a Power of Attorney and an Executor?

Power of Attorney

As noted earlier, a Power of Attorney is a document that allows an Agent to conduct financial affairs for the Principal.  The Agent named as Power of Attorney can conduct real estate, stock, and other financial transactions without the Principal needing to be present. However, as soon as the Principal dies, the Power of Attorney ceases to have any authority over the Principal’s financial affairs. That is the point where the Executor takes over.

Executor

The Executor of an estate is named in the Last Will and Testament and has control over all the assets held in the estate. However, unlike the Power of Attorney, the Executor must be appointed by the Probate Court after a period where any challenges to the appointment, if any, are made. Just as the Power of Attorney does not have the ability to act when the Principal is deceased, the Executor cannot act while they are still alive.

All this being said, it does not mean that one person cannot serve as Power of Attorney and also as the Executor – in fact, most of our clients have the same person acting as their Power of Attorney and Executor. The difference lies in the title of the person and role they are serving at the time – either Power of Attorney when the Principal is alive, or Executor when he or she has passed on.

If you have any questions regarding the roles of a Power of Attorney and an Executor of an Estate, or if you’re starting to think about making an estate plan, please contact us at 1-877-653-3450 to set up a complimentary initial consultation.

Sam Huff Has Plenty of Help in His Later Years

The Washington Post has reported in "Sam Huff needs help making life decisions; there is a fight over who should do it" that former NFL linebacker Sam Huff, who played for the Washington Redskins, has an unusual situation as he suffers from dementia in his later years.

Huff, who is in the Pro Football Hall of Fame, had been living at home with a woman who describes herself as his life-partner, Carolyn Holder. His daughter, Catherine Huff, picked him up to take him to a dentist appointment in March, but she never returned him to his home. Instead, she took Huff home with her and has been taking care of him there.

Now the daughter and the partner are at odds and both want to have responsibility for him. They have both asked the court for guardianship.

For his part, Huff did sign a power of attorney in 2011 that gave authority to the daughter. An initial advanced medical directive gave authority over medical decisions to the partner, but that was later changed to give the authority to the daughter.

Perhaps the most unusual aspect of this case is that no one appears to be trying to change Huff's estate plan in their favor and neither side is accusing the other of trying to do so. That is all too often the case when people fight over who should care for an elderly loved one, but in this case it appears that both sides would just like to take care of Huff.

Reference: Washington Post (Sept. 2, 2016) "Sam Huff needs help making life decisions; there is a fight over who should do it."

Estate Planning Does Not Have to Be a Challenging Task

Taking a step-by-step approach to estate planning can make the process simpler as described recently in the Go Banking Rates article "Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan."

For many people simply following these steps with the help of an estate planning attorney will be enough to create a solid estate plan:

• Get a general durable power of attorney so someone can manage your finances if you are unable to do so.
• Get a power of attorney for health care as well so someone can look out for your medical needs.
• Create a living will so doctors and hospitals know what procedures you want them to use or not to save your life.
• Create a will to decide who will get you possessions and take care of your children.
• Create a living trust so most of your assets do not have to go through probate.
• Write out instructions for your funeral if you wish to do so.
• List all of your accounts and important legal documents so your executor knows what to look for.
• Plan for your pets to be cared for if you have any.
• Make sure someone can access your digital accounts after your pass away.
• Review your plan every year to make sure it is up to date.

An estate planning attorney can guide you through the process of making an estate plan less daunting.

Reference: Go Banking Rates (June 22, 2016) "Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan."

Sumner Redstone's Legal Problems Benefit Someone

The legal actions over Sumner Redstone's competency may be the cause of Viacom's stock prices taking a severe hit but someone is profiting as the New York Post reports in "Sumner Redstone's legal saga has lawyers rolling in cash."

The current fight over Sumner Redstone's competency and his decision to oust Viacom's CEO, Philippe Dauman, from his family's trust and holding company is something of a media circus and a three-way battle between Redstone, Dauman, and Redstone's daughter, Shari Redstone. The battle is not only being waged in court, but also in the media, both in the mainstream press and in the tabloids.

To the surprise of the judge in the case at a recent hearing 22 lawyers stood up to make an appearance. As costly as it is to have a lawyer appear in court, it is almost certain there is an even greater cost in paying all of the lawyers who did not appear in court but who are likely working on the case in the large law firms that represent the parties.

Public relations firms are also profiting from the situation as they have been hired to help control the narrative in the media.

Many of the difficulties presented by this case can be avoided by guidance from an estate planning attorney.

Reference: New York Post (June 11, 2016) "Sumner Redstone's legal saga has lawyers rolling in cash."

Estate Planning Should Be Considered If You're in the Military

If you have a dangerous profession such as the military then estate planning can give you piece of mind as explained in Kiplinger's article about some of the estate planning tools available for members of the military in "Estate Planning for Military Families."

The advice includes:

• Low Cost Life Insurance – Active duty military members are able to purchase low cost term life insurance through the Servicemembers' Group Life Insurance plan.
• Legal Documents – Most on-base legal assistance offices are able to draft basic wills and powers of attorney for members of the military. For some younger people these documents might be enough, but others might consider hiring a civilian estate planning attorney.
• Beneficiary Designations – Military members need to be certain that the beneficiary designations on their IRAs, life insurance and thrift accounts are always up to date.
• Military Pensions – Those who qualify for a military pension can decide to have it continue for a beneficiary after they pass away. This does come at a cost and reduces the amount of retirement pay received for those who choose the option.
• Other Benefits – Surviving spouses can roll payments received from the Servicemembers' Group Life Insurance plan into an IRA. This is a great option for people who do not have an immediate need for the life insurance payment.

Reference: Kiplinger's (May 27, 2016) "Estate Planning for Military Families."

Business Ownership Can Complicate Estate Planning

If you own a business and want to consider its future in your estate plan you need to look at passing on the holdings from one generation to the next and look to the day-to-day operation as Wills, Trusts & Estates Prof Blog recently explained in "Some Things To Keep In Mind When Estate Planning For A Business."

The advice includes:

• A will should state precisely how ownership of the business will be passed to heirs. A power of attorney should also be prepared so that someone can make decisions in case you are incapacitated.
• Any buy-sell agreements should be prepared well in advance and kept up to date. With these agreements the shares of a deceased owner can be purchased by any surviving owners with the proceeds going into the estate of the deceased owner.
• Plans should be in place for who should succeed the current owner in managing the business. Ideally, the person chosen should be made familiar enough with the business operations that he or she is able to step in quickly in the case of an emergency.

An estate planning attorney can help guide you through making sure your business not only survives but is passed on as smoothly as possible.

Reference: Wills, Trusts & Estates Prof Blog (May 13, 2016) "Some Things To Keep In Mind When Estate Planning For A Business."

Naming a Power of Attorney May Be Insufficient

An estate plan generally requires a general durable power of attorney but banks and other financial institutions may refuse to honor general durable powers of attorney as the New York Times reports in "Finding Out Your Power of Attorney Is Powerless."

The issue for the banks is that they fear being held liable if they accept the power of attorney document and it turns out that the person given access to a financial account is acting improperly. When someone shows up with a power of attorney and requests access to an account, the bank does not necessarily have a way to determine that the account holder is actually incapacitated.

Because of this concern, many financial institutions will not accept a standard power of attorney form and instead insist that their own house forms be used.

There are a couple of things you can do about this.

Before you become incapacitated, ask financial institutions that you do business with what their requirements are. If they require their own forms, then fill them out.

An elder law attorney can give guidance if a bank refuses to honor your request.

Reference: New York Times (May 6, 2016) "Finding Out Your Power of Attorney Is Powerless."

Much about Alzheimer's Disease Remains a Mystery

Minor lapses of memory are common and often increase with age but despite the fears of anyone who has been forgetful they are not necessarily a sign of Alzheimer's disease. The early stages of Alzheimer's disease remain a mystery and there is yet to be a cure as explained recently in The New York Times article "What Is Alzheimer's Disease?"

Alzheimer's is diagnosed by assessing memory loss that regularly impedes basic life functions. Beyond that, however, the current scientific knowledge about the disease is somewhat lacking. It is uncertain what causes the disease in the majority of cases.

A genetic marker that has been shown to increase the likelihood of Alzheimer's is only present in a minority of patients. Medications are available to treat Alzheimer's, but they only slow its rate of progress for a little while. There is currently no cure.

Everyone should take action now to get a health care power of attorney and a durable general power of attorney. Should you be unfortunate enough to get Alzheimer's a trusted person can have legal authority to handle your affairs.

Reference: New York Times (April 30, 2016) "What Is Alzheimer's Disease?"