Estate Planning for a Second Marriage and Blended Family

It takes a certain kind of courage to embark on second, third or even fourth marriages, even when there are no children from prior marriages. Regardless of how many times you walk down the aisle, the recent article “Establishing assets, goals when planning for a second marriage” from the Times Herald-Record advises couples to take care of the business side of their lives before saying “I do” again.

Full disclosure of each other’s assets, overall estate planning goals and plans for protecting assets from the cost of long-term care should happen before getting married. The discussion may not be easy, but it’s necessary: are they leaving assets to each other, or to children from a prior marriage? What if one wants to leave a substantial portion of their wealth to a charitable organization?

The first step recommended with remarriage is a prenuptial or prenup, a contract that the couple signs before getting married, to clarify what happens if they should divorce and what happens on death. The prenup typically lists all of each spouses’ assets and often a “Waiver of the Right of Election,” meaning they willingly give up any inheritance rights.

If the couple does not wish to have a prenup, they can use a Postnuptial Agreement (postnup). This document has the same intent and provisions as a prenup but is signed after they are legally wed. Over time, spouses may decide to leave assets to each other through trusts, owning assets together or naming each other as beneficiaries on various assets, including life insurance or investment accounts.

Without a pre-or postnup, assets will go to the surviving spouse upon death, with little or possibly nothing going to the children.

The couple should also talk about long-term care costs, which can decimate a family’s finances. Plan A is to have long-term care insurance. If either of the spouses has not secured this insurance and cannot get a policy, an alternate is to have their estate planning attorney create a Medicaid Asset Protection Trust (MAPT). Once assets have been inside the trust for five years for nursing home costs and two-and-a-half years for home care paid by Medicaid, they are protected from long-term care costs.

When applying for Medicaid, the assets of both spouses are at risk, regardless of pre- or postnup documents.

Discuss the use of trusts with your estate planning attorney. A will conveys property, but assets must go through probate, which can be costly, time-consuming and leave your assets open to court battles between heirs. Trusts avoid probate, maintain privacy and deflect family squabbles.

Creating a trust and placing the joint home and any assets, including cash and investments, inside the trust is a common estate planning strategy. When the first spouse dies, a co-trustee who serves with the surviving spouse can prevent the surviving spouse from changing the trust and by doing so, protect the children’s inheritance. Let’s say one of the couple suffers from dementia, remarries or is influenced by others—a new will could leave the children of the deceased spouse with nothing.

Many things can very easily go wrong in second marriages. Prior planning with an experienced estate planning attorney can protect the couple and their children and provide peace of mind for all concerned.

Reference: Times Herald-Record (Sep. 21, 2020) “Establishing assets, goals when planning for a second marriage”

Elder Financial Abuse Fraud Occurs, When No One’s Watching

The case of Nice vs. U.S. is a dramatic example of what can happen when there are no professionals involved in an elderly person’s finances and one person has the power to make transactions without supervision. In the article “Tax case reveals possible intrafamily fraud” from Financial Planning, a trusted son allegedly decimated his mother’s IRA and left her estate with $500,000 tax bill.

Mrs. Nice and her husband had been married for more than 60 years. Before he died in 2002, her husband arranged to leave significant assets for his wife’s care. Their son Chip was named executor of the husband’s estate and moved in with his mother. In 2007, she was diagnosed with dementia. As her condition deteriorated, Chip allegedly began fraudulent activities. He gained access to her IRAs, causing distributions to be made from the IRAs and then allegedly taking the funds for his own use.

Chip also filed federal income tax returns for his mother, causing her to execute a fraudulent power of attorney. The federal tax returns treated the IRA distributions as taxable income to Mrs. Nice. She not only lost the money in her IRA but got hit with a whopping tax bill.

In 2014, Mrs. Nice’s daughter Julianne applied for and received a temporary injunction against Chip, removing him from her mother’s home and taking away control of her finances. Chip died in 2015. A court found that Mrs. Nice was not able to manage her own affairs and Mary Ellen was appointed as a guardian. Julianne filed amended tax returns on behalf of her mother, claiming a refund for tax years 2006-07 and 2009-13. The IRS accepted the claim for 2009 but denied the claims for 2006 and 2010-2013. The appeal for 2009 was accepted, but the IRS never responded to the claim for 2007. Julianne appealed the denials, but each appeal was denied.

By then, Mrs. Nice had died. Julianne brought a lawsuit against the IRS seeking a refund of $519,502 in federal income taxes plus interest and penalties. The suit contended that because of her brother’s alleged fraudulent acts, Mrs. Nice never received the IRA distributions. Her tax returns for 2011-2014 overstated her actual income, the suit maintained, and she was owed a refund for overpayment. The court did not agree, stating that Julianne failed to show that her mother did not receive the IRA funds and denied the claim.

There are a number of harsh lessons to be learned from this family’s unhappy saga.

When IRA funds are mishandled or misappropriated, it may be possible for the amounts taken to be rolled over to an IRA, if a lawsuit to recover the losses occurs in a timely manner. In 2004, the IRS issued 11 private-letter rulings that allow lawsuit settlements to be rolled over to IRAs. The IRS allowed the rollovers and gave owners 60 days from the receipt of settlement money to complete the rollover.

Leaving one family member in charge of family wealth with no oversight from anyone else—a trustee, an estate planning attorney, or a financial planner—is a recipe for elder financial abuse. Even if the funds had remained in the IRA, a fiduciary would have kept an eye on the funds and any distributions that seemed out of order.

One of the goals of an estate plan is to protect the family’s assets, even from members of their own family. An estate plan can be devised to arrange for the care of a loved one, at the same time it protects their financial interests.

Reference: Financial Planning (March 6, 2020) “Tax case reveals possible intrafamily fraud”

When Should You Have ‘The Talk’ with Your Kids?

Talking about who will control your assets is always a tricky thing, says AARP.org in a recent article “Do Your Kids Know Where to Find All Your Money if Tragedy Strikes?” The risk of adult children being caught unawares or without access to a parental funds could lead to big problems, if the parents should die or become incapacitated unexpectedly. Experienced estate planning attorneys know the conversation is better had now, than pushed into the background with a giant surprise in the future.

When a parent’s finances are revealed only after their death, or if dementia strikes, the unexpected responsibility can create a lot of stress. However, there are also reasons not to tell. If a child has a substance abuse problem, or is in a bad marriage, this information may be best kept under wraps. There is no one-size-fits-all solution. However, there are some universal rules to consider.

Short on cash? Don’t make a secret of it. If you might end up needing help during retirement, it’s best to tell your children early on. Family members have helped each other since there were families, but the earlier you involve them, the more time they have to help you find more resources and make plans.

Dealing with big numbers? You might want to wait. The amount of money you have worked a lifetime to save may look like an endless supply to a 22-year old. When young adults learn there’s a pot of gold, things can go south, fast. If you have a spouse and are relatively young and healthy, then all the children need to know, is that you are well set for retirement. By the time you’re closer to 80, then your children and/or a trusted financial representative and your estate planning attorney will need to know where your money is and how to access it.

How to share the details? Start by making a complete list of all of your assets, including account numbers, key contacts and any other details your executor or agents will need to handle your affairs. Put that information into an envelope and make sure that your children or your estate planning lawyer know where it is. If the information is kept on your computer or on an online portal, make sure the right people have access to the passwords, so they can access the information.

How to share the big picture? Estate planning attorneys often recommend a family meeting in their offices, with all of the children present. It’s helpful to have this meeting happen in neutral territory, and even children who tend to squabble among themselves behave better in a lawyer’s conference room. You can explain who the executor will be, and why.

Introduce them to your team. Chances are you have a long-standing relationship with your estate planning attorney, financial advisor and accountant. These are the people your children will be working with after you have passed. Having them meet before you die or become incapacitated, will be better for a working relationship that will likely occur during a stressful time.

Reference: AARP.org (April 24, 2020) “Do Your Kids Know Where to Find All Your Money if Tragedy Strikes?”

The Symptoms of Early-Onset Alzheimer’s Disease
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The Symptoms of Early-Onset Alzheimer’s Disease

Considerable’s article entitled “7 surprising early signs of Alzheimer’s” provides us with some signs of early-onset Alzheimer’s disease.

Theft or other law-breaking. Any behavioral change as people age is of concern, but this can be a sign of Frontotemporal Dementia (FTD), another progressively damaging, age-related brain disorder. FTD usually hits adults aged 45-65. People’s executive function—their ability to make decisions—can be impacted by FTD, which may explain why they become unable to discern right from wrong.

Frequent falls. A study of 125 older adults asked them to record how frequently in an eight-month period that they fell or tripped. Researchers examined the brain scans of those who fell most frequently and saw a correlation between falls and the early onset of Alzheimer’s Disease.

Forgetting an object’s function. We all forget where we put the keys. However, if you can’t remember what a key is for, or where dirty dishes are supposed to go, then it may be the first signs of Alzheimer’s Disease or dementia.

Inappropriate diet. Prior to the onset of Alzheimer’s, patients typically to eat more (roughly 500 calories more a day) than their aging counterparts but they still tend to lose weight. Doctors think this is a metabolic change. Some elderly actually eat inanimate objects prior to their diagnosis, but researchers don’t know the reason. Because Alzheimer’s and dementia affect the brain’s memory, it may be because their brain receives hunger signals but is unable to discern how to react to them. Some patients eat paper or other inedible objects.

Inability to recognize sarcasm. If you fail to recognize sarcasm or take it very literally and seriously, it may be a sign of atrophy in your brain. A study at the University of California – San Francisco found that Alzheimer’s patients and those with Frontotemporal Disease were among those who couldn’t recognize sarcasm in face-to-face encounters. The brain’s posterior hippocampus is impacted, which is where short-term memory is stored and where a person sorts out such things, like sarcasm.

Depression. If someone has never suffered from clinical depression but develops it after age 50, it could be an early sign of Alzheimer’s. It doesn’t mean if you’re diagnosed with depression in older age that you will develop Alzheimer’s or other cognitive decline. However, you might, so get treatment sooner because some researchers believe that hormones released in the depressed brain may damage certain areas of it, leading to the development of Alzheimer’s or other dementia.

Unfocused Staring. Alzheimer’s Disease is a change in cognitive and executive functioning in the brain. This means that your ability to recall facts, memories and information is compromised, as well as the ability to make decisions. The brain becomes unfocused and staring in a detached way may be an early sign of so-called “tangles” in your brain.

These symptoms may be signs of Alzheimer’s Disease, or they may be the signs of other underlying issues. See your doctor if you have any of these signs. This may be a sign of something else but talk to your doctor to be safe.

Reference: Considerable (December 8, 2020) “7 surprising early signs of Alzheimer’s”

How Do We Test for Dementia?

“Unfortunately, there is not one single test that confirms dementia while you are alive,” says Dr. Julie Brody Magid, clinical director of the Harvard-affiliated McLean Hospital Memory Disorders Assessment Clinic. “The testing process is multilayered and takes many things into consideration. Going through this evaluation may help identify memory problems, before they get worse.”

An article in the upcoming May issue of Harvard Men’s Health Watch entitled “Testing for dementia” explains that the symptoms of dementia include memory loss, problem-solving difficulties and language issues. The author says that behavior and emotions also can be impacted. The symptoms are often subtle in the early stages and then get progressively worse. These symptoms can continue to interfere with daily life tasks, such as remembering to attend appointments, taking your medications, or paying bills. Dementia patients also may have trouble preparing meals or driving safely.

The most common kind of dementia is Alzheimer’s. Its symptoms include having a hard time retaining recently acquired information and remembering recent conversations. Those with Alzheimer’s disease  may also have difficulty monitoring upcoming events and may make repetitive comments.

A physician can begin a dementia screening with a brief test, like the Mini-Mental Status Exam or the Montreal Cognitive Assessment. These take about 10 minutes and include tasks, such as learning a list of words and then recalling them minutes later and identifying the similarities between words. Your doctor will determine if your screening test score and symptoms warrant more testing. If so, she will refer you to a memory clinic for a full assessment, which includes a neuropsychological evaluation and biomarker tests.

The neuropsychological evaluation lasts about four hours. It includes a series of in-depth analyses, such as one-on-one interviews and written and oral tests, designed to gauge specific cognitive functions, like attention, problem solving, spatial skills and executive functioning. These test scores are compared with what an average person of the same age and education level may experience.

Biomarker tests may include an MRI to look for structural changes in the brain, like small lesions or changes in the white matter. This may show damage to brain tissue, due to small strokes and suggest that memory issues may be related to vascular disease or “vascular dementia.” This scan also can show shrinkage of the cortex (the area that processes memory, attention and problem solving) or less volume in the hippocampus (the region involved in short- and long-term memory). While there’s some amount of brain shrinkage with normal aging, significant changes in brain volume may mean a higher probability of early Alzheimer’s.

Once your doctor reviews everything, and if a cognitive disorder is confirmed, it is categorized as mild, moderate, or severe, which will help the doctor prescribe the best available treatments.

If Alzheimer’s is suspected, there are prescription drugs that can help retard symptom progression. If the diagnosis is vascular dementia, it’s important to manage cardiovascular risk factors such as taking medications to control blood pressure and cholesterol levels, exercising regularly and following a heart-healthy diet.

With memory loss, you must be as proactive as with any other health issue. The more you delay in taking action, the fewer tools that are available.

Reference: Harvard Men’s Health Watch (May 2020) “Testing for dementia”

Caring for Alzheimer’s and Dementia Patients during Stay-At-Home Orders

The Havre Daily News’ recent article entitled  “Alzheimer’s Association offers tips for keeping people with dementia engaged during stay-at-home orders” reported that, to help caregivers engage their family members suffering from Alzheimer’s and other dementia, the Alzheimer’s Association has provided some ideas to assist.

Alzheimer’s disease is a progressive disorder that causes brain cells to degenerate and die. This disease is the most common cause of dementia, which is defined as a continuous decline in thinking, as well as behavioral and social skills that disrupts a person’s ability to function independently.

When considering how to help a person with dementia stay engaged during the pandemic, the release from the Alzheimer’s Association said, you can start by asking yourself these questions:

  • What do they like to do?
  • What are they able to do?
  • What are they in the mood for today?

The Alzheimer’s Association says that spending time with a family member or loved one with Alzheimer’s and other dementia can still be a meaningful and fun experience, especially if you take your cue from them. Let’s look at some ideas:

Encourage involvement in daily life activities. These types of basic activities can help the person feel like a valued part of the household. This can be things like setting the table and folding laundry. The tasks can give a dementia patient a sense of success and accomplishment.

Be ready to adjust and modify activities. Some activities that the person enjoys may need to be changed or modified, because of the stay-at-home orders in effect in most states. A few ideas are low-impact at-home workout videos; playing games like checkers, cards, or board games; or looking at photo albums.

Concentrate on individual enjoyment. Someone who’s worked in an office might enjoy activities that involve organizing, such as collating papers, putting coins in a holder, or creating a to-do list. A former farmer or gardener may like being in the fresh air and working in the yard.

Don’t be afraid to request help. Ask family members and friends for help with some non-contact chores. This might include help putting the trash out, collecting the mail, or tending to the yard. You should also look into meal and grocery delivery services.

The Alzheimer’s Association now has free expanded educational programs via telephone and online. These programs provide crucial information about Alzheimer’s and related dementias, effective communication techniques, understanding and responding to dementia-related behaviors and more.

There are also additional resources for caregivers on the association’s website at https://www.alz.org.

Reference: Havre Daily News (April 14, 2020) “Alzheimer’s Association offers tips for keeping people with dementia engaged during stay-at-home orders”

How Can I Be a Good Caregiver?

If you find yourself suddenly in a caregiving role, you may not know where to begin. CaringBridge’s recent article entitled “5 Tips to Be a Good Caregiver” provides some great advice.

Communicate. This is the most important factor, when trying to be a good caregiver. Caregivers should strive to communicate with patience, understanding and empathy.  A person being taken care of can sometimes feel like they’re a burden or a nuisance. Good communication and reassurance can help prevent that. You should also have communication between you and your other family and friends. Asking for help isn’t always easy, but those who care about you will want to support you.

Take Care of Yourself.  When you’re constantly on call caring for a person who is ill, it’s not hard to forget about your own needs. Caregivers can be so overwhelmed, that they’re unable to take time for their other family or interests. They can feel guilty being away from the person in need. However, you can’t be a good caregiver, if you aren’t also in good shape. Prioritize your own health, physical and mental—it’s vital for both you and your loved one. First, take care of yourself because you can’t take care of a loved one, if you are not taking care of yourself.

Have a Lot of Patience. This is important because it’s helpful to be patient with yourself. You’ll make mistakes, but remember that you’re trying your best, and no one’s perfect. You should also be aware that communication can sometimes be difficult, when you’re caregiving. Your loved one might say or do something that hurts your feelings. However, do your best to be patient and empathetic. Don’t take it personally. Try to look at the situation with understanding and acceptance to battle discouragement.

Create Boundaries. When spending so much time with one person, and sharing their most intimate moments, it’s still important to have some boundaries. These can include you knowing your own limitations and what you’re comfortable doing for that person. Boundaries also apply to the person receiving the care and things, such as the way in which that want to be cared for and their likes and dislikes. Boundaries allow both people to be happier.

Remind Yourself of Your Mission. Sometimes, you can become a caregiver out of necessity or a sudden crisis. Nonetheless, at the center of the situation is love and empathy. Caregivers love and want the best for the person they’re helping. You should try to harness that compassion to keep you motivated through hard times.

Remember that a good caregiver is one who cares. You’re not expected to be perfect, so make certain that you give yourself just as much love and patience as you offer your patient.

Reference: CaringBridge (Feb. 13, 2020) “5 Tips to Be a Good Caregiver”

What I Need to Know about Caring for a Loved One with Dementia

Family caregivers of dementia patients must be more prepared for immediate changes in temperament. They need more support and respite care, and they need a better idea of what to expect in the days and months ahead.

Forbes’s recent article entitled “When Your Loved One Has Dementia: 3 Questions For Family Caregivers” provided three important questions to ask if your aging parent or family member has been diagnosed with a form of dementia.

What training must I have? When a parent, friend, or other loved one in your care is has dementia, you should look to local healthcare resources for education and training.

The temperament of people suffering from a form of dementia can change swiftly. It can rapidly turn hurtful or even violent. However, there are things a caregiver can do to interact with them to help keep them calm. Ask their healthcare provider for suggestions or referrals.

As a caregiver, do I have the legal standing to take care of this person? You should determine if your loved one has a will or living will in place, along with a healthcare power of attorney. These are documents that must be drafted and signed, before their dementia progresses to the point where it totally distorts your loved one’s thought process.

The documents provide instructions as how to care for them, according to their original wishes and avoid stress in the family, if disagreements arise. Contact an elder law attorney as soon as possible to create these documents.

How do I get help when I need it? Caring for an aging loved one can be a very tiring task. Tending to the needs of an aging loved one with a form of dementia is an even greater challenge. Begin planning now for self-care.

You can’t take care of a loved one with dementia, if your physical and mental health is wiped out and you are exhausted. Look at respite care options to give yourself the rest you’re going to need.

Getting these measures ready now can ensure that you are prepared for the tough future.

Reference:  Forbes (March 23, 2020) “When Your Loved One Has Dementia: 3 Questions For Family Caregivers”

What are the Restrictions on Visiting the Elderly in a Care Facility?

The restrictions in Virginia started after the American Health Care Association, the largest national trade organization representing long-term care centers, and the Centers for Disease Control and Prevention issued guidance recommending extreme measures to prevent a scenario that has played out in a Washington state nursing home, where the virus spread rapidly and took many lives.

The Richmond Times-Dispatch’s recent article entitled “Virginia nursing homes restrict visitors over coronavirus fears, families worry about separation” says, however, that some family members and advocates worry that — without loved ones allowed to visit — residents will be even more vulnerable to neglect in nursing homes that already struggle to give them basic care.

“What we have found is that experts believe that this is the most prudent step that we can take to protect the residents,” said Keith Hare, CEO of the Virginia Health Care Association, the state chapter of the AHCA. “We have to put the health and well-being of these residents first. … It really is unprecedented action.”

However, some family members who are told that they can drop off supplies for the residents at the nursing home, cannot stay for a visit. Some are worried that parents with Alzheimer’s who need help eating, won’t be fed without their regular visitors because nursing homes are understaffed.

Nursing homes in the state say it was a hard decision to cease visitation, but it was necessary to prevent any exposure in the care facilities. They’re going to do whatever we can to keep it out, official say.

Innovative Healthcare Management, a company that runs five nursing homes in Virginia with a total of 750 residents, said that it has been educating its staff and preparing for a potential outbreak, since first learning of the coronavirus outbreak in China. IHM recently began screening visitors for possible coronavirus infection before they entered the facilities. The company decided to restrict all nonessential visitors, except when a resident is believed to be dying.

Nursing homes are trying other ways for family members to connect with residents, like phone calls and video chats.

While nursing homes around the country are doing the same thing and are restricting group gatherings within the centers, they are trying to make sure residents are being entertained with in-room activities, such as movies, card games, and puzzles. The focus at the facilities is on communication and keeping residents entertained.

Reference:  Richmond Times-Dispatch (March 15, 2020) “Virginia nursing homes restrict visitors over coronavirus fears, families worry about separation”

What Is So Important About Powers Of Attorney?

Powers of attorney can provide significant authority to another person, if you are unable to do so. These powers can include the right to access your bank accounts and to make decisions for you.

AARP’s article from last October entitled, “Powers of Attorney: Crucial Documents for Caregiving,” describes the different types of powers of attorney.

Just like it sounds, a specific power of attorney restricts your agent to taking care of only certain tasks, such as paying bills or selling a house. This power is typically only on a temporary basis.

A general power of attorney provides your agent with sweeping authority. The agent has the authority to step into your shoes and handle all of your legal and financial affairs.

The authority of these powers of attorney can stop at the time you become incapacitated. Durable powers of attorney may be specific or general. However, the “durable” part means your agent retains the authority, even if you become physically or mentally incapacitated. In effect, your family probably won’t need to petition a court to intervene, if you have a medical crisis or have severe cognitive decline like late stage dementia.

In some instances, medical decision-making is part of a durable power of attorney for health care. This can also be addressed in a separate document that is just for health care, like a health care surrogate designation.

There are a few states that recognize “springing” durable powers of attorney. With these, the agent can begin using her authority, only after you become incapacitated. Other states don’t have these, which means your agent can use the document the day you sign the durable power of attorney.

A well-drafted power of attorney helps your agent help you, because she can keep the details of your life addressed, if you cannot. That can be things like applying for financial assistance or a public benefit, such as Medicaid, or verifying that your utilities stay on and your taxes get paid. Attempting to take care of any of these things without the proper document can be almost impossible.

In the absence of proper incapacity legal planning, your loved ones will need to initiate a court procedure known as a guardianship or conservatorship. However, these hearings can be expensive, time-consuming and contested by family members who don’t agree with moving forward.

Don’t wait to do this. Every person who’s at least age 18 should have a power of attorney in place. If you do have a power of attorney, be sure that it’s up to date. Ask an experienced elder law or estate planning attorney to help you create these documents.

Reference: AARP (October 31, 2019) “Powers of Attorney: Crucial Documents for Caregiving”