Kansas and Missouri Estate Planning

How Do I Initiate Tough End-of Life Discussions?

When it comes to end-of-life issues, you cannot afford to put off conversations with your family.

Granted, death and dying are not fun topics.

Most people would choose to talk about anything else.

Perhaps you are one of those people.

Nevertheless, sometimes we have to do what we do not want to do.

Why?

Because it is worth it.

Still, it is easier said than done.

But it can be done if you make it a priority, according to a recent post on the website seniorhomes.com titled “10 Steps to Communicate Your End-of-Life Wishes.”

Start by planning.

You cannot communicate your wishes if you do not know what they are.

Work with an experienced estate planning attorney to get a durable general power of attorney and an advance health care directive.

What do these do?

A general durable power of attorney gives a trusted friend or family member the ability to make medical decisions on your behalf.

An advance health care directive outlines your treatment and health care preferences in the event you are incapacitated.

Be clear.

Do not leave room for error.

Be sure your wishes are legally documented and make a point to explain them as soon (and as fully) as possible.

Find a time to share your wishes.

You do not want to put this discussion off for later.

Although you could have this discussion at any time, some situations naturally lend themselves to this.

What events are these?

• Birth of a child.
• Marriage
• Death or serious illness of a loved one.
• Retirement
• Anniversaries
• Holidays

You can even ask your estate planning attorney for a special meeting.

Revisit the discussion.

Your family situation may change.

Others may raise points you had not considered.

If this occurs, you can always update your plan.

Do not ambush your loved ones.

Before beginning this discussion, inform your loved ones of the topic.

Asking permission and providing some advance warning can reduce tensions.

Have end goals in mind.

Your goal for yourself is likely to have your wishes honored.

Your goal your family is probably to give them a confidence and a peace about the choices they may need to make on your behalf in the future.

Choose an appropriate location.

You will want it to be a place where you can focus on the task at hand.

It should also be a private and comfortable place.

Do not only talk.

Your loved ones may have things they want to say.

Let them know you value them and their thoughts.

Listening is the best way to do this.

Know your audience.

Not all people process information the same way.

Tailor your conversation to the audience.

Pace yourself.

You are leading this conversation.

You are responsible for the cadence of the conversation.

By implementing these suggestions, you may have a more pleasant conversation.

Do not delay.

You cannot predict what will happen tomorrow.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: seniorhomes.com (December 22, 2016) “10 Steps to Communicate Your End-of-Life Wishes”

Why is Estate Planning Necessary?

Proper estate planning can protect you and your loved ones.

You will die.

You cannot change this.

So, what can you control?

You can control what happens when you die ... or if you become incapacitated.

How?

Estate planning is the answer, according to a recent SF Gate article titled “Congrats on Your New Baby! Now It’s Time for an Estate Plan.”

What can a properly prepared and executed estate plan do?

Provide backup parents.

Have kids?

If so, you probably have a specific way you want them reared.

Through your estate plan, you can designate who will rear your children.

You can even divide duties.

Managing finances for your child would be the responsibility of the trustee over their inheritance.

Rearing your child would be the role of their guardian (i.e., backup parent).

Guide difficult decisions.

If you are incapacitated, you cannot make your own decisions.

If not you, then who?

You can designate an individual to make your medical and financial decision on your behalf.

Medical decisions are stressful.

Giving clear direction in an Advance Health Care Directive would be beneficial and instruct your agents regarding your intentions.

Distribute your possessions.

Whether it is your high value items or sentimental keepsakes, a proper estate plan can distribute these according to your wishes rather than the default guidelines in your state.

This gives you control over who gets what.

You also will save your family time, money and stress.

By including an explanation, you can even avoid hurt feelings.

When it comes to estate planning, the stakes are high.

Do not delay.

Do not settle for shoddy work or even try your hand at a little DIY.

Work with an experienced estate planning attorney.

This will make all the difference.

So, how do you find an "experienced" estate planning attorney?

First, ask around. Friends, family and other professional advisors are trustworthy sources.

Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").

Third, either way, verify! Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.

How?

Two helpful online resources are just a mouse click away to assist with your due diligence:  Avvo.com and Lawyers.com.

Check any Avvo ratings, client ratings/testimonials and attorney endorsements on Avvo.com and any "peer ratings" by judges/other attorneys and any client ratings/testimonials on Lawyers.com.

In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: SF Gate (December 22, 2016) “Congrats on Your New Baby! Now It’s Time for an Estate Plan”

When Might I Need a Power of Attorney?

A durable general power of attorney will help your financial and health care affairs run smoothly ... even when you cannot manage them yourself.

They say in life the only thing you can expect is the unexpected.

This is why advanced planning is so important.

Especially when it comes to estate planning, according to an article in The Villager titled “Power of attorney protects loved ones.”

When you hear estate planning, perhaps you think only of a will.

Wrong.

Estate planning involves so much more than distributing an inheritance.

Every estate plan should include a power of attorney (POA).

Why?

This legal tool allows you to select an individual you trust to make decisions and manage your affairs when you are living but incapacitated.

Let me be blunt.

You never know if or when an accident or illness could take away your mental capacity.

I have seen it happen.

If you do not have a legal durable power of attorney for medical decisions and one for financial decisions, then your family will be powerless to act just when you need their help most.

In fact, a lengthy and costly court process would ensue for them to be able to step up and help.

Under such circumstances, the person given the authority will be designated by the court—not by you.

This could be very bad.

What durable power of attorney might you need?

It depends on your situation.

A power of attorney can be "springing" and take effect only when your incapacity is actually proven, or it can be current and take effect when you sign it. Also, the power given can be "general" over broad matters, or it can be "special" and limited to specific matters. 

How long do you want the power to last? Indefinitely or for a limited time period? Do you want the power to continue even after you are incapacitated?

 

Although in many ways, a power of attorney are straightforward, you will want an experienced estate planning attorney to create it with you to be sure all the nuances of the document accomplish your desired goal.

So, how do you find an "experienced" estate planning attorney?

First, ask around. Friends, family and other professional advisors are trustworthy sources.

Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").

Third, either way, verify! Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.

How?

Two helpful online resources are just a mouse click away to assist with your due diligence:  Avvo.com and Lawyers.com.

Check any Avvo ratings, client ratings/testimonials and attorney endorsements on Avvo.com and any "peer ratings" by judges/other attorneys and any client ratings/testimonials on Lawyers.com.

In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: The Villager (December 14, 2016) “Power of attorney protects loved ones”

Why Should "Estate" Planning Include "Incapacity" Planning?

Estate planning is for more than just passing on your assets after you die.

Life is full of unexpected events.

What if one of these events leaves you unable to make your own decisions?

Will you be prepared?

If you have an estate plan, you may.

Or you may not.

How do you know?

According to a Barron article titled “Three End-of-Life Estate Plan Lessons,” you must do three key things when planning for your incapacity and before you sign your estate planning legal documents.

What are they?

1. Choose your surrogates wisely.

These individuals will be making your medical and financial decisions when you can no longer do so.

They should be trustworthy, responsible and capable.

If need be, you can divide the health care and financial decisions between two surrogates based off their strengths.

2. Talk with your surrogates about your decision immediately.

To motivate our clients to communicate their wishes to their appointed agents, we automatically include the following statement for them to initial within the "Advance Health Care Directive" each signs: I have discussed these health care matters with my family members and my agents, and they understand my wishes.

Then, once signed, we scan the original Advance Health Care Directive and email it to the client with instructions to forward the same to each of his or her physicians and all appointed agents.

And without delay.

Why?

You will want to provide direction and explain your reasoning before you are unable to do so.

Your loved ones and appointed agents will feel more prepared and will be more confident in their decisions on your behalf.

3. Leave life-or-death issues to those strong enough to handle the weight.

Choosing whether to take a loved one off of life support is emotionally taxing.

Not everyone is able to bear such a burden.

Be sure to select someone who is both capable and willing to make this difficult choice.

As you make these decisions, work with an experienced estate planning attorney.

Why?

He or she will be able to give wise council and create a plan to accomplish your wishes.

So, how do you find an "experienced" estate planning attorney?

First, ask around. Friends, family and other professional advisors are trustworthy sources.

Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").

Third, either way, verify! Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.

How?

Two helpful online resources are just a mouse click away to assist with your due diligence:  Avvo.com and Lawyers.com.

Check any Avvo ratings, client ratings/testimonials and attorney endorsements on Avvo.com and any "peer ratings" by judges/other attorneys and any client ratings/testimonials on Lawyers.com.

In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Barron’s (November 8, 2016) “Three End-of-Life Estate Plan Lessons”

What do I Need to Know About the Differences between Powers of Attorney?

Choosing the correct power of attorney is vital to meeting your estate planning wishes.

So, you are looking into getting a power of attorney.

That is a very smart move.

Congratulations.

A power of attorney is fundamental to a solid estate plan.

If you want your wishes to be followed, you will need to understand your power of attorney, according to a recent NJ 101.5 post titled “Understanding power of attorney documents.”

Your two basic power of attorney choices are a power of attorney (POA) and a durable power of attorney (DPOA).

Besides the word “durable,” what are the differences between these two documents?

Power of Attorney (POA)

This gives the attorney in fact or agent (usually a family member of trusted friend) the ability to act for you in regard to legal or financial matters.

A power of attorney does not have to grant broad, sweeping authority; instead, you can limit the power as much as you wish.

When would this be particularly useful?

If you need to grant an agent authority in a specific situation, a power of attorney would be useful.

Say you need have arrange to sell your 1969 Camero SS this Saturday, but you have tickets to the K-State Wildcat football game.

In that event, you could give your cousin Vinny POA with authority just to complete the sale on your behalf ... while you go to the game.

One thing to note is an agent under a plain vanilla POA cannot act for you should you became incapacitated.

Durable Power of Attorney (DPOA)

On the other hand, if you need an agent to assume responsibility when you are incapacitated, you will need a durable power of attorney.

This can be especially important for those who would like help from family members on the daily finances as they age and slowly lose capacity.

In case of emergency, having a durable power of attorney in place will be vital.

Otherwise, petitioning the court will be the only way your loved ones would be able to support you and care for your affairs.

This could be expensive.

Both of these powers of attorneys can be revoked at any time while you are still in control of your mental faculties.

If you die while a POA or A DPOA are in effect, those powers will stop immediately.

When do the powers begin?

An agent will immediately have the authority to act on your behalf once the documents are signed, unless you use a “springing” power of attorney.

What is this?

A “springing” power of attorney defines a specific event or circumstances as the catalyst for the power of attorney.

When might this be useful?

A good time to use a “springing” power of attorney is the attorney in fact is not your spouse or close trusted family member.

When creating your estate plan, you will also need a separate durable power of attorney for health care decisons with a health care treatment directive to name an agent for medical decisions and provide instructions regarding your wishes.

If you have more questions about the best power of attorney for your needs, speak with an experienced estate planning attorney.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: NJ 101.5 (August 22, 2016) “Understanding power of attorney documents”

What Should I Do if a Bank Will Not Take My Power of Attorney?

If you are told your power of attorney is not valid at an institution, you will need to get to work.

Your power of attorney is important.

Whether a health care power of attorney for medical decisions or a durable power of attorney granting broad financial authority, it is true to its name: powerful.

And with great power comes great responsibility. [Yes, a nod to "Spiderman" there.]

This power causes many banks to reject some powers of attorney.

Why?

They do not want to be liable for any losses to a customer should this fundamental legal document be abused.

Understandable.

I mean, what is in it for them? Just potential litigation.

According to The Wall Street Journal article titled “When the Power of Attorney Lacks Power,” you are not alone if you face barriers to exercising a valid power of attorney.

Fortunately, the article also provides guidance on how to avoid potential issues.

Determine what power of attorney you created.

Is it a "springing" power of attorney?

A typical durable power of attorney is effective immediately upon its signing.

In contrast, a springing power of attorney will requires proof that the "principal" (i.e., you) is incapacitated before the any authority is granted.

The distinction will require different actions to be taken.

A springing power of attorney will require more legwork because of the incapacity requirement.

To use the springing power, the individual who has been granted power may need to obtain a signed statement from at least one physician confirming that the principal is incapacitated.

Only then will the appointed individual have the right to exercise the power of attorney.

It should be noted that this is easier said than done due to medical privacy laws.

Have you encountered HIPAA?

Meet with the management team.

Advanced action is always the best action.

Introducing the person with your power of attorney to the managers of the bank or financial institution (before the power of attorney is needed) may help ease their qualms.

These financial institutions may ask you to sign a separate powers of attorney specific to the institution and drafted by its lawyer.

Do not be quick to sign this as it may require you to waive rights to sue the institution!

I recommend reading the fine print and asking your estate planning attorney to read it over as well.

If the bank refuses your power of attorney document, go to another branch or seek out the supervisor.

Prepare to defend the document.

Depending on the institution, you may be asked to prove the power of attorney is authentic.

How might you do this?

You may need to acquire a medallion signature guarantee from a bank with your signature on file.

Another means of validation is through a notarized affidavit affirming the validity of the document.

Know your state laws.

Some states require banks and other institutions to accept a power of attorney under specific circumstances.

If they do not, the refusing institution may be required to pay your legal fees associated with the case.

The institutions do have a legal right to refuse use of a power of attorney, if they report suspected abuse to authorities or have knowledge of another party reporting exploitation.

These steps will give you a place to start if you are faced with a stonewalling bank.

When it comes to your power of attorney, find an experienced estate planning attorney to create documents you can trust.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Wall Street Journal (June 12, 2016) “When the Power of Attorney Lacks Power”

What is Going on with the Sumner Redstone Trial?

It just keeps getting crazier.

Have you heard that media mogul Sumner Redstone is going to trial on May 6 over ex-girlfriend Manuela Herzer's claim that he is mentally incompetent?

Yep, it is true.

According to a recent Bloomberg article titled "Redstone Faces Competency Trial amid Fight over Media Empire," this may intensify the competition for control of his $3 billion holdings in Viacom Inc. and CBS Corp.

Los Angeles probate judge David Cowan asked whether it was wise for the 92-year-old to name Viacom CEO Phillipe Dauman as his agent in charge of his health care decisions rather than a family member.

Judge Cowan, who will decide the case without a jury, said he is not necessarily confident things "are all patched up" between Sumner and his daughter Shari Redstone.

For her part, Herzer contends that Redstone is incapacitated and manipulated by those around him.

But it gets more complicated.

At least one shareholder has sued the boards of Viacom and CBS, accusing them of wasting millions of dollars paying Redstone when he was unfit to take an active role in the businesses.

As you may recall, Redstone only stepped down as chairman of both companies last month, days after he was examined by a psychiatrist designated by Herzer as part of her court case.

So what hangs in the balance?

Control of Redstone's 80% voting stakes in Viacom and CBS will pass to a family trust if he becomes incapacitated or dies.

Shari Redstone and Dauman are two of the seven members of that trust.

Redstone's Viacom and CBS holdings are exempt from the lawsuit, as the family trust that will take control was established long ago.

Herzer, who describes herself as Redstone's longtime companion and caretaker, alleges he was not capable of making his own decisions when he removed her from his advance health care directive and evicted her from his mansion last fall.

In response, Redstone's lawyers claim Herzer's ulterior motive is to contest her removal from his will.

She apparently stood to inherit $50 million ... plus Redstone's $20 million home before she was cut out of his estate plan.

While I do not fancy rubbernecking at train wrecks, when the train wrecks are estate feuds there can be lessons learned. 

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Bloomberg (February 29, 2016) "Redstone Faces Competency Trial Amid Fight Over Media Empire"

How do I Plan for a Loved One's Incapacity?

With the holidays recently in the rear view mirror, were any of your loved ones perhaps a little less sharp physically or mentally than the last time you saw them?

If yes, then what actions should you (and they) be taking sooner rather than later?

That is the question.

This was the subject of a recent article in the Huffington Post titled "Legal Issues for Concerned Family and Friends of a Possibly Incapacitated Individual."

The article notes that "functional capacity" is contextual.

In other words, the challenges an individual faces in daily living and how well they are navigate them are sometimes hard to pin down.

Unfortunately, the legal terminology is frequently vague and inconsistent. Terms like "incompetent," "unsound mind," and "incapacity" are tossed about interchangeably.

State statutes typically define an "incapacitated person" as someone who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for his or her own physical health or to manage his or her own financial affairs.

The courts will often require expert testimony and reports as to the individual's physical or mental state before rendering a judgment.

Many states rely upon a required, standardized "Certificate of Medical Examination" form for submission to a court. This form contains the specific statutory "magic language" definition of incapacity.

Oftentimes, this form will have check boxes for the physician and a space for his or her comments.

Against this backdrop, a progressive and gradual onset of dementia may be hard for both the individual and family members to recognize and appropriately address.

Accordingly, there are a variety of common tasks that have significant personal and legal implications.

The original article recommends that you evaluate whether your loved one can consistently and appropriately undertake the following tasks (although this is not an exhaustive list and these tasks are not listed in any particular order of priority):

• Administer her or his own medications;
• Engage in daily activities like personal hygiene, bathing and dressing;
• Attend to shopping, food preparation, self-feeding and housekeeping;
• Safely drive a motor vehicle;
• Manage their finances and pay household expenses;
• Make appropriate decisions concerning marriage or intimate relationships;
• Keep his or her home clean;
• Collect and respond to mail or other communications;
• Recognize and avoid common scams and frauds; and
• Understand the need for and consent to medical and dental treatment.

If help is needed with any of these tasks, start small.

There may be assistive devices, accommodations and part-time caregivers that might be less restrictive alternatives than legal guardianship and institutional living.

[For example, if your loved one has a hard time remembering "when" to take his or her medication, then consider using the VibraLITE 8 vibrating watch. I use mine because I cannot hear alarm reminders worth a hoot without my hearing aids - just ask Gretchen or my girls.]

Legally, an individual is presumed to be sane and have legal capacity.

As a result, the family may have a hard time stepping in when an individual is stubbornly insistent on keeping the status quo despite signs that some changes are needed.

Make sure, well in advance, that you and your loved ones have created durable powers of attorney and advance health care directives so a trusted person may act when necessary.

Finally, create an up-to-date will and trust.

Why?

There has been a sea change in the estate tax laws over the past four years and your planning may be simplified now.

An experienced estate planning attorney can help you take these very basic steps to protect your person dignity and avoid burdening your family and friends in the future with probate court entanglements.

So, how do you find an "experienced" estate planning attorney?

First, ask around. Friends, family and other professional advisors are trustworthy sources.

Second, conduct an "organic" search on "Google" for "estate planning" near you (e.g., "Estate Planning Anytown MoKan").

Third, either way, verify. Check out the education, experience, ratings and client reviews of any attorney before you contact him or her.

How?

There are two helpful resources just a mouse click away to assist with your due diligence:  Avvo.com and Lawyers.com.

Check any Avvo ratings, client ratings/testimonials and attorney endorsements on Avvo.com and any "peer ratings" by judges/other attorneys and any client ratings/testimonials on Lawyers.com.

In fact, I use both of these services to thoroughly vett attorneys before referring members of our "client" family for legal help in other areas of law or for matters in jurisdictions outside Kansas or Missouri.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Huffington Post (December 22, 2015) "Legal Issues for Concerned Family and Friends of a Possibly Incapacitated Individual"