ESTATE PLANNING 101: WILLS, TRUSTS, AND POWERS OF ATTORNEY: WHAT SOCIAL SERVICES PROFESSIONALS NEED TO KNOW TO SERVE THEIR CLIENTS JANNA DUTTON, ATTORNEY GOVERNOR'S CONFERENCE ON AGING, 2011

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Issues Involved in Planning for Older Age

▪ ▪ ▪ ▪ Financial Decision-Making and Management Health Care Decision-Making and Management Estate Planning Long-Term Care Costs

Power of Attorney

The Power of Attorney for Property allows an individual, referred to as the "principal" in the document, to designate another person, known as the "agent" to act for the principal as described in the document for purposes of financial and other property transactions. The agent stands in the shoes of the principal and is then legally authorized to act.

• Advantages Durable -effective beyond mental incapacity Revocable Amendable Low cost to set up

Power of Attorney for Property

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 Requires “legal capacity” to execute by principal  Agents to act one at a time – no co-agents  Can be customized to situation  Can be effective immediately or “spring” into action upon occurrence of incapacity  Is revocable and amendable (requires capacity)  Agent can delegate authority to others  Agent entitled to reasonable compensation

Power of Attorney for Property

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 Must be witnessed; limits who may act as witness  Executing new power of attorney for property does not revoke old powers unless spelled out  Agent must act in accordance with principal’s known expectations otherwise in principal’s best interests  Powers of agent defined in statute unless modified in document – very broad  Agent must keep record of receipts, disbursements, significant actions as agent

Power of Attorney for Property

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 Duty to Account  Agent must provide upon request a copy of receipts, disbursements, significant actions to principal or fiduciary agent on behalf of principal, elder abuse agency, ombudsman, or court  Standard of Actions  Agent must act in “good faith” using “due care, competence and diligence” in acting for principal  Gifting  No authority to Gift unless added at paragraph 3

Power of Attorney for Property

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 New statutory changes define who may go to court to protect principal: principal, agent, guardian, spouse, parent, descendant, heir, death beneficiary, elder abuse agency, ombudsman, caregiver, or anyone demonstrating interest in principal’s welfare  Attorneys fees and costs to elder abuse agency  Duty to Preserve Estate Plan  The agent shall take the principal’s estate plan into account insofar as it is known to the agent and shall attempt to preserve the plan.

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Health Care Power of Attorney Document

 A Power of Attorney for Health Care allows persons to legally designate other persons to make enforceable health care decisions, including refusing and withdrawing life sustaining treatment, in the event that they are unable to make their own decisions.

Powers of Health Care Agent

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 Authority to make any and all decisions concerning personal care, medical treatment, hospitalization and health care and to require, withhold or withdraw any type of medical treatment or procedure, even though death may ensue  Authority to access medical records  Authorize an autopsy and direct the disposition of remains

Power of Attorney for Health Care

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 May be customized to values of principal  Revocable (even without capacity) and amendable  May name only one person to act at a time  Agent to use substituted judgment in making decisions  Although agent has no duty to act, if agent does act, must be with due care for principal  New statute is clear that signing new power revokes old powers

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Powers that the Health Care Agent does not have include:

 does not have custody of the principal  cannot control visitation

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Possible Limits on the Health Care Agent’s Powers

Examples:  may not have authority to consent to certain treatments contrary to the principal’s religious belief such as blood transfusions  may not have authority to consent to life-sustaining treatment

Considerations

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 Choice of agent  Communication with agent

Trusts

 Established by a transfer of property to yourself or to another person to hold for your benefit.

 The powers and responsibilities of a trustee   Similar to those of an agent under a Power of Attorney for Property Controlled and limited by the terms of the trust document.

Example: Eliza transfers her house and her brokerage account to herself as trustee of the Eliza Living Trust. In the trust document, Eliza designates her son, Elliot, as successor trustee if she becomes disabled.

Common Trust Disability provision

 2.2 Determination of Incapacity. I shall be incapacitated if I am under a legal disability or am unable to give prompt and intelligent consideration to financial affairs.  (a) Written Determination. The determination of my inability shall be made in writing, signed by my personal physician and my children who are then living and able to so act, and delivered to the trustee. The trustee may rely conclusively on that writing.

Trusts as Disability Planning Tools  Good disability tool:  If trustworthy individual or corporate fiduciary is named as trustee  If all assets are transferred to trust before disability.  To protect finances after disability  No authority or protection over personal affairs.

 Guardianship Court has no jurisdiction over Trusts

Trustee Accountings \Accountability

Common Trust Provision:

7.2Accountings. Upon written request, the trustee shall send a written account of all trust receipts, disbursements, and transactions and the property comprising the trust to each income beneficiary and, at the option of the trustee, to the future beneficiaries of the trust. A “future beneficiary” of a trust is a person to whom the assets of the trust would be distributed or distributable if the trust then terminated.

Illinois Trust and Trustees Act

 Requires the Trustee to provide annual accountings to the income beneficiaries of the trust, and provide an inventory of trust assets. The Trustee must make trust books and records available for inspection by the beneficiaries.

 Problem: Incapacitated beneficiaries

Duties of a Trustee

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 Must follow the terms of the trust document  Loyalty to beneficiaries  Protect and invest trust assets  Provide inventory and accountings to beneficiaries  No self dealing  No comingling of assets

Trust Protectors

 Can be included in trust documents  Can be empowered to act at incapacity of primary beneficiary  Can be empowered to review and approve trust accountings, to remove and replace a trustee, to take legal action against a trustee

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OBRA Individual Payback Trust Requirements

     Irrevocable Established by parent, grandparent, court or guardian Beneficiary under age 65 and disabled Any state which paid out Medicaid benefits on behalf of beneficiary is paid back at the death of the beneficiary before any other payment except taxes and reasonable expenses of administration.

If proceeds of trust are from personal injury action, the Department lien must be paid off before transferring the proceeds to the trust.

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OBRA Pooled Trust Subaccount Requirements

     Irrevocable Established by parent, grandparent, court or guardian or the beneficiary him or herself Beneficiary disabled (may be over 65) Payback to any State providing Medicaid unless retained by the Trust If States are paid back at the death of the beneficiary must be before any other payment except taxes and reasonable expenses of administration.

Last Will and Testament

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 A Last Will and Testament specifies the persons or organizations to receive your assets after your death and also designates a person who is responsible for effectuating the terms of your will – an executor.

 Does not avoid probate. Whether or not your estate requires probate depends on the ownership of your assets.

Duties of Executor

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 Executors have duties upon court appointment  No powers or duties during lifetime of testator  Once appointed, duties to notify creditors, heirs and beneficiaries  Collect and protect estate assets  Must defend the Will  Must pay final expenses of decedent, file tax returns, pay claims  Distribute according to terms of Will

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More than 50% of individuals today who are 65 years old will need some kind of long term care during their lifetimes.

Plan for Long Term Care

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If you needed assistance with Activities of Daily Living, how would you access that assistance?

      Driving Meal Preparation Bathing Toileting Dressing Transferring from bed to chair, etc.

How would you pay for it?

Paying for Long Term Care

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 Private Pay (Medicare provides limited long term care coverage)  Long Term Care Insurance  Medicaid

DUTTON & CASEY, P.C.

ADVOCATES FOR OLDER ADULTS, PERSONS WITH A DISABILITY, AND THEIR FAMILIES .

Attorneys: Janna Dutton, Kathryn C. Casey, Melissa Howitt, Lara A. Duda Appointments Available In: Arlington Heights, Chicago, Skokie, and Vernon Hills, Illinois Phone: E-mail: 312-899-0950 or 847-261-4706 [email protected]

www.duttoncaseylaw.com

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THANK YOU

www.duttonelderlaw.com