Elder Law Issues
Dispute Between Special Needs Trustee and Beneficiary’s Family
MARCH 28, 2016 VOLUME 23 NUMBER 12 A recent case from the Alaska Supreme Court addresses special needs trusts. It doesn’t break any legal ground (the decision actually focuses on an entirely procedural issue), but it does give us a chance to talk about common problems arising in the administration of such trusts. “T.V.”, then
You Have a Trust — Now You Need a Beneficiary Designation
MARCH 21, 2016 VOLUME 23 NUMBER 11 You have decided to create a revocable living trust, naming your oldest daughter as successor trustee. Your trust directs that, upon your death, $10,000 is to go to each of your grandchildren, $50,000 to the Good Intentions charity, and everything else will be divided equally among your three
Changes in Social Security Claiming Strategies Arrive Next Month
MARCH 14, 2016 VOLUME 23 NUMBER 10 Our good friend Amos Goodall, a nationally-known elder law attorney in State College, Pennsylvania, wrote our newsletter for this week. Amos explains a particularly confusing and complicated issue. The Social Security retirement program basically gives back, with some small interest, funds you and your employer have deposited into
Your Trust and Ownership of Real Property
MARCH 7, 2016 VOLUME 23 NUMBER 9 We occasionally get questions from our clients involving ownership of real estate — usually around the creation, funding or administration of a living trust. These questions are particularly common, and since we got them (from different clients) in the last two weeks, it seemed like a good time
Dad (Mom), We Need to Talk
FEBRUARY 22, 2016 VOLUME 23 NUMBER 8 This week, a letter from Fleming & Curti, PLC attorney Amy Farrell Matheson, addressed to a father (not, as it happens, her father so much as your father): Dad, we need to talk: We love you and want the best for you. Over the past few months, we’ve
Conservator Has Authority Over Property In Another State
FEBRUARY 15, 2016 VOLUME 23 NUMBER 7 We live in an increasingly mobile world. That assertion is hardly controversial. The reality that America’s patchwork of over fifty separate legal jurisdictions can make for confusion and conflict is well understood by lawyers and observers. A recent guardianship and conservatorship case involving two states (neither of them
Mediation in Guardianship Proceeding Can Be Effective, But Raises Questions
FEBRUARY 8, 2016 VOLUME 23 NUMBER 6 Sometimes court proceedings are necessary in order to resolve differences of opinion — but almost everyone recognizes that it is good to seek resolution by a simple agreement when the parties can resolve their differences outside court. Mediation, for instance, is a great way to resolve many legal
Nursing Home Arbitration Provision Voided in Arizona Case
FEBRUARY 1, 2016 VOLUME 23 NUMBER 5 A recent series in the New York Times chronicled the increasingly common practice of including arbitration agreements in all sorts of consumer contracts. The series noted that such provisions are often buried in the fine print of everything from job applications to car rentals to nursing home admission
Disappointed Heirs Not Permitted to Make Claim Against Dad’s Lawyers
JANUARY 25, 2016 VOLUME 23 NUMBER 4 Like a lot of Americans, Fred Brown (though that’s not his real name) had a complicated family life. He had been married twice, and had two daughters — Martha and Sally — from his first marriage. He was still married to Barbara, and she had two children from
Woman’s Holographic Will Effective Despite State Law
JANUARY 18, 2016 VOLUME 23 NUMBER 3 It might seem odd that interstate problems in probate proceedings arise. After all, we have had 50 states and a handful of other jurisdictions gathered together in the United States for a half-century, and nearly that many for most of the two centuries before that. Shouldn’t differences in
“Decanting” of Trust for Medicaid Patient Challenged
JANUARY 11, 2016 VOLUME 23 NUMBER 2 Jane Murray (not her real name) died in 2003. She had created a number of trusts, including two for the benefit of her daughter Dana. Jane was very worried about Dana’s future, partly because of a long history of drug and alcohol abuse. She included some strong language
We Are Creeping Up On a Quarter Century Here
JANUARY 4, 2016 VOLUME 23 NUMBER 1 Note the “Volume” number above. Is it even possible that we’ve been doing this for 23 years? In that time, a number of topics have been perennially popular. We see a lot of internet traffic, and get a lot of questions or comments, when we write about: EINs
Creating Your Trust: Dealing With Specific Assets
DECEMBER 28, 2015 VOLUME 22 NUMBER 48 When our clients establish revocable living trusts, we help them transfer assets to the trust’s name. That’s not unique — most law firms help clients through the process. This is often referred to as “funding” the trust, and it can be more complicated than it seems like it
ABLE Act Update: Arizona Residents Could Have Access Next Month
DECEMBER 21, 2015 VOLUME 22 NUMBER 47 We’ve written before about the Achieving a Better Life Experience (ABLE) Act and the possibility that Arizona might get its own version adopted in the next legislative session. Now comes a pleasant surprise from Washington: Arizonans with disabilities won’t have to wait for our legislature to act. Last
Management of Risk in Guardianship and Powers of Attorney
DECEMBER 14, 2015 VOLUME 22 NUMBER 46 Imagine: you have just been named as guardian for your aging father. You are responsible for his medical care and decisions, his comfort and his placement. You were appointed, in part, because of your concern about his safety at home — you are thinking perhaps he needs to
Holiday Gifts for Older Family Members and Friends
DECEMBER 7, 2015 VOLUME 22 NUMBER 45 ‘Tis the season — the season of uncertainty about what gift to get for your grandparents, older parents or Aunt Myrtle. You want to be festive, you want to be thoughtful, and you know that another two-pound box of chocolates might not be the best idea. But what
Court Orders Weekly Visitation for Grandmother of Child
NOVEMBER 30, 2015 VOLUME 22 NUMBER 44 When Mary Lansing (not her real name) gave birth to a daughter in August, 2013, her boyfriend (and the father of her daughter) was already in prison. Four months later, she filed a paternity action naming her boyfriend, and sought a court order granting her sole legal decision
Good News: The IRS Simplifies Its Proposed ABLE Act Rules
NOVEMBER 23, 2015 VOLUME 22 NUMBER 43 The Achieving a Better Life Experience (ABLE) Act initially looked like it would provide important opportunities to people with disabilities. Although much work was left to the Internal Revenue Service, the Social Security Administration and individual states, advocates hoped that it might open up a simple choice for
Exploitation of a Vulnerable Adult, or Not? You Judge
NOVEMBER 16, 2015 VOLUME 22 NUMBER 42 This week we’re going to ask you to be the judge. We’re going to tell you a story, then give you a moment to decide what you think should be the outcome of a lawsuit. Once you’ve decided, we’ll tell you what actually happened in the courts. Ready?
Weighing Estate Tax “Portability” Against the Bypass Trust
NOVEMBER 9, 2015 VOLUME 22 NUMBER 41 [Note: this article was originally written in 2015. Since then, the estate tax numbers have significantly increased. The structure we explain may still be valid, but not necessarily the numbers.] Here’s a challenging problem for lawyers who focus on estate planning: how can we explain federal estate tax
Things to Consider When You’re Named as Successor Trustee
NOVEMBER 2, 2015 VOLUME 22 NUMBER 40 When a family member dies, you will need to address a number of items. One that might come up: handling the revocable living trust they created. If you are named as successor trustee you will have a number of obligations you need to discharge. You might need help
Quit Claim Deed Was a Mistake, Says Mother
OCTOBER 26, 2015 VOLUME 22 NUMBER 39 We’ve made the key points before: don’t sign your home over to your children while you’re still alive, and be very careful about doing your own estate planning without an attorney’s help. This week we’re going to add a couple of other points: do not rely on non-lawyer
Beneficiaries Permitted to Modify Trust Terms by Agreement
OCTOBER 19, 2015 VOLUME 22 NUMBER 38 Not every client we speak with wants to set up a trust for generations of descendants, but some do. The notion of allowing assets to grow for two or three (or more) generations can be attractive. It is difficult, of course, to imagine what one’s grandchildren and great-grandchildren
Handling Your Own Legal Work — Without a Lawyer
OCTOBER 12, 2015 VOLUME 22 NUMBER 37 Last week we wrote about when you might reasonably represent yourself — that is, when you might not need a lawyer for your legal work. We suggested that what lawyers do is not precisely brain surgery, and that reasonably intelligent, informed and diligent non-lawyers might well be able
When You Need to Talk With a Lawyer
OCTOBER 5, 2015 VOLUME 22 NUMBER 36 So often we field questions (on this website and in our practice) about whether people need to consult a lawyer. Unsurprisingly, perhaps, there is a terrific resistance to seeking legal advice. We lawyers don’t always help — our fees can be substantial, and unpredictable. We speak a language
Not Every Cognitively-Impaired Senior Needs a Conservator
SEPTEMBER 28, 2015 VOLUME 22 NUMBER 35 We handle a lot of guardianship and conservatorship proceedings at Fleming & Curti, PLC. We also meet with a lot of clients (or potential clients) and help them figure out how not to initiate a guardianship or conservatorship proceeding — we subscribe to the modern view that court
Mother’s Gifts to Children Create Dispute Over Special Needs Daughter
SEPTEMBER 21, 2015 VOLUME 22 NUMBER 34 What plans should you make when you have a child receiving Supplemental Security Income (SSI) or Medicaid benefits? Should you create a special needs trust? Disinherit that child so their benefits won’t be affected? Leave their “share” of your estate to another child or children instead? We get
What Survivor Must Do When Trust Mandates Split on First Death
SEPTEMBER 14, 2015 VOLUME 22 NUMBER 33 Once in a while we read an appellate court decision that nicely addresses a subject which isn’t the issue before the court. A recent Arizona Court of Appeals case illustrates this phenomenon nicely. The legal issue was technical and would appeal only to lawyers — and probably only
Attorney’s Fees in Probate Proceeding Challenged, Approved
SEPTEMBER 7, 2015 VOLUME 22 NUMBER 32 How much can an attorney charge in a probate proceeding? In Arizona, at least, the principal rule is one that is difficult to determine: attorney’s fees must be “reasonable”. But what does that actually mean? A recent Arizona Court of Appeals decision approving the fees charged by the
Figuring Out What Court Has Jurisdiction Over a Trust
AUGUST 24, 2015 VOLUME 22 NUMBER 31 One of the best things about establishing a living trust is that you are helping to minimize the likelihood that any court will ever be involved in the administration of your estate. That can save costs, avoid conflicts and give you peace of mind. But sometimes courts do