COVID showcases need to plan for your pet’s future

COVID has taken many human lives, and unfortunately so many of those people left pets without someone to care for them. A recent news story reported on 4 dogs left homeless when their owners both died of COVID. This situation can be easily fixed by making plans for someone to care for your pets if you become incapacitated or die. You can:

1: Have a pet trust prepared. You would name a caregiver to physically care for your pets, and you would name a trustee to see that your caregiver receives what is needed to care for your pet. Ohio permits pet trusts; check with an attorney in your state to see if your state law provides for pet trusts.

2: Have a last will and testament prepared. You would include a provision in your will designating someone to take ownership of your pets, and likely leave them a sum of money to help with food, vet bills, etc. Some problems that could occur when having a will only, is if your estate gets caught up in probate, ownership of your pets and money left for their care might get caught up in probate too. Also, one reason trusts are more common is that there is no oversight in wills to ensure that money left will go towards your pet, or that once money is received, your pet is not then given away.

3. Regardless of you having a will or trust, I highly recommend having an emergency pet care power of attorney prepared. With this power of attorney, you designate people who are given authority to enter your residence to feed and care for your pets if you are incapacitated or in the hospital, or remove your pets to care for them temporarily if you are unable to do so. One instance involved the agent taking possession of the pets until a family member of their owner, who had died, could get into town. The power of attorney could be used to authorize a landlord to enter your apartment, or the police to enter your house if necessary.

If you have any questions regarding estate planning for your pets, email me at julie@juliemillslaw.com. For additional reading, see my pet estate planning blog posts here.

Advice for the End of a Not-So-Normal Year–Review your Will, Trust, Healthcare Documents

In a “normal” year it would be good advice to suggest that you review your estate plan, which could be your will, your trust if you have one, your healthcare documents, among other documents, at the end of the year.  With 2020 and what is not a “normal” year, this advice takes on more meaning.  Not surprisingly, much of the advice given in my blog post is due to the COVID-19.  Generally, COVID-19 or not, you should review your estate plan each year. 

Reason #1: Things Change

Our assets and family dynamics change over time. This is inevitable and applies to everyone.  Review how your assets might have changed and see if the changes are covered in your documents.  Did you move, and deed your new house to your trust?  If family dynamics have changed, did you check to see if your will needs changed also?  The biggest change would be divorce, and while some documents treat your ex as having predeceased you, some will still treat him or her as a beneficiary if the former spouse is not removed from the document.  Other dynamics that might affect your choices are the death of someone you’ve named as a beneficiary or as a fiduciary (such as an executor of your will); the birth of a child or grandchild; the divorce of others such as the guardians you have named for your children. 

The pandemic has created several changes for many of my clients, particularly the composition of households. Now, households are accommodating the needs of elderly family members moving in rather than moving into assisted living, college kids attending school from home, and other changes.  These changes can affect who you choose to list as a power of attorney now that some family members might be living closer or further away, how you structure what happens to your house if you die since your household might include parents or others who might wish to remain in the home. 

Another change is the law, specifically the SECURE Act.  Your 401k or IRA will be affected by the SECURE Act, it is just a matter of “how.”  The Act significantly changed the timing of distributions for inherited IRAs and changed rules regarding your beneficiaries.  Check to see who is listed as beneficiary and whether that should be changed, whether a conduit trust is still beneficial, and other considerations.

Reason #2:  New Considerations for Healthcare Documents

The pandemic has created new considerations that might affect your thoughts about your healthcare documents, specifically, your living will (whether you want artificial life support or not) and your healthcare power of attorney.  These are critical documents that are necessary in managing your medical affairs should you become sick or incapacitated.

First, consider who you have listed in these documents to make decisions for you.  Generally, people listed should be able to be “bedside.”  You might have listed your brother across the country as your healthcare power of attorney, but will he be able to travel to get to you?   Would a trusted friend or other family member who lives close to you be a more appropriate choice during a pandemic when there are greater restrictions on, and requirements prior to, travel?

Second, clients have expressed concern regarding their living will and whether the fact that they state “no artificial life support” means they will not be put on a ventilator if they need one, if diagnosed with COVID-19.  The Ohio living will document states that, if death is only being prolonged by someone in a terminal condition or permanently unconscious state, then two physicians can determine to end artificial life support, or “pull the plug.”  With COVID-19, a ventilator is used as a course of treatment, not to prolong death, and will be used to treat you.  The living will document does not prohibit artificial means for breathing or keeping someone alive; rather, the document reflects your wishes to permit doctors to cease using artificial life support if no reasonable course of treatment will help and death is simply being prolonged. 

Conclusion:

It is a gift to your family to plan what you wish to happen if you are unable to take care of your medical or financial affairs, and to plan what you want to happen to your assets when you die.  I hear so often about how difficult these decisions are for family to make during a period when they are grieving your death, or scrambling to figure out how to pay your bills if you are incapacitated.  The pandemic might have many people wanting to discuss anything but death and incapacity, but it has also forced everyone to consider “what if?” with their own mortality, and consequently their family’s future. 

If you would like to discuss wills, trusts, healthcare documents, or any estate planning questions, feel free to email me at julie@juliemillslaw.com.  I am happy to help you plan and prepare.

Happy “National Mutt Day”!

December 2nd is recognized as #National Mutt Day, a day all about “embracing, saving and celebrating mixed breed dogs.” My boy Bill (pictured), is beagle-mix and has been embraced and celebrated since the day we rescued him.

Our pets are family. As with family, we want to make sure they will have what they need should something happen to us. As an attorney experienced in pet estate planning and who is involved in animal welfare organizations, I have seen pets taken to shelters after the pet’s owner dies because surviving family don’t want the pet, and no plan was put into place to care for the pet. Providing for your pets now, through a will or trust, will ensure that your pet goes to someone you trust instead of a shelter.

Check out my previous blog post on pet estate planning, What happens to my pet if I die? to see how you would plan for your pet, then contact me to get started at julie@juliemillslaw.com.

Will you have to pay your parent’s nursing home bill?

I have written before on how common it is for family members to unwittingly make themselves liable for a nursing home bill when they sign admission papers for a loved one going into a nursing home (“Has a nursing asked you to sign?”). Although it is against the law (42 C.F.R. 483.15(a)(3)) to require a 3rd party to take financial responsibility for the bills of a nursing home as a condition to admitting that person into the facility, it happens frequently. Mom is sitting there, about to move into the facility, Daughter is with the admissions employee who is asking her to “sign here” so Mom can move in. I had it happen to my family member, and I’ve represented clients who signed as a “Family Representative” only to discover they actually signed to accept financial responsibility for all outstanding nursing home bills.

A recent Ohio case finally sheds some light on the law and specific steps that might instruct how to avoid becoming liable for a loved one’s nursing home bills. The case is Village at the Greene v. Smith, 2020-Ohio-4088, and I’ll summarize here how it is applicable to readers facing the possibility of helping a family member or loved one move into a nursing home.

Despite it being illegal, many nursing homes have provisions in their admissions agreements where the accompanying family member (or sometimes a family friend) signs as “Family Representative,” or “Responsible Party” described as someone who agrees to “secure financial information such as Medicaid and Medicare.” These agreements typically include third-party guarantor, or personal guarantee, language. If you sign as the “Family Representative” when you are admitting your mom, or dad, or whomever, into the facility, you’ve likely agreed to be responsible for all unpaid nursing home bills.

In the Village Green case above, Son accompanied Father to the nursing home when he was being admitted. Son correctly refused to sign in his individual capacity, as Family Representative or any other form. Son did sign, however, in his capacity as Power of Attorney for his father. Essentially, he signed on behalf of his father. This would look like “John Doe, POA for Dave Doe” or power of attorney, or agent, etc., instead of signing as just “John Doe.” Eventually Father died and had unpaid nursing home bills, where the nursing facility then brought suit against Son. The appeals court determined that Son, who signed as power of attorney for Father and did not sign in his individual capacity, could not be held liable for his father’s unpaid nursing home bills.

ADVICE

  1. Do not sign your name anywhere on a nursing home admissions agreement, or any additional or ancillary paperwork, unless you are certain it is for contact purposes only. See #3 below.
  2. If possible, have the person being admitted sign the document. If the person is competent but simply physically unable to sign, they can sign an X or something indicating signing. If this isn’t possible, try to have had a power of attorney prepared prior to admission into the nursing home. If you do this, then sign everything as power of attorney. “Jane Doe, POA.” This includes email signatures: “Thank you for the update. Jane Doe, POA.”
  3. If you don’t have power of attorney, and find yourself in a position where you are being asked for your signature and given assurances that you won’t be held liable, write after your name “My signature is not a personal guarantee for financial responsibility.” Get a copy immediately of the signed document, and note the name of the person who told you that you would not be held liable financially. In the situation with my family member, he was told by the admissions employee that “Oh, this is just a formality so we have a family member to contact. We never pursue payment.” Yes, the nursing home pursued the five-figure payment.

Helping a parent or family member through the nursing home admission process is stressful and emotional. Don’t set yourself up for future stress by unknowingly agreeing to be financially responsible for the nursing home bill. Unwinding yourself out of liability can be nearly impossible, and it is far better to not incur liability from the start.

Your role as trustee of a trust

You have been named Trustee of someone’s trust. Here is a very basic overview of your responsibilities as trustee, under Ohio law.

The person who made the trust–the “Grantor,” or some people use “Settlor”–must have thought of you as a responsible, trustworthy person to designate you as Trustee of this person’s trust. The trustee has many responsibilities in managing and administering a trust, and shoulders some personal liability as well. If the Grantor has died and you are the first successor trustee, this list will provide you with a basic understanding of what you need to do. You have many responsibilities, and my advice is to seek legal counsel with an attorney experienced in trust administration.

  1. Again, meet with an attorney unless you are familiar with the Ohio law. A trustee has 60 days to inform beneficiaries of the existence of the trust. Sixty days from what date? Who falls under the definition of “beneficiary,” and are all beneficiaries created equal? Do I send the entire trust, and only if a beneficiary asks for it? Know the answers to these and other responsibilities with keeping beneficiaries informed.
  2. Gather all of the decedent’s estate plan documents, 10 copies of the death certificate, and the previous 3 years (if possible) of tax returns. Gather together other important documents.
  3. Read the trust document. Make a list of the beneficiaries, distribution ages, charities named, any restrictions made by Grantor. Son might get a distribution, but does he need to pass a drug test first? Does Daughter receive an increased distribution if she makes certain grades in college?
  4. Determine assets that are held by the trust and get date-of-death values. Deeds to property will show if the property is held by the trust, as will titles to cars and boats. Review all assets with beneficiary designations to see if the trust is a beneficiary, such as IRAs, life insurance, payable/transfer on death bank accounts, stocks and bonds. Also look for shares in any business interests such as LLCs, corporations, partnerships.
  5. Determine if probate will be necessary. For most of my clients, a reason for having a trust prepared is the desire to avoid probate. The trust is then “funded” by deeding property in the name of the trust, or re-titling assets into the trust’s name. Sometimes people forget to change ownership of an asset such as a checking account or real property to their trust, or die before getting the chance to. Probate then becomes necessary to transfer ownership for those assets.
  6. Once you know what assets the decedent owned and their values, pay all bills owed. Before you sit down and start writing checks to creditors, be sure that the bill is legitimate.
  7. Get a CPA. The decedent might have died before paying taxes and you, Trustee, will need to file the decedent’s final tax return. Some trusts have to file tax returns. Consult a CPA to determine what, if any, taxes are owed by the decedent, the decedent’s estate, and possibly the trust.
  8. Distribute assets, terminate the trust. The distribution of assets comes *last.* After all bills are paid, tax returns filed and taxes owed are paid, and after probate closes if probate is required, then the trustee can distribute assets according to the terms of the trust. Once the assets are distributed, or if the trustee determines that the value of assets in the trust is low enough that it makes administration of the trust impractical, then the trust can be terminated.

A trustee can shoulder personal liability for improperly administering a trust, so consult with an attorney and a CPA if you are not familiar with the Ohio Trust Code and trust administration. The list above is a basic overview and is not legal advice. If you have questions about your role as a trustee, contact me at julie@juliemillslaw.com, or visit http://www.juliemillslaw.com for additional resources.

The Estate Plan List (to get you started)

Will

Do you have a will?  If yes, is it up to date with people you chose to serve as executor and guardian?  Do you want to add or remove any beneficiaries?

Financial Power of Attorney

Do you have a durable financial power of attorney that names trusted people to take care of your financial matters if you are unable to?  How will your bills get paid if you are in the hospital?

Living Will

A living will is a healthcare document that details your end-of-life decisions.  Do you want to be kept alive by artificial means?  Are there some procedures you want to refuse (typically for religious reasons)?  For your living will to take effect, two doctors must agree that you have a terminal condition or are in a permanently unconscious state, and death is being prolonged with no reasonable chance for recovery.  The people you list in this document are merely for contact purposes–they have no decision-making authority.

Healthcare Power of Attorney

A healthcare power of attorney allows you to name people who will have authority to make healthcare decisions for you if you are unable to do so.  If you have a living will, your healthcare power of attorney cannot override your wishes in your living will.

Life Insurance

Why have life insurance?  Obvious reasons include providing money to those dependent on your income if you die.  Life insurance can also be used to pay off your debts so that you don’t burden your family with your financial liabilities, such as medical debt if you were hospitalized or had a lengthy illness.  You can purchase a policy designed to pay off the mortgage on the house if you want to be sure your children and family can keep the family home.  If you own a business, life insurance can be purchased to enable your business partners to buy out your shares and keep the business running smoothly.

There are more components to an estate plan, but the list above explains your first considerations when starting to plan.  This list is specific to Ohio.  Documents described above might be different in your state.

If you have any estate planning questions, email me at julie@juliemillslaw.com.

 

 

Coronavirus and your healthcare decision documents

In Ohio, we have “advance directives” that include a living will and a healthcare power of attorney.  A living will (not related to a Last Will & Testament which distributes your assets after you die) is an end-of-life document that details what medical treatment you want or don’t want if you are dying.  Death must be imminent.  Any treatment is only prolonging death.  A healthcare power of attorney gives a person you choose the power to make healthcare decisions for you if you can’t make them yourself.  This person cannot contradict your living will.

Most living wills state that we don’t want to be kept alive by artificial means such as a ventilator if death is imminent and there is no reasonable hope for recovery.  The scenario that comes to mind is one where someone’s organs are shutting down, breathing is labored, death is near, and the last thing we want is to be hooked up to a ventilator and have a machine breathe for us.  We state these wishes in our living will, and hopefully our agent in our durable power of attorney for healthcare ensures that our wishes are followed by medical personnel.

Some people are reconsidering their living wills in light of the coronavirus.  The need for a ventilator to help us breathe seems common for many of those being treated for coronavirus/covid-19, and there is concern that if you have a living will stating “no ventilator,” then you won’t get one if you are being treated for coronavirus.  This not true.

A living will applies only when death is imminent and a machine, such as a ventilator, will only prolong your death.  With coronavirus, a ventilator is used as treatment for recovery, and ventilators remain in use as long as there is a reasonable hope for recovery.  It is used as treatment to counter the effects of what the virus is doing to your lungs.  That is not a situation where a machine is simply prolonging death.  When you sign your living will, you are not stating that you do not want a breathing machine or ventilator under any circumstance.  A living will is not a document that doctors consult to determine a course of treatment.  It is a document that is used in determining end of life decisions.

If you have any questions regarding healthcare documents, and how coronavirus/covid-19 might affect when the documents are used, please email me at julie@juliemillslaw.com.

 

Before you die…

Or this post could have been titled “Ease the burden of loved ones.”  Because I’m an estate planning attorney, the “Before you die…” advice I’d typically give would be to have a will or living trust plan prepared.  I certainly always recommend that advice.  This post, however, is different.

I recently read an article I loved, “You Need to Make a ‘When I Die’ File–Before It’s Too Late.”  The article speaks to the side of estate planning that I rarely participate, and that’s the grieving family part of planning for what happens after you die.  I help my clients get all the documents they need, and advise on decisions that need made.  What struck me about the suggestions in this article though were actions to take that speak to people you love.  The article adds two items to the typical estate planning checklist, i.e., an ethical will and letters to loved ones: “[W]here a legal will transfers assets, an ethical will transfers immaterial things: your life lessons and values.”

An ethical will supplants a traditional will, and might be used to explain why you chose one child to serve as executor over the other child, or why you chose close friends as guardians for your child over your siblings.  “Letters to loved ones” is self-explanatory, and I highly recommend it if you have children who might have difficulty remembering you if you die when they are young.

As the author states:

The point of all this is to make a difficult thing like dying or loving someone who is dying less difficult. In that sense, creating a When I Die file is an act of love. It will always be too soon to tell your story and let people know how much they mean to you, until it is too late.

If you have any questions about estate planning, email me at julie@juliemillslaw.com.

Has a nursing home asked you to sign?

Your mother, father, aunt, etc., is moving to a nursing home.  You accompany your dad, for example, so he won’t be going through this alone, and he might need help completing paperwork.  The nursing home asks, or requires, that you sign as hi—STOP!  Don’t sign!

The nursing home asks you to sign as your dad’s “personal representative.”  Or to sign as guarantor.  Or to sign anything.  What you are likely doing is signing an agreement to be held financially responsible if your dad, through his insurance or Medicaid, does not or cannot pay his bill.  This might happen if his Medicaid application is not approved, or if insurance denies his claims, or any number of reasons.

But, the nursing home simply wants you to sign as the “responsible relative,” the person who will take steps to see that Medicaid or insurance pays your mother’s nursing home bills, right?  Or as the point person who will track down information, call the insurance company, provide information, right?  You would certainly agree to help your mother this way.  The problem is that you have unwittingly agreed to also be financially responsible to the nursing home for your mother’s bills.  Just ask Judy Andrien.

This practice by nursing homes occurs regularly, at least according to what I see and hear.  It happened to my family member, where the nursing home left his sibling lying out in the hallway on a gurney until the family member signed as “personal representative,” assuring this family member that “oh, it’s just a formality–we never pursue payment.”  They did pursue payment.

It is illegal under the federal “Nursing Home Reform Law” (summarized here) to require or request someone to sign as a guarantor as a condition of someone (usually a family member) being admitted, or of being permitted to continue to stay.  Nursing homes often get “crafty,” however, by asking family to voluntarily sign, whether as personal representatives, the responsible party, guarantor, etc.  “It’s just a formality….”

As an attorney, I have handled matters where stunned family members come to me with 5-figure bills from the nursing home, where the nursing home says that they signed as a financially-responsible party and now the bill is due.  At this point, one of the the only arguments is that my client did not sign voluntarily which can be a difficult argument to make, not to mention costly in attorney fees.

My advice if you accompany someone other than your spouse to a nursing home to be admitted?  Do not sign anything.  Period.

If you have any questions, contact me at julie@juliemillslaw.com.