Alzheimer’s or dementia are not always easy to see. Families may go months or more before they realize that a loved one is forgetting a few too many things or confused about more than just the new DVD player. One of the first signs of Alzheimer’s or dementia is also one of the most dangerous—a growing inability to understand and handle financial matters. Elder care lawyers often hear stories that reveal that one of the first signs of dementia is an inability to understand money, personal finances, and contracts. Client families need to take steps to protect the family finances when a loved one grows vulnerable to financial manipulation. There is no legal standard for ‘vulnerability,’ but vulnerable individuals are easy prey for scam artists and just plain poor financial decision-making. One novel idea used by a family to stop the loss of thousands of dollars being spent by a loved one to obtain supposed lottery “winnings” was to limit the affected person’s checking account balance. In addition, family members actively created a lottery game to distract and amuse their loved one. It worked! If family members live far away, some of the first people likely to notice these telltale signs of dementia are the senior’s own advisors—doctor, lawyer, or financial planner. Unfortunately, these advisors often don’t always have the ability to take action. Both doctors and lawyers, for example, are bound by patient or client privilege; even if they want to inform the family of their suspicions, they may not be able to. Recent changes to Illinois State Bar Association Code of Ethics do allow an attorney to take action to protect a client when there is a reasonable belief that the client has become incapacitated and is in danger. The American Medical Association also is not insensible to this issue, and has guidelines for dealing with patients who show signs of incapacity. Unfortunately, doctors are under pressure to spend minimal amounts of time with patients. Many people are able to ‘fake it’ during a short interview by doctors, lawyers, and financial advisors. It is extremely important that the healthy spouse and/or responsible adult child get actively involved in pointing out to professionals any abnormal acts of vulnerability. This may mean doing something that feels very uncomfortable, but is absolutely critical to get the protection needed. No one will ever know what the family is seeing and experiencing at home unless you tell the story to your trusted advisors and friends. It is dangerous to keep your fears a secret. Almost everyone has a loved one who has been or will be affected by the progressive loss of decision-making capacity. What can families do to recognize the signs of dementia and prevent the financial fallout that often results? First of all, it should be a topic of family conversation early and often, long before Mom or Dad is at risk. Talk about the possibility and how it should be handled. Geriatric care managers and elder care lawyers welcome input from the entire family of their clients. Familiarity with the entire family gives more options if signs of dementia do start to appear, and an atmosphere of open communication can go a long way toward preventing suspicion and family fights later on. Attorneys need to know who among the family the client believes are their ‘honest and reliable adult children’ who may be able to safeguard family finances and provide ongoing care and attention to the situation. Care managers will recommend how best to combine family resources with professional services. Experienced elder care attorneys and care managers can help the family to plan for future financial and health care needs. Most families underestimate both the financial impact, emotional burden, and care needs that will be required due to the dementia of a beloved member of the family. Once a family has discussed options for the future and who might be the best person to take control of Mom or Dad’s finances in the event that they are unable, then an elder care attorney can assist them with the development of appropriate legal documents and Power of Attorney for financial decision-making. These documents give a nominated agent the power to make financial decisions for the affected loved one. The time to work on these plans is while the forgetful one still has sufficient capacity to make a Will, Trust, Power of Attorney for Health Care, Power of Attorney for Property, and any other estate protection plans. Lawyers trained in this area of planning work to make sure that the healthy spouse is not excessively impoverished by long term care expenses. The onset of Alzheimer’s or dementia affects the entire family, and should be discussed as an entire family.After a long hiatus, we’re back to posting regularly on our blog! We’ve been very busy over the past year and can’t wait to share what we’ve been doing with our readers; but first, we want to share some important information about an issue that affects many of the clients who come into our office, and something we’d like to help prevent: When dementia hits the pocketbook. We hope you find this information helpful, and please come back next week to read about the exciting things we’ve been doing in our firm and in the community! The first signs of
Recently, at two different MCLE (continuing legal education) presentations, I spoke on the “Elder Law Essentials.” The goal of the presentation was to distinguish the solutions of elder law vs. the solutions underlying traditional estate planning. I was originally trained as a tax attorney, and my principal estate planning solutions were motivated by the client’s desires to:
- Minimize or avoid estate & gift tax costs; and
- Minimize or avoid probate expenses; and
- Minimize problems at the time of ultimate distribution to heirs/beneficiaries.
- How are we going to maintain sufficient income?
- How are we going to pay for Bob’s health care needs?
- Will I ( the healthy spouse) be forced move out of my home by health care expenses?
Crawford Country Store and Motel—a combination convenience store and motel in Crawford, Colorado. I had chosen to live at this clean and basic lodging during a five-day horse training clinic on the western slope of the Rockies. After I found and entered my room, I dropped my bags and headed for the bathroom. I walked in, turned to my right, and flipped the light switch—nothing happened. “The light bulb must be burned out,” I thought. I tried again—and nothing. Well, I hustled back downstairs to the country store area and told the folks behind the counter that my bathroom light did not work. A young man looked at me, chuckled, and said, “You need to flip the switch behind the towel.” My jaw dropped and I asked, “There’s a switch behind the towel?” He assured me that there was, as he had just used it that morning when he cleaned the room. Shaking my head and wondering about whomever had decided to install a towel rack over a light switch, I went back upstairs to see if this was really true. I put my hand behind the towel and felt a switch. Bingo, the light turned on! I thought about this for a moment… I had a low opinion of the decision to place a light switch “behind the towel”—but then it reminded me of how often in life the real answer to something is hidden from us. The obvious answer is often not the right answer—this is why we need to find those professional counselors, health care providers, and lawyers who know where to find the light switch we need. Imagine for a moment that you suddenly have a diagnosis of some grave physical ailment. You would most likely consider immediately hustling off to see experts places such as the Mayo Clinic or the Cleveland Clinic. Another example: even though we are lawyers ourselves, we often hire other lawyers to give us advice in specific legal problem areas. When we need to hire a lawyer, we seek out an experienced practitioner with a proven record. You see, when I need an attorney, I want the best! We don’t just hire the first person who says, “I’m sure I can take care of you, but I’m going to have to do some research in the area first.” We hire legal counselors and refer our clients only to attorneys who can readily say, “Oh yes, we handle situations like yours every day.” Those legal advocates know where the hidden light switches have been placed. When it comes to dealing with the issues of the frail, elderly, and disabled, Law Elder Law knows where those hidden light switches are. Our areas of concentration are elder law estate planning, disability, Medicaid, and V.A. long term care benefits. Our outstanding Law Elder Law team turns on the lights for our clients every day!I had just checked into the
We all like to save money—especially on legal matters. Millions of people are now using do-it-yourself online legal form services like www.legalzoom.com. To check it out, I went there, too. Their home page proudly raves, “Save time and money… created by top attorneys… helps you create reliable legal documents… we even review your answers and guarantee your satisfaction.” There is even a testimonial from an attorney who says, “As an attorney, I have been pleasantly surprised with the ease and efficiency of legalzoom.” What is not as obvious, at the very bottom of the home page, is their disclaimer of liability. Go ahead and scroll down to the bottom of the page—you’ll see the disclaimer in very light print. It states:
“The information provided in this site is not legal advice, but general information on legal issues commonly encountered. Legalzoom’s legal document service is not a law firm and is not a substitute for an attorney or law firm. Legalzoom cannot provide legal advice and can only provide self-help services at your specific direction. Please note that your access to and use of legalzoom is subject to additional terms and conditions.”The words “additional terms and conditions’ is a hot-link that if you click on it will take you to an even longer disclaimer! The disclaimer guts all of the assurances of reliability and suitability of use that you may have assumed were part of the “actual review of your answers and guarantee of satisfaction.” YOU ARE THE “LAWYER” WHO CHOOSES THE LEGAL FORM! If you decide to be your own lawyer, please understand that legalzoom has the best of all worlds. They advertise that they will provide you with the best form of your choosing and save you money—but if you ever have a problem because of that document, they’re not responsible. You are the one who made the decision about which legal document was right for you and your circumstances. Just yesterday in a meeting with a client, that client exclaimed, “Wow, I never knew that there were so many things to think about in our estate planning.” I responded, “You know, that’s what most people say when it comes to estate planning, disability, Medicaid, or veteran’s benefits. You don’t do this work every day, so you just can’t know all of the issues.” The real value of what any professional counselor does is listen to your description of your circumstances and goals, and then choose the best course of action. There is an old story about a factory which shut down due to an equipment failure. The owner of the factory called a renowned expert to rush to the factory to get things moving. The owner told him, “This shutdown is costing us $100,000 per day!” The expert arrived, walked around the faulty machine, then took out a screwdriver and adjusted a thing or two. Within moments the machine came back to life and the factory began to hum with activity. The owner was thrilled—until he was given a bill for $10,000. He roared, “But it took you less than 10 minutes to fix the machine—it cannot possibly cost $10,000!” The expert calmly responded, “No, it took me a lifetime to know exactly where and how to use that screwdriver. The bill is $10,000—but the value to you is $100,000 per day.” Moral of the story: The right solution for the circumstances often requires a lifetime of preparation.
A number of times I have had clients tell me that they love their adult children, but they have a child who has chosen a destructive lifestyle. Sometimes it’s a mental health issue, or sometimes it’s just a matter of making very bad choices. These parents do not want to abandon any of their children—but they also do not want to give money to fuel the fire that is consuming their child. They come to me and ask me what to do. These are not persons with a legally defined disability—but they will squander all of their inheritance unless their parents find a way to provide “lifetime love and protection” over estate assets. The answer is what I call the Lifetime Love and Protection Trust (LPT). A Love and Protection Trust is designed to be a legal tool to provide protection, motivation, and encouragement for an adult child who is unable to make careful and supportive decisions with his or her money. The LPT works to ensure that your investment in your adult child is used to further your caring purposes, positive values, and enduring concerns for his or her well-being. A professional trustee will follow your written trust instructions and safeguard your property to benefit your child. Trained investment professionals will safeguard the money and work to maximize a reasonable and profitable return on the assets that you have left to be invested. By law and by the trust document itself, the trustee must make prudent and intelligent decisions to protect your child and your trust monies. Unfortunately, it happens all too often that adult children squander their entire inheritance unless you take control and help them by making a final gift of love and protection by using a lifetime trust. The LPT prevents an adult child from foolishly spending, wasting, and losing your hard-earned estate. Your investment in your child is protected from creditors, failed marriages, and other predators. Some adult children consistently make destructive choices and therefore are extremely vulnerable to creditor lawsuits and many other types of legal claims. An LPT can be designed to discourage substance abuse and to provide for the special needs of your adult child. You can and should build protective walls around the legacy that you have chosen to leave your child. Build a fortress with this trust. At its most basic, a love and protection trust will be there for your child long after you are no longer able to be directly involved. Your legacy of love, protection, and sound investment management will give your adult child the best chance to still have money available if and when he or she eventually chooses to seek help to make a positive life transformation.
very carefully designed trusts. Most trusts take the name of the trustmaker—so ordinarily Gladys would have named her trust the “Gladys Kaminski Trust”—but she wanted to have it her way! She wanted to call her new asset protection trust “The Happy Bottom Family Trust.” Unusual, but legally a trust maker can choose any non-deceptive name for a trust. I asked Gladys why she wanted a “Happy Bottom Trust.” Giving me a wink, Gladys flashed a big smile and began her story. “In 1941 I graduated from eighth grade. I worked as a salesgirl at the dime store at 31st Street and Halstead in Chicago. My boss, Mr. Fox, loved to tease me. One day he came over to me and said loudly, “Gladaaas! Gladaaaas! Did you know your name translates as Happy Bottom?” I laughed and laughed. And I’ve been telling that story all my life. Nobody remembers me when just I tell them my name is Gladys. But everyone remembers me when I tell my name is Gladys and that means Happy Bottom.” Now both Diana and I were laughing with her, and we agreed that The Happy Bottom Family Trust now made sense to us. This trust is designed to protect a portion of her assets in the event she ever suffers unending long-term care costs. Gladys is a model of excellent aging. Despite knee replacements in 2001 and 2006, she plays golf with “the girlfriends” every week. They also take an annual golfing trip to Florida or Arizona. I inquired, “Don’t you girls go to Vegas?” She looked up at me with a conspiratorial expression and said, “Oh yes! I need to go to Vegas every year to the bingo convention. I’m in charge of our parish bingo operation. I’ve done that for the last 20 years.” Gladys also serves as treasurer for numerous senior clubs and church organizations. It’s obvious to everyone that this gal is very confident handling her own money and safeguarding other people’s money, too. As her estate planning and elder law attorneys, we are honored that Gladys chose us to serve as her trusted guides as she travels the elder care journey.Meet Gladys Kaminski, a real sparkler! My daughter, attorney Diana Law, insisted that I come into the conference room to meet Gladys. When Gladys enters a room, merriment walks in with her. We exchanged laugh-filled greetings, and then I asked Gladys why she wanted us to do her estate protection planning. She quickly responded, “I don’t want to lose everything to long-term care expenses. Even though I don’t have a lot, I want to make sure that my kids and grandkids can enjoy at least a part of it.” She was working with Diana to prepare an Estate and Longevity Plan. Her goal is to never be out of money or quality health care options as long as she lives. One of the ways that we help clients achieve their goals is the use of