Reflections on Freedom from an Estate Planning Perspective

As we approach the 4th of July and are thinking about the celebration of the Declaration of Independence, we would also like to reflect briefly on freedom from an estate planning perspective.

• Freedom to choose who you want to act on your behalf when you no longer can, instead of the Court deciding who this person(s) will be.
• Freedom to allocate assets to whomever you want, instead of the State of New Hampshire deciding for you.
• Freedom to minimize taxes, instead of burdening beneficiaries who then face adverse tax implications.
• Freedom to protect loved ones and to make their lives easier and less costly in the event of a disability or of a death, rather than having them involved with the Court and other bureaucracies.

Be proactive and celebrate the freedom to plan for yourself and for those dearest to you. Wishing you a happy and safe 4th of July and a wonderful summer!

Common Misconceptions When Only One Spouse Needs Long-term Care

People are frequently unsure about asset protection issues, especially  in cases where only one spouse is in need of long-term care. 

In one case, our client had been told about a five-year “look-back,” and didn’t know whether his home and other assets were protected. He and his wife were also worried about the fact that he had not done any planning. 

Fortunately, and despite common misconceptions, there are times when it is possible to transfer assets between spouses, even though one of them is in a nursing home...

Read case study...

Elder Exploitation

Continuing with the topic of a new law relating to elder abuse that criminalizes elderly financial exploitation, which is not limited to an incapacitated person, here are some of the most common ways in which people exploit the elderly:

• Using a financial attorney as a license to steal.
   
• Treating joint accounts as your own even though you are only on the account for estate planning purposes.
   
• Using another person’s ATM card and/or checks for one’s own benefit.
   
• Threatening victim to get money.
   
• Refusing to obtain needed medical care for the elderly person so that assets will continue to be available for abuser.
   
• With respect to caregiver, keeping the change from errands, falsifying time sheets, spending time on the phone instead of doing what they are paid to do, etc.

New Elder Abuse Law

There is a new law relating to elder abuse that criminalizes elderly financial exploitation…this law is not limited to an incapacitated person.

• Makes it a crime for fiduciaries who knowingly, or recklessly for their own profit or advantage, deprive or take real or personal property of an elderly, disabled or impaired adult for the benefit of someone other than the adult.
   
• Makes it a crime for a person through the use of undue harassment, duress, force, compulsion or coercion acquires possession or control of an interest in real or personal property of an elderly, disabled or impaired adult, or establishes a relationship with a fiduciary obligation to an elderly, disabled or impaired adult that gives the person control or interest in real or personal property or other financial resources.
   
• Prior to this statutory change, unless the incident involved an obvious crime, like a forged check, the police often considered reports of financial exploitation to be family or civil matters allowing the perpetrators to continue the exploitation without fear of criminal liability, which as you can imagine was very frustrating.

Things You Should Know About Elder Abuse Law in NH

Did you know that you have a duty to report elder abuse?

Any person who suspects or believes that an incapacitated person may be the subject of exploitation is required under NH law to file a report with NH Bureau of Elderly and Adult Service (BEAS).  

However, the requirement to report extends to incapacitated adults only. Phone number for BEAS is 1-800-949-0470. The report to BEAS is confidential.

Additional facts:

• According to a 2011 MetLife study of elder financial abuse, as much as $2.9 billion per year is stolen from seniors.
   
• NH is the 4th oldest state in the U.S.
   
• Population of NH residents age 65+ is expected to double by 2025

The Rest of the Story... To Fund or Not To Fund - Are You "All Set?"

As a follow-up to our "tongue-in-cheek" April Fool's Day post, here's an example of an estate planning attorney who drafted a trust, but didn’t assist with any of the funding. The client thought he and his family were "all set" because they had a trust. 

Unfortunately, an unexpected heart attack claimed the client's life, and as it turned out, everything was not "all set." There was nothing in his trust and all of his assets went through probate. His probate estate incurred $20,000.00+ in legal fees to go through the probate process. 

Without funding your trust with assets, your trust will not accomplish your goal of avoiding probate and of making it easier and less expensive for your loved ones and beneficiaries down the road.

To Fund or Not to Fund? (April Fools!)

Instead of telling you how to avoid probate, in honor of April Fools Day, we decided to provide you with a list of how to guarantee that your assets will go through the probate process when you pass away. 

• Own everything in your name only
• Fail to name beneficiaries on all of your accounts, no transfer on death designations either
• Don’t own anything jointly, and if you do own real estate jointly, have it owned as tenants in common (note that only sometimes does owning real estate as tenants in common make sense)
• Create a trust, but don’t put anything in it. We lawyers call it “the funding of your trust.” If you don’t put anything in your trust, there is nothing for your successor Trustee to distribute and then the assets go through probate. Your estate planning attorney should assist you with the funding of your trust.