What Do I Do to Obtain a Guardianship?
Independence is important for seniors. No one wants to give that up, until it’s absolutely a necessity. However, could a situation arise where a person has been appointed to be your guardian and no one told you about it? What if that happened in another state? Perhaps a niece wants to “help,” but she’s halfway across the country.
nj.com’s recent article, “Worried someone may want to be your guardian? Here's what you need to know,” first explains how guardianships work.
Guardians are appointed by a judge, for both minors and incapacitated individuals. An application is required to be made to the court in the state and county, where the minor or alleged incapacitated person lives or where his or her property is located. In either situation, once the minor becomes 18, she receives the property. If the incapacitated person returns to full or partial competency, the court (upon application) may restore that person’s rights, which would dismiss or limit the guardianship.
A guardianship can be of the person. This type is limited to making medical or similar decisions on the incapacitated person’s behalf. A guardianship concerning the person's property is another option. A guardianship can also be limited. This means that the guardian is appointed to only make certain decisions, like financial ones. A guardianship can also be plenary, which means the guardian can be appointed to address all issues.
When a guardian of an individual's property is appointed, the property is usually re-titled into the name of the guardian for the benefit of the incapacitated individual. This gives third parties notice of the guardianship.
In New Jersey, prior to an individual being appointed as the guardian of an alleged incapacitated person, that person has to be given notice of the proceedings. That person is also appointed an attorney by the court to advocate for them or to report to the court on their situation. Therefore, in the questions raised above, a senior would be given notice and legal representation. The niece in another state couldn’t petition for a guardianship behind her aunt’s back.
The records of these types of proceedings aren’t open to the public, because of the confidential information in them, like certifications from physicians on the physical and mental condition of the alleged incapacitated person.
However, information on the name of the guardian for the incapacitated person should be available, so creditors and other third parties can know who to rely on, when providing services to the incapacitated person.
Reference: nj.com (August 24, 2018) “Worried someone may want to be your guardian? Here's what you need to know”
Trump Wants to Revise 401(k) Rules
President Trump signed an executive order, instructing the Labor Department to relax rules on small-business Multiple-Employer Retirement plans (MEPs) and telling the Treasury Department to look at Required Minimum Distributions (RMDs) from 401(k)s and IRAs.
Think Advisor’s article, “Trump Orders Review of 401(k) Withdrawal Rules, New Rules for MEPs,” reports that Trump’s executive order is designed “to extend the incredible benefits of retirement savings accounts, such a big thing, to American workers employed at small businesses all across our nation,” Trump said.
Trump went on to say that this would provide “retirement security to countless American workers and their families. We believe all Americans should be able to retire with the confidence, dignity and economic security that they want.”
Trump explained at the signing that the “complexity of current federal regulations makes it extremely difficult for small businesses to afford retirement savings accounts for their great employees. While large companies can afford to deal with these burdensome regulations, small companies just can’t handle it.”
“This means that 50% of Americans employed at small businesses with fewer than 100 employees, don’t have access to 401(k)s or other retirement plans,” he said.
For this reason, Trump said he’s lowering the costs of retirement plans, so they can become an affordable option for businesses of all sizes. “Small businesses”, Trump said, “will no longer be at a competitive disadvantage and small business workers will now be treated more fairly and have more choices.”
Trump said his executive order decreases the “regulatory barriers,” so small businesses are able to create “low-cost association retirement plans,” also called multiple employer plans, or MEPs. The IRS requires savers to begin taking RMDs, calculated on the basis of life expectancy, at age 70½.
Reference: Think Advisor (August 31, 2018) “Trump Orders Review of 401(k) Withdrawal Rules, New Rules for MEPs”
The New World of VA Pension Planning – What You Need to Know
On September 18th, the Veterans Administration announced new regulations and changes to the Aid & Attendance program. Previously there had been no lookback for Veterans and their families when one needed help to pay for long term medical needs and care expenses. There were no penalties for gifting nor was there a lookback period for gifts.
What this means is that up until October 17, 2018, there will be NO lookback for gifts and the old rules will be in effect. Veterans and their families had to prove that their care was above their income level and in most cases, and as long as their service dates qualified, they were approved for the Aid & Attendance program. One was able to transfer any amount of money and not be penalized (unlike with Medicaid). Effective October 17, 2018, in order to qualify for benefits the VA is imposing a three-year lookback period with penalties that can exceed the three-year mark.
Hiring an attorney is important because the qualification process can be complicated (and about to get more complicated) and there are legal strategies that can help you qualify faster. We urge you to reach out to us before that date, so that we can help get you qualified for the Aid & Attendance benefit under the previous guidelines. If we are able to get a Veteran or their spouse qualified now without a penalty, why wait?
You can call to make an appointment with Fiona at 609-580-1044 to discuss your next steps and if you cannot act now, there will still be ways to get you or a loved one qualified. It will just take longer. The sooner we start, the sooner we can get you qualified.
What Can I Do to Make My Estate Plan a Legacy Plan?
“The reality is that your traditional estate plan will result in a 70% chance that your wealth will be lost by the second generation, and a 90% chance that your wealth will be lost by the third generation.”
You may have a traditional estate plan that includes a last will and testament, powers of attorney, a health care proxy, living will and perhaps a revocable living trust. You may even have an irrevocable life insurance trust that owns your life insurance policies to avoid potential estate taxes and to protect the policy proceeds from creditors. Finally, you’re considering transferring a minority share of your business to a family trust. This will move assets out of your estate, mitigate estate taxes and protect the assets from creditors. However, you have some questions about whether this traditional estate planning will be successful.
Forbes’ recent article, “How To Turn Your Estate Plan Into A Legacy Plan,” says that perhaps you’ve also heard that legacy planning is the solution to your problem. However, you are worried about the expense. If you create a legacy plan, does it mean you’ve wasted time and money? No, it doesn’t. The documents you’ve already prepared for estate planning, can most likely be used and incorporated into a more effective legacy plan. Let’s look at how to turn an estate plan into a legacy plan.
Form A Legacy Team. This effort takes a team. You need a team of professional advisors working together to move you towards success. A legacy team will typically begin with three main areas of expertise: legal (estate planning attorney), tax (accountant) and wealth/financial planning (wealth advisor). From there, the legacy team may expand, based on your needs and circumstances. Your team’s makeup will depend on you and your family’s specific needs and circumstances.
Get A Legacy Mindset. Think “process” versus “plan.” Traditional estate planning is often seen as complete, once estate planning documents have been prepared and signed. However, the reality is that after you’ve created legal entities and a structure for your estate and/or legacy, you’re just at the start of the process. The legacy plan is a recipe for your success and the framework through which your legacy is going to thrive and grow.
Educate Yourself on What You’ve Already Created. With your legacy team in place and with your legacy mindset, understand what your existing estate plan does and doesn’t do. Review your estate plan and determine if it distinguishes between legacy and non-legacy assets (which almost always should be handled differently on your death). You also need to plan for your life and how to build the legacy you ultimately want to leave behind through specific assets in your estate.
Design and Execute the Plan. Your legacy plan is about establishing and committing to a process that lets you and your legacy team remain proactive and intentional in implementing your legacy plan. The right process and legacy team will ensure that your plan evolves with you, and they will move you forward to achieve your greatest legacy and success.
Reference: Forbes (August 22, 2018) “How To Turn Your Estate Plan Into A Legacy Plan”
What Does Senator McCain’s Estate Look Like?
The late Senator John McCain of Arizona appears to have taken care of his estate planning.
The money is all his wife Cindy’s, and it stays Cindy’s.
Wealth Advisor reports in its recent article, “Tradition, Money, Dynasty: Can Meghan Keep the McCain Legacy Alive?” that there are several family trusts passing Cindy’s family property down from her parents to the McCain descendants. Those trusts hold the houses, her family beer business and various assets that are worth close to $200 million.
McCain’s side of the family legacy is much less complicated. He looks to have amassed $15 million on his own or in marital property.
It will be a rather small inheritance for his heirs, compared to what they’ll inherit from Cindy. However, the big issue may be identifying those heirs who will take up his social agenda.
The four McCain children are going to be as comfortable as they need or want to be. It’s more than likely that they’re sharing in the income from their grandmother’s trust already, and one day they’ll also inherit Cindy’s wealth.
With that money in the future, the Senator’s kids are free to do whatever they want with their lives. Meghan is a television personality and a professional “next-generation Republican.” She’s female, she’s educated, telegenic and just like her father, she’s not afraid to claim a “maverick” position every once in a while.
If you’re curious about a trust for your family, talk to an experienced estate planning attorney for more information.
Reference: Wealth Advisor (August 27, 2018) “Tradition, Money, Dynasty: Can Meghan Keep the McCain Legacy Alive?”
Do I Have to Pay My Spouse’s Loan When He Dies?
It’s not uncommon for a senior to suddenly find himself the executor of his spouse’s will and have to face debt that was not taken out together.
Let’s say that you’re 67, and your husband passes away suddenly. What if he decided last year that he wanted to explore the open road and took out a $50,000 loan, in his name only, to buy a Class A recreational vehicle (RV) with beechwood cabinets and custom sea glass interiors that sleeps five. You didn’t want it and you can’t afford it. What do you do?
Is the surviving spouse responsible for paying the loan, or can she surrender this behemoth to the bank?
nj.com’s recent article, “My husband died. Must I pay his loan?” explains that whether a deceased spouse's debt becomes the responsibility of the surviving spouse, depends on several factors.
There’s usually spousal liability for debts incurred by the non-debtor spouse only for necessary goods and services, like medical expenses. Therefore, a Class A RV with beechwood cabinets and custom sea glass interiors that sleeps five hardly qualifies. However, the surviving spouse’s options depend on the contracts executed by the late husband and the discussions that his widow is now having with the bank.
Any assets in the name of decedent—like the Class A RV with beechwood cabinets, etc.—or paid into the deceased spouse's estate, would have to be liquidated and used to pay creditors in the order of priority, as determined by state statute
In New Jersey, the law says the funeral director must be paid before any other creditor, followed in order of priority by the other costs of administering the estate, like the court and attorney fees, the office of the public guardian for elderly adults, taxes, medical expenses, judgments and then all other claims.
Any life insurance or retirement funds that are paid directly to a beneficiary, and not paid to the estate of the decedent, don’t have to be used to pay the decedent's debts and expenses, unless the beneficiary is required to pay the debt, as a result of being a spouse obligated to pay for necessaries, a co-signer or obligor or for similar reasons.
However, if the estate becomes insolvent and there’s insufficient funds to pay all outstanding claims, claims within the same priority level must be paid pro rata.
Talk with an experienced estate planning attorney about the specifics of your situation.
Reference: nj.com (August 20, 2018) “My husband died. Must I pay his loan?”
The Keys to Financial Planning for Single Parents
Whether they are single by choice, divorce or the death of a spouse, single parents typically don’t have the security of a second income or a safety net. They need a financial plan to prepare for unanticipated events. A plan will also help with care for the children and retirement.
CNBC’s recent article, “Five financial essentials for single parents,” says that when single parents try to satisfy their kids, it can lead to a severe unintended consequence: placing their children ahead of their own retirement needs.
In addition to naming a guardian in a will, there are five other critical financial moves.
- Set up an emergency cushion. A solid emergency fund is the initial step. You should have three to nine months' expenses in that fund. Don’t forget to add whatever costs the kids have each month, like sports and activity fees, school lunches, clothing and school supplies.
- Check on the right amount of insurance. Life insurance can help your family cope financially without your income. Your income could be lost through illness, so consider disability insurance. If you own a home, purchase flood insurance.
- Create definitive savings goals. You most likely have things that you'd like to do for your family, such as purchase a home, pay for college or plan a special vacation. Each of these will be on a different timeline. Divide this into near-, medium-, and long-term savings goals. Your near-term goals will happen within five years. The way in which you invest these three silos of money is based upon your unique time horizon. If you have decades before you retire or need to pay tuition for a newborn, you can take on more risk. Examine your allocation among these accounts and review them once a year, to see if the amounts you're putting in each—and the investment strategies—still match your goals.
- Have a set savings percentage. There's no set number that works for everyone. There are recommendations to save at least 6% or 9% of your income, but it’s not always possible. If you can only save $30 a month, do it and be glad! Just creating a positive habit of saving is important. Even if you save as little $10 a month, do it with the notion that you'll increase the amount, when your finances permit. A good rule of thumb is to put away 10% of your gross, not take-home, pay and as you get raises, increase your savings rate. Developing that disciplined habit of saving can help you accomplish many of your financial goals.
- Make your retirement plan. With your savings and Social Security, achieving a 50% replacement of income may be enough for people with modest salaries. However, a person who earns $100,000 will be more likely to want 85 to 90% of income. Therefore, they’ll have to save more. In sum, the more you have, the more you’ll need to save to be able to spend the same amount of money and live the same way in retirement.
If your employer offers a workplace retirement plan, contribute in order to get the match. After all, it's free money! If you don’t have a workplace plan, set up an individual retirement account (IRA) and make the deposits automatic.
Reference: CNBC (August 20, 2018) “Five financial essentials for single parents”
Queen of Soul Didn’t Have a Will
CBS.com says in its article, “Report: Aretha Franklin left no will,” that Franklin’s four sons filed a document that designate themselves as interested parties in her estate.
A document that was said to have been filed with the Oakland County Probate Court in Michigan and signed by her son Kecalf and her estate attorney David Bennett noted the absence of a will.
"The decedent died intestate and after exercising reasonable diligence, I am unaware of any unrevoked testamentary instrument relating to property located in this state as defined" under the law, the document said, according to the Detroit Free Press.
Because she died intestate or without a will, Franklin's finances will become public. Her niece, Sabrina Owens, has asked Judge Jennifer Callaghan to be the personal representative of the estate.
Don Wilson, Aretha's entertainment lawyer, commented to the Detroit Free Press that he repeatedly suggested that she create a trust. "I was after her for a number of years to do a trust," he said. "It would have expedited things and kept them out of probate and kept things private."
The attorney said he would have helped Aretha manage her holdings in music publishing and copyright issues for estate planning. Wilson added that at this point, it's impossible to estimate the value on her song catalog. However, he also said that she retained ownership of her original compositions.
In her home state of Michigan, the assets of a deceased person who was unmarried are divided equally among children. However, creditors or extended family members could contest the estate.
Franklin died at home in Detroit in mid-August.
Her fans gathered to view her body in Detroit at the Charles H. Wright Museum of African American History last week.
Reference: CBS.com (August 22, 2018) “Report: Aretha Franklin left no will”
How Big Was Aretha Franklin’s Estate?
It’s become a common scenario: a star who worked past their traditional retirement age and was beloved by generations dies with career earnings that wouldn’t even pay a corporate CEO salary for one year.
Wealth Advisor says in its new article, “Aretha Franklin’s Estate Almost Criminally Undervalued Even At $80 Million,” that description now fits Aretha Franklin, the Queen of Soul.
She sold 75 million records and is credited as a songwriter on hundreds of albums by other artists. However, even the most generous estimates of her career earnings are no more than $80 million.
Compare her to Taylor Swift. She started at about the same age, has been working one fifth as long and the same calculations say she’s worth more than $300 million.
The mega stars in Aretha’s imperial period didn’t earn as much as they do today. Management was often aggressive and took a huge chunk of every dollar earned from the artists’ record sales, concerts, merchandising, and media appearances.
Aretha also didn’t do herself any favors, by allowing her husband to manage her early career. When they divorced, he took a lot of her lifetime earnings with him. A raw deal or not, it was the way the industry worked at the time. As a result, paying alimony meant she had to keep working for her ex.
That may be why Taylor Swift hasn’t gotten married. Despite a finely crafted prenuptial agreement and trusts to protect her money, a wrong decision could cost her hundreds of millions of dollars.
The music industry has changed dramatically. Traditional revenue sources never really grew much bigger than they were in the 1960s. Some, like selling the actual music, tanked and have yet to revive. Today’s music icons, like Taylor Swift, thrive because they manage their own tours and take in ticket income rather than record sales. Many own their own publishing outlets, and that maximizes their percentage of every song they sell. That’s not how it worked in Aretha’s day.
However, Aretha died with money in the bank. Her children will inherit considerable sums. She most likely gave huge amounts to charity and did it in the most tax-efficient way her advisers could find.
For Aretha, her record sales will spike and unreleased material will get monetized. Her image, name, and authorization will generate merchandising and royalty income. Her brand will also continue to live on forever.
Reference: Wealth Advisor (August 20, 2018) “Aretha Franklin’s Estate Almost Criminally Undervalued Even At $80 Million”
How to Cope with an Alzheimer’s Diagnosis
“Imagine your doctor telling you have Alzheimer’s disease or some other type of dementia. Then, imagine being told, ‘I’m sorry, there’s nothing we can do. You might want to start getting your affairs in order."
Those newly diagnosed with Alzheimer’s frequently say they felt overcome by hopelessness. The Washington Post reports, in “Learning To Live Well With Dementia,” about authors Laura Gitlin and Nancy Hodgson’s new book, “Better Living With Dementia,” which says that it’s time for this “cycle of despair” to be broken. Gitlin is the Dean of the College of Nursing and Health Professions at Drexel University and Chair of the Department of Health and Human Services Advisory Council on Alzheimer’s Research, Care and Human Services. Hodgson is the Anthony Buividas endowed term chair in gerontology at the University of Pennsylvania.
These leading experts on care for people with cognitive impairment, say that while there’s no cure for Alzheimer’s, there are many things that can be done to make life better for people with dementia and their caregivers.
At a minimum, people newly diagnosed with dementia should consult with the Alzheimer’s Association, the Lewy Body Dementia Association, the Association for Frontotemporal Degeneration and the government’s website, alzheimers.gov. These are all great sources of information and potential assistance. Individuals and families should also get referrals to elder law attorneys, financial planners, adult day centers, respite services, caregiver support services and other resources.
About 70% of people with Alzheimer’s and other types of dementia live at home. Few professionals ask about patients’ living conditions, even though these environments play a major role in shaping people’s safety and well-being. It’s not uncommon for professionals to fail to let patients know what to expect as dementia progresses. This can fosters isolation, which worsens their sense of despair.
Even small steps could help improve quality of life. For example, give focused attention to the home setting itself. Hire an occupational therapist, ideally with expertise in dementia, to do a home assessment and recommend modifications. It’s also important to know what to expect. Individuals with dementia and their caregivers will find their needs changing as their illness progresses.
Initially, the most critical need may be getting a reliable diagnosis and understanding more about the type of dementia identified by your physician. A new study by Johns Hopkins University reports that 60% of people with dementia haven’t been diagnosed or aren’t aware of their diagnosis.
Further, depression and anxiety may need to be addressed, because people can struggle with the reality of a diagnosis, withdraw from work or social activities and worry about the future. Looking for ways to keep people engaged with meaningful activities can become a challenge.
In the final stage, severe dementia, people need sensory stimulation, like enjoyable music or a fragrant bouquet of flowers. Addressing distress, discomfort and pain are the big care challenges.
Throughout every stage of this illness, “it’s important to let people with dementia know that they belong and surround them with a feeling of warmth and affection,” Hodgson said.
Reference: The Washington Post (August 9, 2018) “Learning To Live Well With Dementia”