THE FAMILY MENACE

The article explains how an elderly widow was conned and bullied out of her life savings. When her husband passed a way, 83-year-old Betty Halligan signed a Power of Attorney over to her grandson – and deeded her house to him as well. Instead of protecting his grandmother and her assets, the grandson stole from her and began proceedings to evict her from her own home – using the Power of Attorney to do it.

Indeed, reports of Power of Attorney Abuse are increasing across the country. The AARP (American Association of Retired Persons) reports the following:

“[Power of Attorney Abuse] typically begins when an older adult, usually a woman whose husband handled the finances, becomes widowed and starts to fall behind on her bills. Often, an individual’s diminished mental capacity plays a role in the need for help from family or friends.”

And so the Power of Attorney has gotten a bad rap among some, what with all of the reports of Powers of Attorney being used for evil.

But as the old journalism adage goes: The news never tells you about the house that didn’t burn down.

A NEW HOPE

A show of hands: Who here has seen Star Wars?

Unless you’ve been living under a rock with the people who have never heard of Suze Orman, you are most likely at least familiar with the Star Wars saga – and, therefore, with The Force.

In Star Wars, The Force – replete with a “Light Side” and a “Dark Side” – is a metaphysical power that can be used for good or for evil.

So too is the Power of Attorney.

THE ESTATE PLANNER* STRIKES BACK

We have obviously seen examples of the Power of Attorney being used for evil. How about for good?

As I learned as a child when my card-carrying-member-of-the-NRA cousin taught me about gun safety, the best way to protect yourself from the evils of something dangerous is to learn about it. Knowledge and understanding are your best defenses against many harms, such as Power of Attorney abuse.

THE LONG ANSWER

A Power of Attorney designates another person to make important decisions – and act those decisions – on your behalf. This person then becomes your “agent.”

Generally, the purpose of a Power of Attorney is to allow your agent to make these decisions and take these actions in case you are unable to do so yourself. It can ensure that your finances and assets are properly maintained, even in the event of your absence or mental incapacitation. Alternatively (or additionally), it can give someone you completely trust the authority to make important health care decisions for you in case you become unable to do so for yourself (e.g., incapacitated, unconscious, etc.).

A Power of Attorney can be particularly necessary sometimes because hospitals, banks, government agencies, and other such entities may require a written Power of Attorney to allow someone else to act on your behalf. This makes planning ahead very important. Obviously, if you become incapacitated, you will be unable to execute a Power of Attorney during the very time that you need it.

I understand that many of my readers may think, “Well, I’m perfectly healthy right now, so I don’t need a Power of Attorney!” Remember, however, that estate planning is exactly that — planning. If you don’t set up your estate plan until you really need it, then it may already be too late. As I said in an earlier post, the best time to hire an attorney is before you need one.

One popular misconception of the Power of Attorney is that it makes someone your “boss,” granting your agent total control to override your life decisions should you and s/he ever disagree. This is absolutely not true. Your designated agent is just that – your agent. He or she works for you.

Additionally, you can always revoke a Power of Attorney – and don’t let anyone tell you otherwise!

A good analogy for a Power of Attorney is making a copy of a set of keys; you retain the originals for yourself, while giving a copy of they keys to a person you trust. Even if you grant a Power of Attorney to someone else, you can continue to make financial, medical, and other personal decisions for yourself. Additionally, just as you can make as many copies of your keys as you like, you can have as many Powers of Attorney as you like, designating multiple agents. For instance, it is not uncommon for people to designate one agent to handle their financial matters while a completely different person to handle their health care and medical decisions.

There are several different types of Powers of Attorney. As previously mentioned, some allow another person to handle financial affairs for you, while others entrust your health care decisions to an agent. Additionally, while a Power of Attorney can be general, it can instead be limited to a specific purpose or transaction (for instance, selling your car for you). This latter kind is sometimes known as a “Special Power of Attorney.”

Furthermore, you can even designate the time period for which your Power of Attorney will be in effect. You can have your Power of Attorney do one of the following:

• Take effect upon the occurrence of a certain event (i.e., a Springing Power of Attorney, such as your incapacitation.
• Last until a certain event (i.e., a Nondurable Power of Attorney), (such as your mental incompetence).
• Last forever (i.e., a Durable Power of Attorney) – at least, until you revoke it or die.

The most important knowledge of this powerful estate planning tool that is the Power of Attorney is that it can grant someone a great amount of authority over your personal matters. Therefore, it is important that you totally trust the person(s) to whom you are granting a Power of Attorney, with full understanding of the weight of the authority you are giving them over your life.

(For this reason, a neutral attorney whom you fully trust can make an excellent choice as a Power of Attorney designee. Attorneys, as members of the Bar, are subject to additional laws and rules of ethics that govern how they must behave as fiduciaries.)

To learn more about the different kinds of Powers of Attorney and determine how one or more may be right for you, contact a qualified attorney today.

- Joe Stanganelli, Esq.

INTELLECTUAL PROPERTY DISCLAIMER: Use of any and all trademarks in this and other blog entries is protected by the Fair Use Doctrine. Attorney Joe Stanganelli has no ownership of or affiliation with “Star Wars,” “The Phantom Menace,” “A New Hope,” “The Empire Strikes Back,” “The Force,” “The Light Side,” “The Dark Side,” and the like.*THE FOLLOWING DISCLAIMER IS MADE PURSUANT TO THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT AND OTHER APPLICABLE LAWS AND RULES OF ETHICS:

• The law will arbitrarily decide who gets your assets, regardless of your actual wishes and if you made those wishes known to anyone.
• The court, in a potentially lengthy and sometimes more expensive process, will decide who is entrusted to administer your estate (again, regardless of what your wishes may have been).
• The person who is selected to administer your estate will lack certain powers that your will could easily have provided htem.
• Intestacy often means uncertainty, especially for your loved ones.

For my own part, I am writing my will:

• …to make sure that particular assets of mine go to those who will properly appreciate them.
• …to designate an executor of my estate so the court doesn’t designate somebody who I don’t trust with this job.
• …to make sure my executor can start his or her job as soon as my will is admitted to probate (without a special provision in a will for this, the process can take weeks longer before the executor can begin his or her job).
• …to grant my executor certain powers so he or she can do what is necessary to settle my estate — without having to run to the court, hat in hand, to get permission.
• …to provide certainty for my loved ones.

It is a good idea to have an attorney review your estate plan whenever you have new developments in your life, such as:

• Marriage
• Divorce
• Birth of a child or grandchild
• Death of spouse, child, or parent
• Death of someone named in your current will
• Being diagnosed with a potentially terminal illness
• Coming into a windfall of money/assets (such as an inheritance, a prize, gambling winngs, etc.)
• You or your family taking on substantial debt
• Giving someone a substantial gift
• Taking on a new job that pays a great deal more
• Owning real estate
• Owning a business
• Owning a pet or other animal

The above is not an exhaustive list, but should give you some clue as to when an estate plan is due for a review. Additionally, anyone with a net worth in excess of $2 million has no excuse to not have an updated estate plan in place.

Additionally, it is a good idea to have an attorney review your estate plan about every two to five years. If it has been more than two years since your most recent estate plan review, strongly consider contacting an attorney who can meet your estate planning needs today.

MORE NEW YEAR NEWS

Now that we’re well into 2009, it’s important for clients and potential clients to realize how new tax laws impact their estate plans.

For starters, the annual gift tax exclusion has been increased to $13,000. The obvious implication of this is that an individual can now give up to $13,000 per donee per year tax-free. Additonally, these gifts can be split with one’s spouse – with the spouse’s consent – for a maximum of $26,000. Indeed, some married couples make their annual gifts as early in the calendar year as possible – to ensure that both spouses are alive at the time of the gifts (after all, a deceased spouse cannot consent).

Because of this, 2009 is a great time to review your trust plan and/or giving program (especially if it has been more than two years since your most recent estate plan review), so as to continue to maximize the use of lifetime gifting strategies. Additionally, all good trust plans, giving programs, and estate plans afford some degree of flexibility – not only to account for a client’s changing plans, priorities, and life developments, but also changes to applicable laws. Contact an attorney for your estate planning needs today.

- Joe Stanganelli, Esq.

(Suze Orman, for those of you who live under a rock, is the woman on TV who yells at people for spending too much money.)

I saw, as I flipped through the book near the pharmacist’s counter, that Suze Orman recommends to her readers that, in almost all cases, they opt for term life insurance over any other kind of life insurance.

To me, this is pretty ridiculous.

LIFE INSURANCE: BING!

When I think of a life insurance agent, I think of Ned Ryerson, the ineffectual insurance salesman from the movie Groundhog Day. As grating as old “Ned the Head” may be, however, non-term life insurance is often a key component of a good estate plan.

Obviously, a young, healthy, single person with no dependents most likely has little need for any kind of life insurance. Indeed, because of the very nature of life insurance, the longer you can wait to get it, the better.

Nonetheless, the unexpected does happen; that is why people have estate plans.

One obvious benefit of whole, universal or a similar life insurance plan is to maximize the transfer of wealth tax-free. Life insurance is usually not subject to estate taxes when it pays out. Thus, a substantial policy is often a great way to transfer wealth.

Additionally, estate liquidity can be a major issue in estates – especially those that are just barely large enough to be subject to estate tax. Estate representatives sometimes have to sell the family home, the family business, and other valuable and/or sentimental assets to pay estate taxes that are due. With a sufficient life insurance policy in place, the problem is easily solved; the taxes can be paid with the life insurance money without having to sell the estate’s major assets.

Life insurance is also commonly used in business succession plans, wherein the business partners are designated the beneficiaries, and then use that money to buy the decedent’s share of the business back from the spouse, children, or whomever received the business in the will.

Life insurance is not for everybody, and there are many different types of life insurance that can be used for many different things. Life insurance has a great many uses for estate planning (but term life insurance – while it has its uses – can tend to be of limited utility for estate planning needs). For more information on this topic, you should contact a competent attorney, CPA, CFP, or similar, neutral professional who won’t be compensated when you purchase a life insurance policy (unlike an insurance agent).

But not Suze Orman. At least, not on this issue.

(In all seriousness, I admire Suze Orman. She started off as a waitress living in a van and is now a multimillion-dollar success. To me, she is a living Horatio Alger story and an embodiment of the American Dream, and has earned my respect.)

Speaking of Suze Orman, apparently her own financial concerns could in fact be solved with life insurance and other estate planning mechanisms.

DOCTOR, HEAL THYSELF

According to an interview with The New York Times, Suze Orman is concerned about losing lots of money to estate taxes. More specifically, according to the interview, she is in a committed same-sex relationship with another wealthy individual (her producer). She is concerned that, because she and her partner cannot legally be married, they cannot make use of the marital deduction – and therefore a substantial portion of their substantial estates will be lost to estate taxes.

This presents an important, burgeoning issue in the estate planning field: GLBT planning. Neither the federal government nor any other jurisdiction in the United States (save Massachusetts) recognizes same-sex marriages (although some states have other, similar mechanisms, such as civil unions). This presents an additional challenge when it comes to estate planning for people in committed same-sex relationships. Typically, because of the marital deduction (i.e., the mechanism by which you can give things to your spouse tax-free), one common goal of estate planning is to reduce or eliminate estate taxes at the second death – because upon the first death between the married couple, the decedent spouse has presumably left everything (save for their initial $2,000,000 estate tax exemption) or most everything to their surviving spouse, tax-free. For couples who cannot enter into a marriage recognized by current federal law, like Suze Orman and her female producer, this is not an option.

First and foremost, Suze and her partner could each benefit from substantial life insurance policies, respectively (and it’s not like they can’t afford it, either; according to the same interview, Suze Orman’s liquid net worth is in the $25,000,000 neighborhood). This policy easily turns a few million dollars into several million dollars once it pays out. Furthermore, the life insurance payouts would be tax-free. This could easily make up for the loss to estate taxes.

Furthermore, Suze and her partner would each benefit from irrevocable living trusts set up for their partner’s benefit, set up to not pay out until the first death between them. This is especially ironic because Suze recommends to her readers in her 2009 Action Plan that they set up revocable living trusts. The problem with revocable living trusts is they are still subject to taxation as part of the grantor’s estate; because of their revocability, the grantor is still deemed to “control them,” and therefore own them as part of her estate.

“ACTION” ESTATE PLAN FOR SUZE ORMAN

Because Suze Orman is a good sport (I am assuming), I am going to give her some fun, free “legal advice” (I put “legal advice” in quotation marks so nobody can sue me later; this is all rhetorical and hypothetical, and not intended or presented as actual advice forming an attorney-client relationship. Please see the Notices Page for more information). Based upon the limited information I have, with all other things being equal, I would advise Suze to and her partner to each do the following:

• Set up irrevocable living trusts wherein:
  • The present interest income beneficiary is some favorite 501(c)(3) charity (say, PBS – an entity that Suze Orman has done a lot fundraising for). In other words, all of the income that the money in the trust earns goes to this charity. Suze, this is a great option for you. This not only avoids estate taxes later by foregoing all control between the two of you in your lifetime, but has additional tax benefits because the money is going to a 501(c)(3) organization – and is therefore subject to the charitable deduction.
  • Upon the death of the trust grantor, the money will be paid out to your life partner.
• Set up life insurance trusts for each other’s respective benefit. Take on life insurance policies for each other’s benefits (NOT TERM! That is, unless one of you is expecting to shuffle off this mortal coil soon), and designate the beneficiary of the policy to be the trustee of the life insurance trust benefiting your partner.
• (EDIT: For this to work, the beneficiary would have to be the owner of the policy.  Life insurance will not be free from estate taxation if the owner retains any incidences of ownership, such as being able to change the beneficiary.)
• Set up a Unified Credit Trust in your will to make use of your $3,500,000 estate tax exemption (note: $3.5 million is only the estate tax exemption amount for 2009; this amount is subject to change after 2009).
• Consult a knowledgeable attorney today about other aspects of your estate plan.

And Suze, if you’re reading this and this information helps, feel free to mention my blog on your show.

- Joe Stanganelli, Esq.

BEWARE OF FALLING SNOW

That is what the sign outside the Omni Parker House in Boston read on the day I met Jimmy. This led to a lengthy discussion between the two of us on businesses’ premises liability. Premises liability is the legal term used to describe a real estate owner’s duty to visitors (or, in legal terminology, “entrants”) to the property.

In Massachusetts, all real estate owners owe a duty of reasonable care to all lawful entrants upon their property. This includes a duty to reasonably inspect and a duty to make safe or warn. Here, because the Omni Parker House simply posted large, ridiculous signs that said, “BEWARE OF FALLING SNOW,” they most likely eliminated their liability should a big ol’ snow chunk fall on an unsuspecting passerby.

Jimmy told me about a major office building nearby that takes this one step further. They not only post signs to warn of falling snow and ice, but even hand out umbrellas to people as they leave the building. While this may be a bit too overcautious, the lawyers and accountants for that building’s management probably figured that it is cheaper to give out umbrellas than to even risk a lawsuit. This makes sense in this day and age, when even the very existence of a pending lawsuit – regardless of its strength – can be very expensive.

COMPLIANCE PRACTICE

An attorney I worked for a couple of years ago told me that most of the practice of law does not involve litigation; rather it is about compliance. Litigation is almost always a last resort because of the great expense and vast amount of time it can take. As Danny DeVito’s character, Lawrence Garfield, put it in Other People’s Money when discussing lawyers: “They’re like nuclear warheads. They have theirs, so I have mine. Once you use them, they [screw] up everything.”

GET A GUARD DOG

My parents’ Yorkshire Terrier, Bella (whom I discussed recently), epitomizes the type of attorney you should have.

Bella is normally a relatively quiet dog – with a caveat: Whenever anyone sets foot into my parents’ house – or comes near it – and Bella sees or hears them, she barks like crazy. She runs over to the person and does not rest until she sees the person, sniffs them, and – occasionally – licks their toes. In short, she is the perfect compliance lawyer.

This is not to say that your attorney should be actively sniffing you. That is probably a bit over the line. And if your attorney asks to lick your toes, you should probably leave his office straight away.

To put things another way: When Bella detects a disturbance – a new person, a new noise, that sort of thing – she perks up and focuses on it. Then, she immediately rushes to investigate, to ensure that the source of the noise is in compliance with how things in and around the house should be. Once she confirms the compliance, she turns back to her sweet, smiling self.

Granted, we have never seen Bella in a situation with an actual intruder who needs to be bitten and mauled by a Yorkie in a fairy costume; we don’t know if she would actually attack a bad guy, or simply lick his toes and happily prance away. It is the suggestion of the security that Bella provides, however, that is important. Bella keeps the bad guys at bay (presumably), and that is all that is important. What she would actually do to a bad guy is irrelevant.

The same is true of lawyers. The best use of lawyers is not as attack dogs – but as guard dogs. The ideal (and probably cheapest) time to hire a lawyer is before you need one. The best way to put a lawyer to good use is to have him provide you with the security and peace of mind in knowing that you are ready for anything. We lawyers like to be prepared – and to help our clients be prepared as well. That is how we thrive best.

If you have any questions about your premises liability, your estate plan, or other matters of preparation, contact an attorney you can count on today.

STANGANELLI’S FIRST LAW OF ECONOMICS

No matter the state of the economy – and how good or bad things may be – someone is getting rich somewhere.

I studied historical economic markets. Someone, somewhere, is always making money on a rising stock (or, in the case of a short sell, a falling stock). Some business is always performing swiftly. There were people who amassed large fortunes even in the Great Depression.

(Speaking of the Great Depression, and in the spirit of continuing to include interesting recipes on this blog (even though it’s a law blog), I found this recipe for Depression Cake online. Depression Cake was a common dessert during the Great Depression; most recipes do not use sugar, milk, or eggs, because they were scarce and expensive during the Great Depression. Anyway, try it out. Who knows? With the economic climate these days, it may become popular again.)

I also read cases – and saw a glimpse of the amount of litigation there is in the country.

STANGANELLI’S SECOND LAW OF ECONOMICS

Where Party A and Party B are separate entities in a given set of economic circumstances, three outcomes are possible: 1.) A wins, B loses.

Even among attorneys, however, the effects of economic collapse are felt. Presently, I know a lot of lawyers who are actually not faring so well right now. Many are out of work, and most others have seen their practices want for business. Additionally, a recent American Bar Association survey indicates that 69% of attorneys in the United States report that they will be negatively impacted by the recession – with a whopping 19% expecting to lose their jobs entirely.

Nonetheless, in the decaying fields of economic downturn, there are patches to be found where the grass is greener.

C SOMETIMES WINS

The American Bar Association puts out a monthly publication known as the ABA Journal. This month’s issue (billed on the cover as a “SPECIAL RECESSION ISSUE”) features a piece about Eleanor Breitel Alter, who heads up her law firm’s family and matrimonial law department (in other – more relevant –
words, she’s a divorce lawyer).

While bankers and lawyers and others pinch pennies, Ms. Alter finds her divorce practice to be doing just fine, thank you. “Moneyed spouses” whose jobs and/or stock have “gone to the devil” – as Ms. Alter puts it – are flocking to get divorced – when they might otherwise have waited – in an attempt to limit a court’s determination of their earning power. Additionally, people who are already divorced are bombarding Ms. Alter’s office with requests to get a permanent divorce order or separation agreement changed – in light of the economically bleak times.

Aside from the intellectually droll revelry to be had in observing Ms. Alter’s circumstances (i.e., a successful divorce attorney whose surname is a homonym for the sacred table at which her clients once wed) (get it?), it is clear from the article that, as the economy changes, people are making changes in their own lives that impact their assets and their families.

CHANGE

This leads me, albeit somewhat circuitously, to the topic of estate planning.

Anytime you marry, remarry, divorce, annul, or otherwise change your marital status, your estate plan may be dramatically impacted.

For starters (and I am going to type in all caps now to emphasize the drama of this point): MARRIAGE ALMOST ALWAYS VOIDS YOUR WILL.

When you marry, with rare exception, any will that you have becomes null and void. Once this happens, you need a new will unless you want your estate plan to be governed by intestacy.

INTESTACY

Intestacy is a fancy lawyer word for “the government gets to decide who gets your stuff, regardless of your wishes.” Many, many trees have been killed in publishing the complex laws that dictate how an estate is distributed in intestacy. And regardless of how it turns out, the lawyer (“C”) will definitely win.

(Intestacy can be especially distasteful when a person dies with no next-of-kin remaining. If this happens in Massachusetts, for example, the deceased’s property goes to the state government.)

Intestacy, quite obviously, is usually a bad idea. The advice I would typically give to a client is to pony up the dough to fix up a will now so that his/her loved ones don’t have to deal with a probably more complex (and probably more expensive) probate process later.

“YOU’RE DEAD TO ME!”

Divorce does not a void a will, but it does treat the divorced spouse as being already dead. This means that, when a court interprets your will, they will totally ignore anything that mentions the spouse you divorced. This probably seems like a good thing.

The problem arises, however, when alternative arrangements are not made. Let’s look at a basic example. Jack has a simple will that leaves everything to his wife, Jill, and names Jill as his executrix. A year later, Jack and Jill divorce. Several years after that, Jack dies – without ever having updated his estate plan. Now, the court will distribute all of Jack’s property will be via intestacy. Additionally, because no executor/executrix has been appointed (remember that Jill is treated as predeceased!), probate may be delayed because of the process of appointing an appropriate administrator for Jack’s estate. Time is money, and probate delays can be costly. This is not a good thing (except for “C”).

With rising divorce rates among society’s better heeled, estate plans will be impacted across the board. Naturally, if you are divorced, or considering getting married or divorced, contact an estate planning attorney to review your estate plan. Your estate planning attorney can help you make sure that your assets are distributed according to your wishes – no matter what happens.

JOKE OF THE DAY: How to Get Rich

“Then my wife’s father died and left us two million dollars.”

LOOPHOLE OF THE DAY: The Honorary Trust

Every trust has a purpose. Without a purpose, a trust fails.

The Honorary Trust was originally a device a grantor used as part of his last will and testament to ensure that one’s family members would take care of a piece of land or property – usually the grantor’s tomb (the grantor was frequently too distracted to take care of his tomb himself, being dead and all). Under an honorary trust, the beneficiaries use the money to take care of the designated property. They are under no legal duty to do so, but once they stop doing so, the trust’s purpose (i.e., the care and maintenance of the “honored” property) becomes frustrated, and the beneficiary loses all right to the trust money.

Obviously, a good way to ensure pet care post-mortem in states that have not legislated “pet trusts” is to set up an honorary trust to take care of the pet in question. Here, the pet is not the per se beneficiary, but receives the benefit of the trust funds by way of the human beneficiary. The human beneficiary is a beneficiary in name only; s/he is more of a guardian.

The trend is increasing in a number of states, however, to treat animals more like humans. Some states are making it easier to leave money to one’s pets outright. Additionally, as long ago as 1997, a Washington state court held that a chimpanzee could be an outright beneficiary of a trust (with a guardian ad litem, naturally).

SHE LOVED TROUBLE

For a nice, extreme example of the Honorary Trust in action, we need look no farther than the somewhat recently departed Queen of Mean herself, Leona Helmsley. The hotel empress and convicted tax evader provided in her will for a $12,000,000 trust to benefit (by way of a human beneficiary/guardian) her Maltese (“Trouble”) – an amount larger than any single bequest in Helmsley’s will. The appointed trust beneficiary/guardian estimated that care for the dog would run approximately $140,000 annually (most of this being for security; poor little Trouble had death threats against her at the time). Trouble’s veterinarian estimated that Trouble would live only another three to five years. In light of this information, a New York judge reduced the amount of Trouble’s trust from $12 million to $2 million – but upheld the trust otherwise (much to the chagrin, I imagine, of the human beneficiaries of Leona’s will).

So what’s the moral of this story? Well, I suppose it’s this (with apologies to the Helmsley Hotels):

If Leona Helmsley wouldn’t settle for an estate plan that didn’t adequately care for her pet, why should you?

BELLA’S BIRTHDAY CAKE

As I mentioned above, Bella had a birthday cake at her party.

The cake is good for humans too. I had some. It is delicious.

Here is the recipe:

INGREDIENTS:

1 cup flour
1 tsp. baking soda
1 egg
1/4 cup peanut butter
1/4 cup vegetable oil
1 tsp. vanilla
1 cup shredded carrots
1 tbsp. honey (optional)

ICING/DECORATIONS: Cottage Cheese, Peanut Butter, Shredded Carrots

BAKING INSTRUCTIONS:

Mix flour and baking soda.
Add remaining ingredients.
Pour into greased 8″ round cake pan.
Bake at 350° for 30 minutes.
Let cool.
Puree cottage cheese in blender.
Ice cake with cottage cheese
Decorate with more peanut butter and carrots.
Serve and enjoy!

To see more of Bella, visit her website (yes, my parents have set up a website for her) at http://www.bellanaples.com.

- Joe Stanganelli, Esq.