Generation Law is an Illinois-based firm focusing on estate planning and elder law issues. We help families cope with, and prepare for, legal issues related to estate planning, living wills, elder law and long term care planning.
When we marry, we promise to love each other in sickness and in health without really thinking too much about what the “in sickness” part could mean down the road. At Generation Law, we see often see how love is put to the test in later years, when age and illness create heavy emotional and financial burdens. Nowhere is this clearer than when someone you love has Alzheimer’s disease.
Several years ago, our client Mike came to us for help in caring for his beloved wife Laura, who was suffering from Alzheimer’s. By that time, Laura had begun hallucinating, constantly imagining she saw her deceased mother and grandmother on every street corner. She woke Mike several times a night with her imaginings, and he lived in fear that, at some point, she would simply wander off. When we sat down with him, he was completely exhausted from the demands of caring for Laura and on medication to deal with the stress. Still, he couldn’t bring himself to accept that Laura needed to go to a nursing home.
Caring for someone with Alzheimer’s is an incredible act of love, but knowing when it’s best to share that care also takes love and a bit of letting go. With some encouragement, Mike came around to the fact that the best thing he could do for Laura was to become her caregiving advocate, rather than her actual caregiver. He found a good nursing home for her, one with cheerful rooms, friendly staff and fresh flowers every day. Laura was able to get the full-time care she needed, and Mike was able to see her each day and also have time for himself and other family and friends. We also found a way for Medicaid planning to help Mike cover Laura’s nursing home costs, so that he still had enough to live on.
Things went well for a while until two years later, Mike got sick, too. He was diagnosed with ALS and soon needed a caregiver of his own to help him manage at home. The one positive was that, because of the estate plan he had put in place when Laura went into the nursing home, Mike had enough income to hire a full-time caregiver so that he was able to remain in his own home. He had also made a provision in his estate plan for his children so that, if he died first, they could use the money to supplement Laura’s Medicaid coverage with anything she might need. A year after his diagnosis, Mike passed away surrounded by Laura and his family, and secure in the knowledge that his beloved wife would be well taken care of.
Caregiving is an exhausting and often overwhelming job, but the right advance planning and support can lessen the burden and help you and your loved ones live better under difficult circumstances.
What if one morning you woke up and couldn’t get out of bed, or put your thoughts together to make yourself understood? If you or someone you love lost the ability to care for yourself, would your interests be protected?
If you or a family member lost the ability to care for themselves, what would you do to help them make decisions? One way to prepare is with a power of attorney (POA), a document that acts as a kind of permission slip to give someone the authority to make decisions on your behalf if you become incapacitated. This simple document can save you time, money, frustration and embarrassment. To avoid common mistakes, here are a few things to keep in mind when creating powers of attorney.
Don’t wait to create POAs
While a heart attack or stroke can strike at any time, dementia develops slowly over many years. According to the Alzheimer’s Association, changes in the brain related to Alzheimer’s can start 20 or more years before the first symptoms show up.
Since you can only sign a POA (or any legal document) if you are legally competent to do so, don’t wait to put one in place. While a diagnosis of Alzheimer’s doesn’t automatically prohibit you from signing a POA, you still need to have your wits about you. At Generation Law, our first step is to try to get authorization from your doctor stating that you’re competent to sign for yourself. However, that’s not always possible, depending on how advanced the disease is. That’s why it’s so important to create the necessary documents sooner rather than later.
Avoid DIY documents
To save a little money, many people try to create powers of attorney by downloading a document from the internet. This is a recipe for disaster that can have lasting consequences for you or a loved one dealing with Alzheimer’s. Here’s why it pays to work with an experienced professional to create these all-important documents.
Tailor your POA to your needs. A power of attorney should represent the specifics of your unique circumstances. A generic document from the internet doesn’t do that. Instead, the language in these documents is often ambiguous, making them ripe for court challenges. Sometimes, you find out that these forms aren’t legally valid; by that time, it will be much too late.
Choose the right forms. There are different types of POAs for different needs. When people try to create POAs on their own, it’s easy to use the wrong form mistakenly. For instance, if you need Medicaid planning to help cover the costs of nursing home care, a special Medicaid power of attorney is required. Otherwise, you could wind up losing out on benefits that can help cover the staggering costs of long-term care.
Make sure they’re properly signed. The other frequent problem with DIY POAs is signing them incorrectly. A power of attorney form must be signed by the correct people at the correct points in the document, and these requirements can differ by state. Without the correct signatures, your POA can end up being useless when you really need it.
Sadly, when issues with POAs are discovered, it’s usually too late to do anything about it. Once you or your loved one are already incapacitated, the only recourse is typically to create a guardianship through the courts. This process is extremely costly, time-consuming and invasive, since it requires public discussion of highly personal matters.
Taking control of your future
A POA is a lot like a parachute – if you don’t have it when you need it, it’s too late. Having an experienced attorney prepare your powers of attorney can save you and your family endless heartache down the road by ensuring that, when things get tough, you have a person you can trust to act on your behalf. Please get in touch with us anytime to help make sure your POAs are set up correctly.
It’s heartbreaking to see a loved one battle dementia or any other degenerative disease. On top of the emotional toll it takes, caregiving for a loved one is a full-time job – and life often gets in the way.
Caregiving can range from simple supervision to ensure that a loved one does not harm themselves because of the forgetfulness of dementia to taking care of all of the daily living activities of a bedridden family member. Since many families cannot afford in-home care, they cobble together coverage among family members to care for their loved one. The Medicaid system is not set up to help families of limited means to keep family members at home. Nonetheless, many feel it is their duty to never place a family member in a facility unless it is medically impossible to keep their loved one at home, stretching the bandwidth of the caregiver.
Caregivers are not just caregivers: They are mothers and fathers, sons and daughters, husbands and wives. Many hold full-time jobs and are also caring for a minor or several minors. In addition, caregivers often bear the brunt of the financial responsibility of caring for their disabled loved one, as well as the rest of the family. These financial costs are exacerbated by the need to take time off for doctor or other medical appointments, as well as having to coordinate a loved one’s financial and legal matters.
Even when it becomes medically impossible to care for a disabled loved one at home, the caregiving does not end. Caregivers still must ensure that the facility personnel are appropriately caring for their loved one and that the facility is being paid from the loved one’s funds or, if not, that Medicaid benefits are secured. In addition, caregivers often have to coordinate Medicare and supplemental health insurance coverage. The responsibilities of a caregiver are extensive, and family members that are not directly involved with the care often question or second-guess their efforts.
So how can caregivers manage these responsibilities while providing for their loved one appropriately? Self-care, keeping lines of communication open with other family members and enlisting others to help shoulder the burden are all important, but often missed or neglected because of the enormity of the task of caregiving. Without the right support, caregiving can lead to family conflict, burnout or, even worse, the caregiver becoming ill as well. To achieve a bit of respite, caregivers may wish to consider enlisting other family members to help manage financial and legal matters in addition to helping provide care. An experienced professional can assist with legal issues, ensuring loved ones receive the care they deserve now and have their wishes carried out when they’re gone.
If you or someone you know is struggling with the demands of caregiving, you’re not alone. My colleagues and I can help with issues like Medicaid planning to pay for long-term care or obtaining legal authority over an elderly parent’s finances. By finding the best solution for your unique situation, our goal is to make a tough situation a little bit easier for you and your family. Get in touch anytime to discuss how we can help.
Want more caregiving tips? Learn how to make elder care more bearable and less stressful in Generation Law founder Ben Neiburger’s book “Brighter Skies,” which offers 10 guiding principles for caregivers. Get your copy here.
If I pay for my mom’s medication, will I still have enough to pay my daughter’s college tuition bill?
Will I be able to make my son’s Little League game after taking my dad to the doctor?
How do I find time to take care of myself?
For many Americans, these kinds of questions are the new normal. Nearly half of all adults in their 40s and 50s are sandwiched between caring for an aging parent while also caring for a young child or supporting a grown one. In fact, one in seven middle-aged adults now financially support both their parents and one or more children. The financial and emotional strain on the so-called “Sandwich Generation” is considerable, but there are ways to ease that squeeze and make the demands on you as caregiver more manageable.
Have “the talk” with your parents
While you may be prepared to pay for your children’s college education or your own retirement, you may not be in a position to take on the expense of caring for your parents. That’s why it’s so important to talk with them about the road ahead. However, according to a survey by Care.com, less than half of baby boomers have spoken with their parents about medical treatment, their wishes when they can no longer care for themselves or how to pay for long-term care. In fact, the survey showed that the majority (54%) would rather have the “sex talk” with their kids than talk about senior care issues with their parents.
So when is the right time to have “the talk”? Many senior care experts recommend using the 40/70 Rule,® which says that by the time you’re nearing age 40 and your parents are nearing 70, you should sit down with them to discuss expenses, financial choices, long-term care and their wishes down the road. By planning now, you can help prepare for what’s to come and ease the burden on yourself and other family members.
Make a plan NOW
The 40/70 Rule is also a good rule of thumb for talking with an attorney or estate planner who specializes in elder care and long-term planning. They can discuss financial and healthcare options with you and help you and your parents create or update vital legal documents, including:
A will: To let you decide the who, what and when of how your estate will be divided when you die.
A trust: To help you manage property and assets and make sure they’re distributed according to your wishes after you’re gone.
Power of attorney: To allow you to designate someone to make legal decisions on your behalf if you become incapacitated.
If your parents live beyond the age of 65, chances are they’re going to need some form of long-term care. As you might imagine, the costs for this are considerable. The cost for nursing homes, in particular, can be astronomical, coming in at $8,365 a month on average for a private room and $7,441 a month for semi-private. Planning ahead can help give you more choice and control over how to handle the cost of long-term care as well as where and how your parents receive services. Here’s where to start:
Create a financial plan. Consider the kind of care you or your parents might need, such as in-home care, assisted living or skilled nursing, and plan now to make the money last as long as possible.
Make the most of Medicaid. A solid Medicaid plan is essential for Medicaid planning to avoid being denied or – even worse – having to pay back benefits later.
Factor in all benefits. Leave no stone unturned when it comes to tapping available sources of income, including Veterans Administration benefits, Medicare and Medicaid.
Take care of yourself
The biggest danger for caregivers stuck in the middle is the risk of putting everyone else’s needs first and neglecting themselves. Caregivers often don’t get enough sleep, skip exercise and don’t take the time to make healthy meals for themselves. So it’s not surprising that between 46% and 69% of caregivers are clinically depressed, according to Family Caregiver Alliance.
While the self-sacrifice may seem worth it, it takes a heavy toll, leaving you drained, prone to illness and constantly stressed. So try to remember that it’s okay to take time for yourself. In fact, it’s better for your loved ones, because when you’re feeling well, you’re better able to care for them. Try to set aside some time each day to do something you enjoy, whether that’s taking a walk, streaming a movie or indulging in some retail therapy. By taking care of yourself, the people you love are better cared for, too.
Know when to ask for help
If you or your parents need a hand sorting through estate planning and care options, we’re here to help. Give us a call.
On May 21, Ben offers tips on how to keep your kids from fighting after you’re gone (and while you’re going) during “Family Feuds,” presented by the Cook County Farm Bureau in Joliet, Illinois. It’s a rare chance to see Ben speak to the general public – don’t miss it.
I do not know an attorney or estate planner out there who does not have a horror story about a client who tried to draft a will or trust on their own. While the cookie-cutter documents you can find online may seem like a great way to save money, they almost always spell disaster. There are just too many things that can go wrong – from the way the documents are worded, to the requirements for how they need to be signed and witnessed in order to be valid.
One particularly unfortunate case I had involved two elderly parents, both of sound mind at the time, who created two powers of attorney (POAs) – one for health care, the other for property – using do-it-yourself online documents. Unfortunately, on the property POA, they entered the date incorrectly and essentially invalidated the document at the time they signed it.
As time passed, one parent mentally declined and needed to go to a nursing home. The family came to us for help with Medicaid planning and advice on protecting their assets. That is when we realized the POA was completely invalid, and without that authority, there was nothing anyone could do. We recommended that they file for guardianship, but they declined to spend the time and money to petition the court and allow access to their personal affairs.
As a result, the family wound up paying over $60,000 in nursing home costs that could have been avoided if they had spent the smallest fraction of that to have an estate planning attorney help them create a proper and valid document. Do-it-yourself is great for a lot of things, but estate planning is not one of them. Working with a professional to take care of basic estate planning upfront can save you a lot of time, money and stress in the long run.
Are you haunted by what you have or haven’t done with your will? Many people who have had a will drawn up confess they aren’t really sure what they signed. Others don’t follow through on important next steps that cause problems later. The bottom line is, it’s important to get estate planning right. Otherwise, your family can wind up paying the price for it later in money and heartache, and your wishes won’t be carried out when you’re gone.
While do-it-yourself may be fine for home repair, estate planning can be complicated. That’s why it’s important to work with someone who knows what they’re doing. An experienced professional can help you put your affairs in order and avoid common mistakes like these.
Mistake #1: Not understanding your plan
The most common mistake by far is not understanding your estate plan. Unfortunately, what may seem like legal gobbledygook can have huge consequences down the road if you don’t understand what you’re signing or what else is needed to execute or maintain your plan. A Generation Law survey found that 32% of people feel unprepared to handle end-of-life issues. Still, the need for a will is undeniable, and while you don’t need to speak legalese, you do need to understand the basics.
The solution is to work with an attorney who can explain things to you in language you can understand. It also means being an advocate for yourself. Speak up and ask questions, rather than relying on your attorney to include everything you need and want. It’s vital that you understand how your estate plan works, so have your attorney walk you through it, and take notes on the decisions you make together and any required next steps for you.
Mistake #2: Not updating the beneficiaries in your will
Think fast: When was the last time you updated who gets what in your will? Five years, 10 years, never? Once you create a will, it’s important to review it every couple of years and after major life changes. Otherwise, your assets could wind up with someone unintended, like an ex-spouse or the estate of someone who’s died.
Keep in mind that your will doesn’t cover assets that have their own separate beneficiaries, like retirement accounts, annuities and life insurance. So when you update your will, be sure to also update the forms for your other assets. Beyond that, if there are other life changes, like a new job, a new home or changes in net worth, it’s time to review your plan again.
Mistake #3: Trust issues
Most people think a will controls how all of their assets will be distributed when they die. The truth is, your will doesn’t include jointly held assets, like a house; assets with designated beneficiaries, like life insurance; or assets that are held in trust, like a brokerage account. To help protect these assets, your estate planner may suggest setting up a trust. Picture a trust as a bowl of candy – the assets in the trust are pieces of candy, and the bowl provides instructions on who can eat the candy and when.
There are a variety of trusts for a variety of purposes, like providing for the care of a disabled adult child. Many people create what’s called a living trust, or revocable trust, to protect their assets from the time and costs of probate court. One common mistake, however, is that people neglect to transfer new assets into their trust over time. Just like beneficiary designations, assets like real estate, vehicles and financial accounts require updating paperwork to reflect they’re now part of the trust; otherwise, your family can wind up dealing with legal headaches after you die. Your estate planner should walk you through the necessary steps so you can reap the benefits and avoid the pitfalls of creating and maintaining a trust.
Sounds like a plan
These are just a few of the common mistakes people make in estate planning. The fact is, you can avoid all of them by working with an experienced estate planning attorney, someone who will take the time to explain your plan to you in plain English and help ensure your assets are distributed according to your wishes. To get started, give us a call.
Increased digitalization has led to a new hiccup in estate planning: how to transfer digital assets when you die. Simply giving someone your username and password for all your digital accounts is not enough. Since the goal of estate planning is to communicate who should get your assets after your death and establish an effective and efficient framework to do it, digital assets need to be part of that plan. Here are three important steps to take.
Understand what counts as a digital asset.
When discussing digital assets, most people immediately think of personal or work computer files or online social media accounts. The world of digital assets extends far beyond social media, Word documents and Excel spreadsheets, however, including things like valuable domain names, cryptocurrencies, online storefronts, website gateways to financial assets, contact lists, cloud storage, digital medical images and files, digital photos and music, subscription accounts, and blogs.
Make sure your heirs have legal authority to access your accounts.
So, what makes transferring digital assets at death so problematic? Setting aside the practical issues posed by tracking online accounts and/or safeguarding usernames and passwords, the act of giving someone your digital account credentials at death does not necessarily mean that they have the legal authority to access those accounts. Technically, heirs could be accused of hacking for trying to access a loved one’s digital accounts after death, even if that’s what the person intended! In addition, most people don’t realize that ownership rights for most digital assets are typically set when agreeing to Terms of Service Agreements (TOSAs) with online providers. TOSAs routinely prohibit the transfer of online accounts to anyone else upon your death. Without the proper legal authority, a third party accessing your accounts may violate the provider’s TOSAs and could lose access to the account.
Work with an estate planning firm that’s knowledgeable on the latest laws.
Under Illinois law, fiduciaries can have access to a person’s online accounts, manage them or close them once they die. However, your estate planning documents must contain certain language specifically granting the fiduciary access to these digital assets.
If you’re not sure whether your estate plan grants permission for your fiduciaries to access your digital assets, or whether it includes clear instructions on how to handle specific digital assets at death, our attorneys can help. We can also review the terms of service agreements for your online accounts to help you understand if and how others can receive permission to access the account. Please get in touch anytime to get started.
Picture the V.I.P. pass: Mr. Peabody – The Afterlife Tour – ALL ACCESS.
When the music finally stops, will family and friends cheer or boo at the estate plans you have or haven’t left in place? In today’s digital world, people increasingly live their lives online. The fact that so many of our valuables are now also online means we need to provide access to digital as well as traditional assets after we’re gone.
When it comes to digital estate planning, there’s more at stake than just your collection of “Dead” downloads. Digital assets cover a pretty wide spectrum, encompassing all of the valuable information on digital devices like computers and smart phones. That includes online photos, credit card reward points, email and social media accounts, financial assets, brokerage accounts and even cryptocurrency.
Digital assets have a real monetary value – one survey estimates the average person has over $35,000 in value on their digital devices. But even if you’re not rolling in bitcoin, many of these items have huge sentimental value. Family photos, videos and personal letters are irreplaceable memories that your kids will want to access (along with those photos on your Facebook feed). So how do you pass them along?
Passing on what you can’t see
Digital assets present a unique set of challenges that traditional estate planning just doesn’t cover. First, it can be difficult to track everything down online; unlike traditional valuables, you can’t just go through a desk drawer or visit a bank branch to find them. Plus, most digital assets are password-protected, so if you don’t have the password, you’re out of luck.
If you handle all your bills online, when you die, will your spouse know how to access the accounts to keep balances up to date? Without access to these, bills may go unpaid and services like gas and electric can be suspended. There could also be other assets left hanging. Can your spouse log in to close down sites that have personal information, like bank account and credit card numbers? Dormant accounts are a natural target for hackers, putting you and your family at risk for identity theft and credit card fraud.
Digital assets have unique challenges and restrictions
It can be challenging to know what and how to include digital assets in a will, particularly since sensitive information like usernames and passwords could become public during probate. There are also complex questions of ownership surrounding these assets. For instance, according to most of those Terms of Service Agreements you signed by clicking “I Agree” without actually reading them (because who does?), online accounts are non-transferable, leaving your assets in permanent limbo.
Even if you have an existing estate plan, it’s bound to need updating to account for digital assets if it’s more than a few years old. That’s where we come in. Our no-homework approach makes it simple to create a plan that includes and protects your digital as well as traditional assets (although we can’t help you with those unflattering tagged photos on Facebook). Talk to us by phone or in person, and we’ll craft a solid, legally binding estate plan – no advance paperwork needed.
“Should you take a second mortgage to do this race? Absolutely.
Can anyone do this race? No. You need perseverance, consistency and about a year to train (if you are a middle of the pack athlete like I am).
Why did I do this? Because it was there, I couldn’t help it.”
So begins Generation Law founder Ben Neiburger’s report of the 2018 PATAGONman triathlon. After a year of training, Ben completed the 16-hour race swim, bike and run in December against the rugged, breathtaking backdrop of Patagonia. If you’ve ever dreamed of doing a triathlon, or just wondered what it’s like to jump off a ferry into freezing sea water in the middle of the night, follow along with Ben in his full race report.