William & Mary Elder Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: March 2016

Anything Can Happen to Anyone at Any Time

By Kate Lennon, Elder Law Clinic Student, Spring 2016

Preparing for the worst case scenario is never fun. What the Elder Law Clinic has taught me is that everyone should plan for the future, regardless of how unlikely, unnecessary, or discomforting this planning may seem. Upon signing up for the Clinic, I envisioned that we would be helping people who have current legal problems, and while we do a significant amount of that, I was surprised to learn that we could do so much for those people who had yet to have any serious problems occur in their lives. If I had to choose one thing I learned from the Clinic to pass on to others, it would be to plan now.

I know some readers will think, “well sure, I know that I am supposed to plan, but how am I supposed to make decisions for such unlikely circumstances,” or  “I have plenty of time to make these choices.” I can relate to that. On the first day of class, our clinic’s supervising attorney told us we should have a power of attorney in place for ourselves, and I thought, like many of you, that I have plenty of time to create a document like that. Truth is, without my clinic experience, I would have likely been saying the same thing at 65 years old as I said at 24 years old: “I have plenty of time.” The reality is, we will always feel like we have plenty of time, until problem strikes, in which case, we will have no time at all to make these decisions.

This brings me to why planning now is so important. While there are likely many reasons why planning proactively is better than trying to make decisions in crisis, I would propose three key reasons that I think will resonate with a lot of readers. First, the unlikely or unfortunate scenarios CAN and DO happen. While it is a bit unsettling, even the healthiest person can face an unfortunate day when they need emergency medical care; when they cannot make decisions for themselves; or when their family is faced with the devastating news of their death. I, like many of you, also find this to be a hard topic to think about, but it is important to remember that it will be even harder to think about these things while they are happening.

That brings me to my second reason: planning now will help your loved ones make decisions in the unfortunate event that something does happen to you. If an unfortunate situation does arise, your loved ones will be in a heightened emotional state. During that time, they will at least find some solace in the fact that you have planned for the situation, leaving them with instructions and guidance on what to do. Having these plans laid out will also decrease the amount of conflict that might arise among your loved ones.

Finally, to my third reason: planning now will give you, and your loved ones, peace of mind as you move forward in life. While beginning to think about unfortunate circumstances is initially unsettling, once you have finished planning, you will find comfort in the fact that if something were to happen, you are as prepared as you can be. In addition, your loved ones will find comfort in the fact that they will have instruction if certain difficult situations were to arise.

So my one suggestion is to plan now, while you have “plenty of time,” rather than waiting until there is no time to make decisions. Implement medical directives, Powers of Attorney, and a Last Will and Testament. While we may not be able to stop bad things from happening, we can plan so that we are ready if they do. As our clinic’s supervising attorney says, “Anything can happen to anyone at any time.”

How to Provide For Your Pet

By Elspeth Berry, Elder Law Clinic Student, Spring 2016

In many modern households, pets are considered to be part of the family. For some, pets are the closest thing they have to children. When a pet is that important to someone, it would make sense that he or she would wish to provide some security for them in a will or other estate planning document. What happens if you become mentally or physically incompetent and cannot take care of your pet for a period of time? What happens to your pet upon your death? Can you leave money specifically for the care and maintenance of your pet? Fortunately, there are estate planning options available to pet owners in these situations that can help set their minds at ease regarding their pets’ futures.

Because pets are considered to be personal property themselves, they cannot inherit anything on their own. The pet owner must therefore provide for his or her pet indirectly. The first thing a pet owner should do is decide to whom they feel comfortable leaving their pet, and then ask that person if they would be willing to assume this responsibility. Once the pet owner makes this decision, and the potential caretaker agrees, he or she may make a specific bequest of the pet in their will to the person they have chosen. The pet owner may also provide for his or her pet during periods of physical or mental incompetency by including a provision in his or her durable power of attorney that names a caretaker for the pet and authorizes funds to be distributed from the estate for the care of the pet. In order to pay the pet’s expenses after the pet owner’s death, he or she may also make a specific bequest of money to the chosen caretaker in his or her will, with the precise instructions that this money be used for the benefit of the pet. Another way to leave money to a pet is by making a trust for them, which a person can do in some states including Virginia. The trustee, or administrator of the trust, has a legal duty to administer trust funds for the sole benefit of the beneficiary, in this case, the pet. A trust can be created for more than one beneficiary, so if a pet owner has more than one pet, he or she may make them all equal beneficiaries. The trust terminates either when the single pet dies or when the last surviving pet dies, if there are multiple pets named as beneficiaries.

While there are no guarantees that a pet owner’s beloved animal will be loved and cared for precisely in the way that he or she would wish, the methods described above can help make sure that the pet is at least looked after by someone chosen and trusted by the pet owner. This can provide some important peace of mind during and after the estate planning process.

 

Adult Children, Caretaker Parents, and the Scope of a General Power of Attorney

By Charles Lambdin, Elder Law Clinic Student, Spring 2016

As parents age, they often adopt a power of attorney allowing their spouse, child, another relative, or close friend to make decisions for them as an agent in the event they cannot make those decisions for themselves. This power of attorney can be designed to activate only when the individual becomes mentally incapacitated (i.e. unable to handle his own financial affairs). At least one physician must determine that the individual is mentally incapacitated. With these safeguards in place, concerns about the amount of power being handed over decreases. The power of attorney may be broad in scope, but the powers within it are not readily accessible until incapacity.  This is commonly referred to as a “springing” power of attorney.

But what happens when an adult child needs some assistance immediately even though he still has the mental capacity to make most of his own decisions? This is where the strengths and weaknesses of having a caretaker parent become more obvious. Caretaker parents often provide many benefits to disabled adult children; they may take them to appointments, manage their affairs, sort their prescription medications, and provide a loving atmosphere free from the guilt that one might feel from relying on a caretaker. There is a downside, however. Parents are used to making decisions on behalf of their children whether by opening up a savings account at the bank or filing their taxes during those college years when many children are barely aware that they are paying taxes. Adult children with caretaker parents walk the fine line between being an independent adult and a dependent child. They may need their parents to help manage some of their affairs but do not want to give up full control.

This is where a “split” power of attorney can help. A power of attorney can be designed to come into effect immediately. This gives the agent the ability to exercise the powers as soon as the document is signed. A mildly-incapacitated adult child might find this very useful. It would allow the caretaker parent to speak with creditors, talk to doctors, and manage the adult child’s finances whenever it was necessary for the parent to step in. The risk, however, is that the caretaker parent might take things too far. This may include selling or transferring assets without the adult child’s consent or making large purchases that the child may need but should also be involved in.  However, a power of attorney that is limited in scope could protect the adult child’s relationship with the caretaker parent by narrowing the powers given to the caretaker parent. The powers could be limited to only paying bills and picking up medications, for example. Any day-to-day task that the adult child needs help with can be included. The broader scope of powers that one usually finds in a power of attorney would then exist in a “springing” power of attorney. The springing powers would only come into effect if the adult child becomes mentally incapacitated. Thus, by narrowing the scope of the powers that are immediately available, the adult child and the caretaker parent avoid the risk of overstepping boundaries and are protected by the second springing power of attorney that gives the caretaker parent full power to manage the adult child’s affairs should he become mentally incapacitated.