Senior Living LIVE! Everything You Need to Know About Being a Power of Attorney for Your Loved One

Video Transcription

- Hello everyone and welcome into Senior Living Live. My name is Melissa. As always we appreciate you all taking the time to join us for this webinar today called the Power of Power of Attorney. You'll find out what this means, its limitations and how it compares to other titles like guardianship. It is a very important topic and we've got one of the best here with us today to explain it all to you. Elder Law Attorney, Laurie Hauptman, she is here with us, she will also have time to answer all of your questions at the end of her presentation. So you'll wanna stick around for that. To get your question into Laurie, you can find the Q&A box, if you scroll down to the bottom of your screen, you can type your questions out there and I will be happy to read them to Laurie at the end of her presentation. Just a reminder that all audio and video lines will be muted throughout the webinar. So without further ado, We hand this over to our guest speaker, Laurie. It is so great to see you, the webinar is all yours.

- Thank you so much, thank you so much for having me. So I have you today for about half hour. I believe that you'll probably learn something that you didn't know before and then I will know that the seminar was successful. I'm an estate planning, elder law and special needs planning attorney. I am licensed in New York and New Jersey. Some of the information I'm gonna give you today is general in a sense that it could apply to various states. Obviously, I don't practice in the rest of the states that some of you may be in other than New York and New Jersey but a lot of the information will carry over and will give you some food for thought today. I always say that it's important to know what you don't know and that if you choose to go a certain route, at least you have information in front of you and that you have knowledge. So the title of today's talk is, the Power of the Power of Attorney and What You Need To Know to Avoid the Time Consuming and Expensive Process of Guardianship. So we have a little cartoon here and it's obviously a person saying, "A raise in my allowance is fine dad but what I'm really after is power of attorney." Now, obviously a little bit of a joke but the idea is it does stress the fact that it is an important tool, it's an important estate planning document and it does have significant powers to it. And therefore it is always important that you respect the fiduciary role in terms of who you would be naming in this document, which I will elaborate on further. So what are the most important documents, estate planning documents that you can have? And I will argue that it really is powers of attorney and a will is important but a will addresses what happens when I die. And it usually touches upon how to pass your estate onto loved ones or families, family members or friends but the powers of attorney are documents that come into play while you are alive, okay? So what is it? It's a written legal document which identifies one person, the principal who authorizes another, the agent to act on his or her behalf. And in my opinion, a person needs both a financial and a healthcare power of attorney, okay? We do both for our clients. Now, I often hear that people will say when they are named as an agent under a power of attorney, they say, "I am so and so's power of attorney." It's actually not the correct verbiage, you really are the agent named under a power of attorney. The power of attorney is the document but we often hear people say I'm his or her power of attorney. So powers of attorney, what is it? Well, the first one that we're gonna talk about is called a general durable power of attorney. And that is the document that deals with people's financial affairs. It's a written document, signed and acknowledged by one person authorizing another person who's called the agent or attorney in fact, to act on his or her behalf with regard to managing financial affairs, okay? A durable health care power of attorney or a proxy directive sometimes called is a written document where you appoint another person, a healthcare representative or agent to make decisions for you, speak to healthcare personnel, doctors and access your medical records. So they do different where they accomplish different tasks and they definitely address different powers, okay? So one of the things I want you to understand is for all of you that are watching, is I want you to ask these important questions. Do you have these documents in place? If you don't then that's an easy one to start with, you need them 'cause you don't have any. If you have them, when did you last review what's in them? I analogize these documents powers of attorney to an outfit in your closet that has been sitting there for quite some time. If you haven't tried on that outfit in a while, it may not fit. And that is how I feel about documents, if you haven't pulled those documents out and looked at them, they may not fit you. What do I mean by that? You may have named as an agent or representative someone that's not alive anymore. You maybe named somebody that you're not friends with anymore or you don't have a family relationship with anymore. You may have named someone that's alive but they lack capacity to make decisions. So it's as if then the document has no relevance because if the person that's named can't do it or can't do the acts or enact the powers that are set forth it's as if you don't have the document at all. So it's important to take out the documents and look at them and have someone look at them. How old are they? Are these documents done 20 years ago? And if they are, it's clearly not going to have some updated language that we may need and it likely may not have the players that you still want or the people that you would designate. Are your children older now that they can be named and step in the roles of the agent or representative because maybe you named siblings or parents and now your parents are seniors or passed away and now your children can come into play. So it's not that the documents age, in essence means that they're not valid because most powers of attorney are valid unless they are revoked or a subsequent one has been prepared and executed indicating that the prior one is no longer valid. But that doesn't mean that even though they're valid, that you won't get pushed back from a facility or a financial institution to say, "Hey, these were 20 years old." And Smith Barney could say, "We don't want to accept these." Now, technically they should have to but they do cause problems and often they want a updated certification or affidavit that it's still enforced and effect. And there are steps that make you kind of go through which again, could delay the actions that are needed with regard to what the agent is going to do. So who can prepare powers of attorney. So I often see, today I actually had a consultation with a family that told me that their power of attorney, their healthcare one was brought up, gotten from the internet. We don't recommend utilizing internet forms. You know that saying, you get what you pay for, that is what happens. It often will have boilerplate or templated language. So will the financial power of attorney that you print out, get you to your local bank probably but will it have powers in it that your agent may need to do for you to protect assets or to handle your online accounts? Probably not because it's not going to be comprehensive. I recommend that you have your documents done by an attorney but I'm gonna further express that you should have it done by an attorney that understands how these documents are used and is revising them periodically. So what do I mean by that? Most attorneys whether they practice criminal law, real estate, corporate, will have some sort of power attorney Microsoft Word document on their computer, I would venture to guess that. But that doesn't mean that it is comprehensive and it doesn't mean that they know how to have their client execute it properly. I have seen documents that are prepared and signed incorrectly by attorneys. And if you do that or have that happen to you, then that document is useless. It's as if you never had a document and some clients get the document for free again, get what you pay for but some have paid for it and it was not done correctly. So you wanna make sure that the document is comprehensive also. Many attorneys use templated forms also and it may not have language that I for example, as an elder law attorney who does asset protection planning may need. Will it allow somebody to admit you to Arbor Terrace? Will it allow you to handle financial arrangements, file insurance claims, handle your digital assets, your Facebook, your Twitter, your online banking. So this is very important that this is not the time to just see a generalist, a person that just does general law or often a person that is actually specializing in but doesn't use powers of attorney like an elder law attorney or estate planning attorney does. So what happens if you're married and people ask me, "Well, if I'm married, I don't need powers of attorney, right?" Because a lot of my assets are joint." Huge, huge misconception that a spouse automatically has the authority to act on your behalf, that is not true. Your marriage license does not give you the ability to make decisions in the world of finance because they are still looking for that designation and document. If something happens, should happen that results in your inability to make decisions and you're married and you don't have a power of attorney, your spouse or other family members will still have to obtain a guardianship, okay? Now where would that come into play? Well, even if you have a joint account, just say you have a joint checking account, a joint investment account, okay? Fine, if you have a joint account, you can access that account but not because you're accessing it for the person that it is joint with, it's because you co-own that, that's why you're allowed in it. But what is the biggest asset that most of my clients own that is not joint. Does anyone wanna chime into the chat for one second? What is the biggest asset that most of my clients or most of you out there own that is never joined? Does anyone wanna guess? I'm gonna wait for a few minutes and see if you can type into the chat. What assets are the biggest assets that people own that are not joined? And then let me just see, I've popped into the chat. Let me see what everyone's writing. Okay, some said home or car. Okay, now I'm seeing it. So your home is often joint so that's not correct. A car is often not joined but it's what everyone else is writing. It's your retirement accounts, your 401 and your IRAs, your 401 and your IRAs, they are not joined. Many people do not know that so when I tell people, does anybody know what I in IRA stands for? And they go, no, it stands for individual retirement account. Those accounts, a spouse has zero access to unless you had a power of attorney, either a general power of attorney that addresses lots of powers, including a retirement account or you have executed a specific or limited power of attorney for that specific company to allow you to have access to your spouses or family member's retirement account. Without it guys, no access. The assumption by a financial investment company account, anyone that has an account or your 401 is that if you don't name someone, they are assuming you do not want them to have access. And that is a reality that I see. Now, often people say, "Well, why do I need to have access? Because I am my spouses or I am my family members if they're single beneficiary," we hear that all the time. But what has to happen in order for a beneficiary to take place? Anyone wanna chime in on the chat? I'm gonna look at it again. What has to happen for a beneficiary in a retirement account to come into play? Yes, everyone's writing it, death. What is the number one reason that my clients have to access a retirement account? It's because of an unexpected injury or illness and nobody has died. So if your spouse is named, there's no access then. So and on average, so what would they have to do if they don't have attorney, apply for guardianship, which is a court proceeding where you file in New Jersey at least, we have to file an action. It takes about two to three months to obtain a guardianship and if the average care costs where we live is 12 to $15,000, that's $36,000 to $45,000 of money that is gonna keep coming up that until I can get into an account, possibly get records and get somebody into Medicaid. So where would your loved one find the money to pay for care while waiting for guardianship? And that's a reality because most of our clients have a house but it's not liquid everyone, can't live off of a house. They have maybe some non-retirement investment accounts and maybe they have some checking and savings but the biggest asset is retirement account and if you can't get into that and you have care costs, that's a problem. Okay, let me see. Got to close this first. Okay, so let me just see if I got that. Okay, so important considerations for a financial power of attorney. Let me tell you about what some of them, people go see an attorney and this is what the attorney writes, I give my agents the ability to do everything that I can do. And language can be in that but if you just have that language that will be denied for being too broad, okay? In a power of attorney, we wanna see specific delineation of powers. Now, in life more is not always better, more taxes, not necessarily better in my book, more pounds on our body if we're trying to lose weight, not better, more powers in a power of attorney, better, okay? So in the powers of attorney that I do, you want self-dealing. What's self-dealing? It's where you're allowing your agent to make decisions that could benefit the agent, a spouse or a child. If you don't have self-dealing language in it that will prohibit an agent to do acts on your behalf. Remember, it's still acting, you're still making decisions for you, it's for your benefit, it's a fiduciary role but if they inadvertently benefit from it and there is no self-dealing language, you're not gonna be able to do it. We have Medicaid planning language in our power of attorney. You will not see that with a generalist attorney, okay? A real estate attorney, they will not have it in there. We see gifting limits set forth in powers of attorney by attorneys that don't do what we do. We don't wanna see possibly gifting limits or we wanna have clauses in it that allow for gifting without limits because that allows for asset protection planning. Now, what do we mean by spring and immediate? So when you have a financial power of attorney, there are two different ways in which that power of attorney can come into play. One way is it's springing, it comes into play upon a certain event or act, often, it means a person lacks capacity and that's when they want the agent to be able to make their decisions. I don't like springing powers of attorney and I will tell you why. And when the attorneys do them, that don't use them like we do as elder law attorneys, they don't really know the obstacles that come into play. If you have a springing power of attorney that says, "I Laurie Hauptman appoint Melissa to be able to do acts for me when and if I become incapacitated." That will require an incapacitated declaration or an exam by a doctor to say that there's a lack of capacity. And that takes time to get that exam. It takes time for the doctor to write up a report or even a letter and then it has to be submitted to the financial institution. And they often don't approve of them, they push back on them all the while, while you're trying to get bills paid or access done, you have to wait for all of this sort of hoops to jump through. Yes, people say to me, "But it scares me to name someone that will have the power immediately." And I say to all of you that if it scares you to name somebody that has the power to do it immediately while you have a ability to know if they're putting your house up for sale, it would scare me even more that you would only want them to be acting when you lack capacity. So the summary of that is that you should only be appointing someone in this role that you trust. And if you don't trust them, it shouldn't matter whether it's springing or in effect immediately because that's the more important question. If you don't trust them, if you think they're gonna put your house up for sale, they're not the people that you should be naming. We often see that clients will name an agent under a power of attorney and then have alternate successor agents, except sometimes you want, co-agents named not alternate. And how does that come into play? And should the co-agents be able to act independently of each other or do you want them to act together? Your run-of-the-mill lawyer, your generalist is not going to ask you these questions, trust me. Here are examples of powers that are set forth in a general durable power of attorney. General meaning it addresses more than just banking, it address insurance, real estate, digital assets, legal actions, taxes, gifting. It's general because if you sign just the one from Smith Barney, it will allow you to do transactions or appoint someone to be able to do transactions just at Smith Barney, that's a limited power of attorney. It's not a general power of attorney, okay? You also wanna make sure that it's durable, meaning it stays in effect past capacity. It's in effect while you still have capacity but it stays in effect. And I have seen powers of attorney done that are not durable and guess what? That makes no sense 'cause most times that's when you're using it when the person lacks capacity. So let's talk about capacity about signing a document. People ask me all the time who can execute powers of attorney documents. Okay, and the answer is anyone over the age of 18. And people say to me, "Is there a very high threshold for understanding the documents? And the answer is in New Jersey, the case law is pretty clear that it's a lower threshold. Meaning you can have a diagnosis of dementia, of Alzheimer's or you could have a cognitive impairment but that doesn't in itself mean that you lack capacity to execute a document. It's just the diagnosis as long as you understand that the general idea of what the document is doing is going to allow Melissa to be able to take care of my finances, help me with insurance claims and you understand the general idea of what the document does and you understand who the person is in your life that you're appointing. So the words that we use this, you understand the family members that you're picking, okay? And that is very important. So when I'm doing a signing, I ask people and I have a conversation. How are you? What year are we in? Who is the President of the United States? I will say, "Who's next to you?" They'll say, "My daughter or my son or my..." Do you want them to be able to help you? Yes, I do, they already help and we have a conversation. And as long as they can carry a conversation and they're not looking around the room and they're not playing with their clothing and they're not answering questions that I didn't ask them, then they can execute it. And it's really a subjective decision on the part of the attorney, okay? So that's important to understand. I have probably my 30 years, probably about six of them I've had when I finally met them, we could not sign the reason I haven't had so many more of those situations is that often people know straight away that they won't have a loved one be able to execute it, a document and then we go right to guardianship. Another big misconception is whether or not the principal must be able to sign the documents for it to be valid. So I'm gonna ask you guys in the chat, do you have to sign the document to be valid? Do you have to physically sign the document? So let me just see what people are gonna write, come on. Okay, so I have one person now, anyone else wanted... Do you have to physically sign so if it's my power of attorney that I'm preparing, do I have to sign the document for it to be valid? Okay, so we have both. Yes and no somewhere, I don't know, that's good. The answer is and I can tell you in New Jersey, the answer is no, you do not physically have to sign the document. It is not the ability to sign that as relevant, it's the capacity to sign. So I have had cases in which I have had someone that's paralyzed but they have complete cognitive awareness. I have had somebody that has lost the ability to sign again, not cognitive impairments so I can sign for them. And what I do is I mark an X and I wrote mark at the direction of the principal. I also have had clients that can't sign their name in a signature form but they can make an X and then I would write down marked by the principal, okay? Because I have had people that can still sign their name but don't know what they're signing. So it's not the signature, it's the capacity ability. That's important to find out what your state can do and that's relevant, okay? So in New Jersey, the power of attorney can be done with two witnesses, signed by two witnesses watching or a notary which New Jersey is a licensed attorney also, we happen to like both so we have usually two witnesses and a notary, okay? Now, let's talk about I'm gonna go a little bit now into the idea when I talked about dual agents, co-agents and I told you that you can ask them whether or not we wanna know whether or not the principal wants the agents to act together or act separately. Now, if you're concerned about one of your agents going rogue or you want them to have input from another agent, you can have that they act together but understand that then each financial transaction, each check, each bill that's paid, each insurance claim has to be signed off by both. And that can be prohibitive but sometimes there's a reason you're doing it. You may have a blended family and you have children from both sides. And so it would make sense to have a representative from both sides and you want them to act together. So there isn't an issue with lack of decision-making on one side or doing something that would be against a parent that is a step parent. Or if you feel comfortable with either co-agent acting and sort of dividing and conquering the tasks then I would have the person named as co-agents but they can act individually. A little bit of piece of advice for all of you, if an attorney does not do what I do and does not understand and simply asks if a person wants them to name co-agents. In New Jersey at least if you name co-agents and you did not do not indicate whether or not they can act separately from each other, the default is they must act together. So again, it's very important that the attorney that you're going to or that you're seeking guidance from, knows what these documents do and how they work. They're super important, okay? Now, a lot of people say to me, "Well, what about if I jointly own an account, doesn't that give me access? And what's the difference between that and an agent under a power of attorney?" Huge difference and let me explain. If I jointly own an account with Melissa and the account is joint. First of all, if it's joint with right of survivorship, I wanna tell all of you a big misconception, even if my will says that my accounts go to my husband, Yale, if I die and I jointly own an account with Melissa with right of survivorship, that money goes to Melissa because it's not a will asset. People don't know this. I have many senior clients that name one child for the convenience of banking and they name them but they don't understand that if they have $100,000 bank account, that that one child was named on for the convenience of banking and they die that child owns that account. And even though the will has it split between all of their three children, that person's children, it does not have to be shared because it's not a will asset. And I have seen children that have not shared that asset. So what's better to do is that in that case is make the child that you want to have banking capability to do, an agent under a power of attorney, they don't own it but they can do banking for it. It's a different, it allows for the banking but there's no ownership. Understand that once someone dies, the agency ceases to exist but so if it is joint, it won't freeze, half of it will freeze but not all of it. If you are only on an account of your loved one as an agent, it will freeze until an appointment can be made for an executor or executrix. And then the account will be moved into an estate account but it's very important that you understand that the way your assets are titled makes a difference in how they pass which is another talk not today. Okay, let me just comment on... Okay, someone just wrote, in Florida, you must have a notary and two witnesses too. Okay, good, I like to know about other states. So healthcare directive, what is it? Sometimes it's called a proxy directive, healthcare power of attorney. We do a combined directive of a healthcare power of attorney and living will, some people have separate documents. As far as I know again, I mostly deal with New Jersey. All healthcare directives are springing. They only come into effect when you can't communicate or make treatment decisions, okay? They are very important though that you have a directive if you are concerned with somebody else coming forth to make medical decisions for you, what do I mean by that? In most states, most hospitals will look to next of kin. Next of kin guys is not really a legal document and what it does is they'll say that they'll look to the spouse or a loved one to make a medical decision. Well, that's great if you don't have three people stepping up and saying, "Hey, I wanna make the decision." That's why you want a directive so that, especially in blended families, you don't have someone saying like, if you are married to someone and you wanna make the decision and it's a second marriage, you wanna know that you're making the decision for your second, your spouse and not their biological children who are gonna clearly, sometimes push you away. So a proxy directive, naming someone is very important. We had a very famous case in New Jersey called the Terri Schiavo Case. And it was a married couple where the woman got injured. He said she would not have wanted to be kept alive on advanced life measures. Her parents said that's what she would have wanted. And we would want and they had to go to court and it was a huge litigation. And some of you I'll date myself even further to talk about a case, a famous case called Karen Quinlan And again, these are your reasons of having something in writing, okay? Important considerations for healthcare. Again, why you don't want to go to a generalist or take one off the internet. We have psychiatric treatment language in ours, we have placement language into facilities, many people don't and HIPAA language has to be in these powers of attorney because if you don't have HIPAA language in it, how will you going to make a decision on what your loved one wants to do for end of life if you're not able to talk to a doctor. We have consultation clauses where you can name a person to be your proxy but you want them to consult with their siblings, okay? At least have an attempt to consult. We have conflict clauses that talk about if the directive is different than what the representatives, if the document says something different than the representative who prevails, important language. Will the run-of-the-mill generalist attorney have this, no. When does a healthcare power effective? When the document is given to a physician, and a determination of incapacity is made, it is springing. Do we have dual agents for healthcare proxy? In New Jersey, the statute is silent. We don't recommend naming dual agents for a healthcare proxy because most healthcare institutions prefer one person named with alternates so that they know they're going and getting the answer from one person, whether or not that person seeks advice or speaks to other ones they wanna know they're going to one person. So when does a guardianship come into play? It's necessary when the powers of attorney are not done correctly or comprehensively or if the person doesn't have the document, okay? And they don't have capacity now to execute one, that's it? There's no secret sauce to this, okay? The guardianship, the overview of the process is you have to file a complaint. This is New Jersey, I don't do guardianships in other states. I often represent the attorney for the guardian and the alleged incapacitated individual will get an attorney that will be appointed by the court for them, okay? There is a court appearance often for incapacitation, right now we are not in court because of COVID in New Jersey still. We do them either by Zoom or we do them by phone conference. It is expensive to file a guardianship. There are hourly fees, again I'm only speaking about New Jersey and let me explain, this guardianship process is really different in every state, really different. I am working now with Massachusetts and I can't tell you how different the process is in Massachusetts than it is from New Jersey. They have a conservatorship different and guardianship, it's so different. There are oversight requirements in New Jersey. You have to do an annual report, even for a loved one. You have to file, you have to get approval if you need to do certain acts like sell a home, yeah. Even though you co-own it, you have to get approval. That is why if you don't want the court in your married life, you need documents or else even if you're married, you're gonna have the court involved 'cause somebody is gonna have to file for guardianship. So who should have a power of attorney? Everyone over the age of 18 that has capacity to execute one. Why do I say that? Because I'm going to tell you right now that my 22 year old daughter, my 24 year old son and my 27 year old son have powers of attorney, why? They are over 18. Now, for all of you that are listening, trust me when I tell you that at 18, most of your children are not emotionally emancipated, they are not financially emancipated but they are legally emancipated. And you had no rights to do anything on their behalf without them executing a document naming them, including about college. So all of you have gotten, my kids have gone through college already but you will find out that any college is happy to take your tuition payment but trust me that you have no access to know their grades or had any access to anything about them, unless they authorize it or you can provide them with a power of attorney, okay? That is the world that we live in, no questions about it. Now, if you are joined on a bank account with your child, fine, you'll have access to it but if your child needs to file an insurance claim, once they're 18, you can't sign for them, they have to do it. And you can't unless and now if they need to file taxes, if you need to get into a bank account for them because you're not joint. Just say they finally have a job, they're out of the house. Everybody over the age of 18 needs a power of attorney, I don't necessarily think an 18 year old needs a will if there are no assets right now but they have to have a power of attorney. I am telling you that I have seen kids that have had accidents and I've had things that unexpectedly happen to them and the parent has to file for guardianship over them because they didn't have a document, okay? So let me just go to the next slide. Anyone that wants to sign up for our a Monday morning blog, my husband blogs every week in short story form about things that are happening in the world and whether or not they're gonna reduce the federal estate tax from 11.7 million to six, you will learn about it if it happens on here. For anyone that's in New Jersey, that wants a consultation, we offer free consultations, I just wanna share that with you, you just have to call our office. You could also request our educational materials be emailed to your home, you can go on our website, it has a ton of educational material. It's really important to me and my husband to educate the community about these things that you don't know. So I hope you learned something, something you didn't know. Thank you, Melissa and Mary Cate for helping me and having me so I'm opening it up to anyone that wants to ask something.

- I know I learned a lot today. I've already taken notes and I have some things I need to discuss with my husband as soon as we are finished here today. Take a drink of water, Laurie. We have quite a few questions. Just to let everybody know, we're going to take this webinar to the top of the hour. We're going to try to get all of your questions in and we will start with our first question that rolled in from Mark. He asks, "Should I sign my name first, then POA, then the person's name? Or should it be the person's name first then my name followed by POA?"

- So that's handled a little differently depending upon who you ask and so I will tell you the way we do it. We don't like our clients signing the person's name, we like it to be... So if I'm signing for my mother-in-law for example, Janice Hauptman, I would not sign Janice Hauptman. I would sign my name as POA for Janice Hauptman. 'Cause clearly my signature isn't going to look like Janice Hauptman's. So I don't recommend that my clients sign, Janice Hauptman POA, I have them sign their name as POA for Janice Hauptman. That's how I like it, it is semantics. You can actually sign for Janice Hauptman, giving you an example and then write POA but we prefer it the other way. So that it's clear that it's not her signing, it's you signing as her agent.

- Gotcha, we'll have the second question from Mark. And this goes back to, if you need heart surgery, you don't want a brain surgeon. If you need brain surgery, you don't want a heart surgeon or the orthopedic surgeon. "So based on what you've said, if the attorneys don't do documents correctly as a layman, we don't know if it is done right or wrong. Why should we pay only to find out down the road that it wasn't done right?"

- Well, and that's where I think you have to vet who you're going to and you have to ask them, do they use these? How often are they updated? I just updated mine recently. Again, I'm always updating them because I use them all the time. So anytime we get pushback or we learn that we need digital assets or something new happens. So what I would do is I would vet the people that you're thinking of using ask them, do you do estate planning? Do you use these documents? When's the last time that you've revised them? And I would vet it because it could be too late if you don't do that, you're gonna find out that your own documents are not valid. That is why when I do consultations with clients, I always in conjunction with the consultation ask to see all documents, I wanna review them. And let me tell you what happens in the real world. When you go to a hospital or you get a procedure, they will ask you if you have a living will but guess what they will not ask you about. They will not ask to see it, they just ask you if you had it. So I find that this never gets looked at and how old is it? So you really want your documents looked at by, in my opinion and experience estate planning or elder law attorney to make sure that they... I don't charge for that, some may but it may be very worth it to pay an hour fee and hourly fee to have it reviewed.

- Excellent, Carmen has a few questions. We'll start with her first one. "Why do we still use the term living will, multiple friends and family members have misunderstood that to me, if the person's will versus medical POA and they failed to verify that the person has a will for their assets and possessions, et cetera. End result is the person passes and she has something here. So how would you..."

- No, no, I totally understand that so that's what I told you there are different names for it. You can call it an advanced directive and then it really doesn't get mixed up. It is true that a lot of people think a living will means a last will and testament but often we will refer to a last will and testament as a last will and testament. A living will, so we call it a health care power of attorney and living will, they are very different. And so you can simply say an advanced directive or a healthcare proxy and advanced directive. Healthcare directive could incorporate both of them but it is a big, that could be a problem for people. It is still a term that used living will, often.

- And I think a good point here that she mentioned too, don't all IRAs require that you assign a beneficiary.

- Oh my God, no, though you should have one because it will streamline and avoid probate. But no, you're not required to have one because if you don't have a beneficiary named or you named your husband and they pass away, guess what you don't have? You don't have a secondary alternate, the answer is it will defer to your will. So I'm not aware that you're required to have it and I often see that so when I'm doing estate planning for my clients in New Jersey, I asked them to provide to me, I give them a form. I wanna know all their assets that pass by way of beneficiary designations and I ask them to tell me who the primary is and who the secondary is because I actually think that people don't know who they have. I'm going to tell you one quick story. I had a man that came to me and knew he was dying and I told him, please and he had two children, he was divorced. Please look at all your beneficiary designations to make sure that the people named are who you still want your assets to go to. And his ex-wife got $50,000 because he did not listen to what I said because it doesn't go by your will, even though his will had it going to his children. A beneficiary designation supersedes what's in a will.

- Wow, so I definitely learn from somebody else's mistakes. Yeah, in this case. Carmen also wants to know, "What is Medicare planning language and can you provide an example?"

- It's not Medicare planning language, its Medicaid. Don't confuse Medicare with Medicaid. Medicare is the government program that pays for your health insurance like health insurance but by the government when you turn 65, it is a non need-based benefit program, pays for your hospitalization, prescription. Often you can have secondary insurance supplemental plans but Medicare is health insurance. Medicaid is like long-term care insurance by the government but that is a need-based program. And so Medicaid language has usually things like setting up trusts but we need irrevocable trusts, not revocable trust. A lot of people, especially in Florida, California, really big on revocable trust there. New Jersey, not so much because we're a probate friendly state and Florida, California, almost everybody has revocable trust. Those are not asset protection Medicaid compliant trusts. They won't help you protect your assets. So that's the kind of things, it's speaking about transferring assets and establishing trusts, specific trusts.

- Good, Carmen asks one more question and then we'll move from her to others. And Carmen, if you have any follow ups, please feel free to ask. She says, "What did the person who passed wrote out in their handwriting what they wanted to have happen to their assets but did not date or sign it and then they passed and then the family submitted for probate to get all assets assigned to them?"

- Okay, so handwritten wills are called holographic wills and every state handles holographic wills differently. Okay, so when you hand hand write it, New Jersey does recognize holographic wills but there are certain I'm not gonna go into it now but there are certain criteria that has to be met in order for it to be valid. So I will tell you that when I have people writing on a napkin on the eve of going on that plane because they've put it off for a long time, you may have some, there may be some validation to what you're putting down but I still recommend that you go and have a traditional will written out, notarized and witnessed. But written wills in handwriting, holographic wills, what I call them, they are valid in certain states, you have to know what your state allows.

- Excellent, Cynthia has a question, so here we go. "I have a durable POAs from my mother for financial and health but I have been told that I cannot execute my duties as long as she can say no. She has advancing Alzheimer's and is not able to make decisions in her own best interest at this point, do I need to have doctors declare her incapacity in order to execute duties on her behalf? She currently resides at home with my father who has advanced Alzheimer's and is his primary caretaker which has become an unsafe living environment over the past year. I live and work 700 miles away and there is no other family member nearby to take care of them. I appreciate your advice because I'm feeling frustrated as her daughter."

- Okay, so she just refresh, her mother has the power of attorney naming her?

- It looks like that. Yes, I have durable POAs from my mother for financial and health.

- Okay, so you have to check to see if it's has springing language or immediate and who is the first one in line to make decisions. So did your mom name your dad first? And then if he's not able or unwilling then it goes to you. You have to see the sequence or did your mother name you directly and are you in place? Are you in play in essence immediately or do you have springing language in there? Does it say that you can only make decisions for your mother until she's incapacitated and if she is, if you have that, you had no ability to help her. And this is why I don't like springing because springing I have clients that just want their loved ones to help them now or fill out claims or do things because they're tired or they get overwhelmed but not because they lack capacity. If you have a springing power of attorney with the language that says it only comes into play and in capacity, you can't do it for that reason. That's the problem so you have to look at the document, whatever wrote that in and it will tell you, if you are named immediately and you are the first in line, then you can do stuff with her even if she lacks capacity, I mean, even if she has capacity, it's immediate. And you should be able to speak to the attorney that drafted if you have any questions about it.

- Great, I hope that answers your question, Cynthia. We have a question here from R, "My son died and had me on his bank account as beneficiary, I try to close the account, they won't let me and told me to go to probate court."

- What state do you live in?

- It doesn't say the state.

- Okay, so again, every state has different rules. In New Jersey if you are named on a bank account as payable on death, transfer on death, it's outside of probate but they could freeze an account until you do something which is you sign like a document that says that you don't owe a state tax or there isn't anything and it's called an LA, New Jersey and Illinois is a real estate. So that may be the case that it will go to you but you have to may have to do something in which to do it, it should not be probate though that you have to do. If it's truly a payable on death in New Jersey that is outside of probate, if you're named. If you were not named, it would be probate. And again, I don't know all the details doesn't sound right and you may not be telling me all the facts.

- Okay, a couple more questions here. Again, we're gonna take this to the top of the hour. Anonymous asks, I have a relative willing to be power of attorney but she lives in California. How can that be arranged?

- So I don't have a problem with clients of mine having kids out of state or family members named out of state. We live in a world now that so much can be done online, especially in a financial power of attorney. I don't see it being a problem, yes, there's a time difference. I mean, I have a daughter in LA myself and she's named, I don't think it's such a huge obstacle. To me it's more important that you pick the right player and the person that has the skillset to do the job. Then the fact that they're local, I think it's doable in other states. It goes though but remember of the power of attorney is governed by the state in which the power of attorney is executed, doesn't matter where the agent is.

- Okay, another one from anonymous. What is your fee structure for executing power of attorney and living will and will?

- Okay, so again, I always quote prices if you call my office for a consultation at the end of the consultation, I tell you what my fees are. I just can't, I'm not even gonna begin to tell you what they are because they don't know what you need. Do you need long-term care asset protection planning, do you just need a power of attorney, do you need a whole estate plan with all the documents. So I know how I work and I would happy to quote a fee if you call, it's just the easiest way to answer that.

- Yeah and that just, it goes into how much time, right?

- I work on a flat fee for what I do except for guardianship. But the flat fee is relative to what the work I'm doing. So I really...

- Yeah, hard to answer until you actually know what you're dealing with.

- And by the way, I'm not evading the question because everyone gets a quote. I'm one of these attorneys that actually will bring up money on a consultation even if the client doesn't answer because I'm very straightforward, very above board. I just like everyone to know what's going on.

- Perfect, and we do have one final question here from Art. "Can my sister revoke my power of attorney? She lied to my mom to have her become the new power of attorney. My mom has dementia with short-term memory loss."

- Okay, so when you say, can my sister revoke my power of attorney? You mean, can your sister revoke your naming as an agent under your mother's power of attorney? That seems to be what you're saying. No, so the only one that can revoke a power of attorney is the principal that executed it, okay? So that doesn't happen. Another agent under power of attorney can't revoke another, I mean so what I have is, I have successor language built into my power of attorney so that if the named agent or successor agents aren't able to do it, they can name people because I have language built in most attorneys don't. It makes it easier and avoids guardianship but the idea is that the principal does not get revoked by another agent, the agent doesn't revoke another person. The only way it gets revoked is the principal.

- Understood, and we've already got quite a few thank yous for you today for the questions that you have been able to answer and to help our viewers with. Laurie, wow, you were fantastic. We really, truly appreciate you. Once again, for those who are watching, what is the best way to get in touch with you and your firm?

- So I actually had that slide but you can say, I have a website, www.helpmelaw, H-A-U, P as in Peter, T as in Tom, M-A-N law, L-A-W.com. And our telephone number is 973-994-2287, 973-994-2287 And I'm happy to talk to anybody that needs my guidance. I can go into obviously more detail with each person's individual situation with a consultation. So thank you so much for having me. I love doing these and I appreciate you asking me to do it.

- Yeah, the power of power of attorney, we were schooled today, we've got information. Laurie, you're fantastic.

- Anything you wanna know about the power of attorney.

- But that's what you're here for, you can only know and move forward with information that you have and I think everybody here was able to add to their knowledge base today. So thank you so much for sharing all of your wealth of knowledge with us, Laurie.

- Thank you, everyone. Have a good day and get your documents in order.

- Perfect, and of course to all of our viewers, we just wanna let you know first, thanks for being with us today. Also just a heads up for those of you who've been asking, yes, this webinar will be available starting tomorrow. You will receive a link in your email that you can share with all of your friends and family members so please do so. Also, if you like this content, feel free to head over to our website, www.seniorlivinglive.com. We've got videos and podcasts available 24 hours a day, seven days a week, all about senior living. We appreciate you all being a part of our Senior Living Live webinar. Have a great day, everybody.

- Thank you, everyone.