Tuesday, July 31, 2012

When sending your Child to College a Power of Attorney is a Must Have!

If you have a young adult (18 or older) or you are a young adult, it is important to have powers of attorney in place.  Parents are often surprised that they do not automatically have access to their child’s healthcare information or other college records.  If your child is in an accident, you do not want to go through red tape to address their health needs.  But, that is what will happen if the right documents are not in place.  
As a young adult, you want to have someone you trust and who cares about you available to handle your health issues and other affairs if you are in a car accident, have a serious sports injury or experience some other traumatic event.  Your medical information can only be shared with the person you designate.  Prepare for the unexpected to assure the road to recovery does not take a detour. 
Here are some answers to your important questions. 
When does an agent sign the power of attorney? The agent does not have to sign at the time that you sign your power of attorney. The agent's signature does not have to be notarized only your signature. Your agent signs when you are in need of their help. 

How do you revoke an agent's authority? You should maintain your original powers of attorney. If you no longer want a person to serve as your agent, then the powers of attorney should be destroyed and new ones entered into. If your agent has an original power of attorney, then you must get it back and destroy it. Otherwise, you have to inform those individuals who may rely on the power of attorney that you have revoked your agent's authority. ALWAYS appoint someone whom you trust.

Springing Power of Attorney.   There is another type of power of attorney referred to as a springing power of attorney. It can only be used if a doctor has certified your incapacity and such certification must be attached to the power of attorney for it to be effective. The springing power of attorney is revoked once you regain capacity.
Call me today and I'll get your child's Power of Attorney done before they leave for school.

Monday, July 30, 2012

Selecting a Guardian Might Come With Some Drama

Just before the news broke regarding the guardianship of Michael Jackson’s children, I received this question.  Can the selection of guardian for minor children withstand a legal challenge by the grandmother?   In this particular situation, a non-relative was chosen by a couple as the guardian of their children.  The wife’s mother was not pleased when she found out her daughter’s decision. 
Selecting the guardian for your minor children is one reason for having a Will.  Even though your selection could be challenged (it’s the American way), it does not mean it will be successful.  The courts generally uphold the appointment of the guardian selected by the parents. Any challenge would have to allege and demonstrate that the guardian selected is unfit or unable to properly care for the children.  The court considers what is in the best interest of the child.  Status as a relative is not a controlling or determining factor.  A grandmother does not have a legal right to override the parents’ selection merely because the grandmother prefers to serve or have a relative serve as guardian.  Parents are generally in the best position to determine who would be in the best position to care for their children.   
That being said, it is wise to have conversations regarding guardianship with those whom you know will be upset with your selection and work through those issues during your lifetime.  Further, you should update your selection as circumstances change, including aging, financial stability and interest.  It is not in your child’s best interest for them to be embroiled in a legal battle when they have already lost so much.

Sunday, July 29, 2012

The Importance for the LGBT Community to Engage in Estate Planning…

It is just as important, if not more important, for
couples of the same gender to engage in estate planning.
I was talking with a CPA specializing in estate planning about the unique tax issues that arise in domestic relationships. Specifically, she expressed that couples of the same gender, unlike married couples, have no IRS exclusion for property or monetary transfers between them. Such transfers could be subject to gift tax and transfer tax. If there are significant assets involved in a separation betweencouples of the same gender, even if the financial provider wanted to be fair with property division, the tax consequences may be prohibitive. After the lifetime exclusion of 5 million, which may go back to 1 million, the excess will have a gift tax imposed. The maximum gift tax rate in 2012 is 35%, and it may be raised in later years. The gift tax rate is a hefty tax for anyone to pay.
To the extent you can address tax situations as well as protect your relationship, cohabitation/domestic partnership agreements are advisable. They are particularly beneficial in the following situations:

1. when a second person's name is added to a deed after considerable equity has already been established in the home during ownership by the first owner. The agreement will help clarify ownership interest in the real estate.

2. when property purchased jointly is only held in one person's name

3. when one person is the financial provider and the other is a homemaker

4. when unequal contributions are made towards the purchase of jointly held property

5. when there is an interest in giving benefits or rights to another that are not required or available under the law

6. when assets are co-mingled or combined

7. when there are family members who may dispute the interest of a domestic partner.

It is always wise to have an agreement between couples of the same gender. There are many situations that we can not anticipate, and having an agreement in place is always helpful.

Call me today if you have questions pertaining to Estate Planning for the LGBT Community

Monday, July 23, 2012

Dark Knight Rises - Aurora, Colorado

President Barack Obama hugs Stephanie Davies, who helped keep her friend, Allie Young, left, alive after she was shot during the movie Aurora movie theater shootings in Aurora, Colorado.
When I heard about the tragedy Friday morning the 20th, my heart went out to all the families directly affected and all of us who can only imagine the pain.  We can not allow such senseless tragedy to take over even our simple pleasures. 

This pass weekend my family gathered to celebrate my mother's 76th birthday.  Of course, one of our usual outings with the children during these festivities is going to the movies.  But, naturally, we took pause as the Aurora tragedy continued to unfold.  No one was up for a midnight Batman so Spiderman won out.  Those going to the movie were much more vigilante in assessing their surroundings.  But, come on, is this how we must live our life?  Can we, as a people, as human beings, figure out how to take back control over the simple act of going to the movie with your children? 

I ask because I do not know the answer.  I blog, I tweet, I facebook, I ponder!!

Thursday, July 19, 2012

Planning Ahead - Get Your Affairs in Order

Woody Allen is credited with saying, “If you want to make God laugh, tell him your plans.”  I would be the first to admit that we certainly aren’t in control of as much as we’d like to think we are.  So, in my estate planning with clients, I like to take a look at where they have been.  That is the back story, the legacy piece that we ALL have and that keeps my work interesting, intriguing and varied.

More than plan, I create a map, of sorts, for my clients.  The future has many twists and turns, alternative routes, hills and valleys.  Our estate planning "map" could include Wills, Trusts, Powers of Attorney, Gifting, etc.  It provides for our intentions BUT allows the details to unfold in accordance with the universal principles.  The estate planning  "map" for each client has flexibility and often is updated with changing circumstances.

Once we have our  estate planning "map" which details our wishes, needs and desires, we can focus with clarity around our intent and accept that the details are not within our control, only our intentions.  Contact us at www.ythlaw.com

Wednesday, July 18, 2012

A Will Serves Many Purposes

On this hot, 97 degree day in July, I share with you this hot tip.  Really, truly, for the most part, none of us know how we might die.  We know we will die, but not when or how.  So when folks say "I do not need a Will, I have "nothing"," I share this story.

A young man's mother was killed in an automobile accident.  The other driver ran a red light going at a high rate of spend in his deliver vehicle.  He survived with minor injuries and was declared to be at fault.  He was sued by the son for wrongful death of the mother.  The insurer for the driver's fleet of deliver trucks settled the suit for excess of $900,000.  Though the mother had "nothing" her estate now is worth $900,000.  Who gets her assets?  She was estranged from her husband for 17 years (never divorced) and she had 3 children (her son with whom she lived, a daughter with drug issues and another daughter who died leaving her only grandchild).

The intestate law would distribute the estate to the husband, son and daughter.  The grandchild would not be entitled to any of the estate.  Is this the result that would have been intended if a Will was done?

Contact us at www.ythlaw.com for your probate, estate planning and elder law needs.

Tuesday, July 17, 2012

Beneficiary Designations are Important

I was recently working on an estate matter which demonstrated the importance of updating and keeping track of your beneficiary designation.  Many of our seniors obtain life insurance to provide for their funeral.  However, the person designated as the beneficiary does NOT have to use the monies for the funeral.  They could choose to keep the money for their own benefit.  

In this case, the person designated her brother as the beneficiary under her life insurance policy.  He had agreed to use the money to take care of her funeral expenses.  Since he WAS her closest living relative, he would not have to come out of pocket to bury his sister.  WELL, her brother predeceased her and her secondary beneficiary was her niece (her brother's daughter) who did not have the same interest as the decedent's brother.  The niece wants to use the insurance to purchase a house and is only willing to provide some funds towards a funeral.  What is to be done?  Either the other family members will have to all contribute towards a funeral or there will be a cremation or an inexpensive service, less than what would have been affordable with the insurance proceeds. 

SO, keep your beneficiaries up to date BUT more importantly it would be better to just prepay your funeral and not depend on others to use insurance proceeds in your best interest.  Contact us with your estate planning, probate, guardianship, and business succession planning needs at www.ythlaw.com

Wednesday, July 11, 2012

Prenuptial Agreements and the Business Owner

I was talking with a new business owner.  He just purchased a service station and was so excited about this new venture.  He had worked in the business since high school and so was quite sophisticated in business matters at such a young age of 29.  He had also met the love of his life on an on-line dating service.  Now, his dilemma is he wants to get married but does not want to have his business part of the assets of this new union.  Not a problem at all with the use of a Prenuptial Agreement.

A business owner may want to protect his exclusive rights to the business if the marriage fails, as in the case for this business owner, or control the diposition of the buiness after his death, ie. for parents or the child of a prior marriage.  For purposes of best practices, the following should always be consider and done:
1.  Make sure it is voluntary and not done under duress.
2.  Make a fair financial disclosure.
3.  Share the proposed agreement well before the wedding and even before the wedding date is set.
4.  Demonstrate some fair negotiation if one party clearly is less well off than the other.
5.  Each party should have their own counsel even if one has to pay for the others.
6.  Fairness should be demonstrated in the process when their is an economically weaker party.

Contact us for all your probate, guardianship, estate planning, business succession planning and prenuptial agreement needs at www.ythlaw.com.