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Letters You Are Glad You Did Not Have To Write

We Get Letters… We Get Lots And Lots Of Letters

(Note: Not Edited For Spelling Or Punctuation. Not Legal Advice!)

LETTER #1

Deed with joint tenancy doesn’t mention right of survivorship

My father purchased land with seller to buyer financing. Because my dad was a single unmarried man and it was seller financing, the seller asked my dad to put someone as a joint owner on the deed (to keep making the payments in the event my dad passed). My dad put my oldest sister as a joint tenant/owner as he was advised at the title company. I don’t think he fully understood. My sister never made one single payment I have all checks to prove. She didn’t even know she was a joint owner. My dad mentioned to mother, friends and to siblings me many times my sister wasn’t the real owner it was just for security bc the seller required security of receiving continuing payments.

My father sadly passed, and now my sister doesn’t want to change title practically keep the land to herself. The document doesn’t specify right of survivorship just say joint tenant can that help? Everyone knows my dads true intent we were all children from the same mother he loved us all the same. I feel he didn’t know what joint tenancy was and just signed. I am really worried bc my sister is taking over the property and not allowing entrance.

What can I use as defenses, thanks.

The Answer Is: “You Are Screwed. And Your Little Dog, Too!”
A Deed Is A Deed Is A Deed

For a number of years, I tended bar. Occasionally, a bar fight would erupt. Very exciting. My fellow barkeep Matt loved when that happened. He would vault the bar grinning, not waiting for assistance, eager to sort things out. Not me. I figured that was a job for the football player-bouncers. A bar fight is an ambiguous, fluid situation. Resolution is required. Application of force will be necessary. And litigation is a bar fight. In for a dime, in for a dollar.

But what if there is no fight? What if the facts are clear? Bouncers do not go looking for trouble. And they do not get involved in every disagreement. How does that apply here?

Michigan courts are extremely unwilling to upset the applecart. Especially when that applecart consists of a valid deed. There are plenty of dubious situations that folks can fight about. Then the courts and the judicial system can roll up their sleeves, get into the fight, start cracking heads.

Our letter writer’s case is not a bar fight free-for-all that needs sorting out. This is a Mike Tyson, one shot to the head, KO, 30 seconds, hope-you-did-not-blink-because-the-main-event-is-over type of thing.

Your father signed the deed. He was competent. He did not have a gun to his head.

Q: Was it a good idea or a bad idea?
A: Nobody cares.

Q: Is sister a generous angel or jealous limb of Satan?
A: Irrelevant.

Q: Did dad wish he had never signed?
A: Why are we still talking about this? Train left the station. Elvis left the building. Fat lady sang. Somebody already stuck a fork in it. It is done.

Folks Do The Darnedest Things

When a good person acts with the best intentions but brings about the worst results – that is tragic. Terrible. In Heaven above, the angels weep. Ever watch a movie, yelling at the screen, “Don’t open the door!” “Stay out of the basement!” “Run away!”? Reading this letter is like that. For me. Danger, danger! But, of course, it is too late. For them.

Why in the world did dad sign the deed?

“Because my dad was a single unmarried man and it was seller financing , the seller asked my dad to put someone as a joint owner on the deed (to keep making the payments in the event my dad passed).”

Dad was motivated to do the right thing. Seller gave dad plausible reasons. But. The stated “reasons” make absolutely no sense at all. Not a single part is accurate or reasonable. Sure, it is true that folks do this sort of thing all the time. On the advice of friends, neighbors, and Internet Experts. You might think these advisers would know better. But they do not.

Spoken Words Worth The Paper They Are Written On

“My dad mentioned to mother , friends and to siblings me many times my sister wasnt the real owner it was just for security bc the seller required security of receiving continuing payments.”

Sometimes motivations matter. Once in a while, verbal statements are relevant. But not usually. And not when we have a written deed that clearly creates ownership rights. Circuit courts, title companies, buyers… none of them care what you thought you were doing. Or why you were doing it.

Dad made sister joint owner by legal, valid, written, notarized, recorded and unchallenged deed. His motivations and understandings were incorrect. But that does not matter.

The Road To Hell Is Paved With Good Intentions

“Everyone knows my dads true intent we were all children from the same mother he loved us all the same. I feel he didnt know what joint tenancy was and just signed. I am really worried bc my sister is taking over the property and not allowing entrance.”

Hatfields & McCoys. Montagues & Capulets. Celtics & Lakers. Laimbeer & Bird. U of M & Ohio State. Historic feuds. This is how they get started… What chance does this family have to enjoy the peace and prosperity dad intended? Experience suggests that sister will treat the property as her own. She will be correct, legally. Cousins hating each other. Poison of resentment and ill-will seeping down the generations. Do not let this happen to you. Or your family.

Dad could have provided for the family. Avoided strife. Lawyers do come in handy, sometimes!

LETTER #2

How can I withdraw funds from my husbands bank account if I am not on his account?

Husband is a stroke patient in a nursing home. Medicaid covers all expenses. He has money from social security in his bank account that I can use to send to him for personal needs. I have all account numbers, ss number, etc but no pin number.

Powers Of Attorney: Faster Than A Speeding Bullet… More Powerful Than A Locomotive…Able to Change The Course Of Mighty Rivers, Bend Steel In Your Bare Hands?

You don’t have to be Superman to get the power to make a major difference in your loved one’s life. If your husband is still mentally alert, even though he may not be physically capable, he can give you the authority you need to take care of his business.

Powers of attorney are not all the same. They can differ radically in the way they operate and in your ability to get the job done. Be sure that the lawyer drawing up the power of attorney knows your goals. Of course, that is nice to say, but how to get it done in the real world. The answer is that most powers of attorney are intended only to allow you to pay the person’s bills. And pay. And pay. And keep on paying until the money is all gone. Which results in nursing home poverty. Powers of attorney can be drafted to save the family resources. Make sure that your attorney knows that this is your intention.

Here Comes The Judge!

If your spouse or loved one is not mentally competent, you have a date with probate court. The judge will decide (by clear and convincing evidence) whether you should have authority over your loved one. Guardianship is all about the person’s health and day-to-day living. Guardianship includes the right to make basic, routine money decisions. Conservatorship is all about the money.

Both forms of living probate involve special rules, court supervision, annual reporting and a limit on just what you are able to do with your loved one’s resources. Avoiding probate while you are alive should be, but usually is not, a laser focus of your estate planning.

Social Security…

The Social Security Administration does not care about your power of attorney. And they do not care about your guardianship or conservatorship either. Social Security operates across the globe and cannot be bothered to figure out the ins-and-outs of every judicial and legal system. It would be impossible.

What Social Security has done is create its own “brand” of guardianship. Your disabled loved one gets Social Security. Your guardianship and power of attorney are useless. Now you have to jump through the Social Security hoops and become Representative Payee. Now you can manage the social security.

Easy, huh?

You Choose!

There is nothing inevitable about nursing home poverty. Peace of mind and security are waiting for you. Right now. It is a choice. Despite what “everybody else” says. Despite their attempts to disguise the elephants in the room. For over thirty years, people have told me, “I’ve never heard of this before!” “If this is real, why doesn’t everyone do it?” “My lawyer/financial advisor/brother-in-law/accountant/tax person/banker/best friend/fill-in-the-blank never said anything like this…”

Applying for benefits does not mean Nursing Home Poverty or silly Spend Down. Learn how to preserve your loved one’s lifesavings, business, cottage, life insurance. Thousands of middle-class families have learned and use these techniques. Why not yours?

Got Questions? Get Answers!

GET ANSWERS NOW… THE CALL THAT CHANGES YOUR LIFE…
COME TO A WORKSHOP OR ATTEND A LIVE WEBINAR FROM HOME…
(800) 317-2812

Health Care documents: what do you need?

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A health care crisis can arise in an instant – even for the healthiest person – so every estate plan should have a health care component. This provides the powers and instructions to your loved ones and doctors to carry out your wishes should you be unable to express them.  The proper health care documents should be drafted by an experienced Estate Planning law firm, such as Carrier Law.

There are several forms to consider:

  1. HCPOA – The Health Care Power of Attorney document is a critical document for all adults – probably the most important document on this list. When properly drafted, it allows a patient advocate to make health care decisions when the patient is not competent. It can allow the patient advocate to sign a POST – Physician Orders for Scope of Treatment. It can also cover HIPAA situations. Caution: When being admitted to the Hospital or other facility, you are often asked to present or sign a Health Care Power of Attorney (HCPOA). If you already have such a signed HCPOA, bring it with you – especially one drafted by Carrier Law. Our Health Care Power of Attorney document is much broader than most, and signing a new one could revoke it. (Most HCPOAs have language stating that upon signing the document you revoke all prior HCPOAs.)
  2. HIPAA Authorization – (Health Insurance Portability and Accountability Act) This authorization is used to allow the personal representative to obtain medical records, billing records and communicate with health care professionals.  It is not used to make medical decisions. It can be used even if the patient is competent.
  3. Care Directive – Provides instructions to others as to what the patient’s wishes are for certain care that might be provided. Each care directive is unique in what the instructions provide. It may cover items such as: Living Will issues, life-sustaining treatment, artificial nutrition and hydration, and comfort care. It could include organ donation wishes, funeral and burial instructions, and instructions regarding an autopsy. These are all very important wishes for many people. Carrier Law recently updated their Care Directive instructions to be more comprehensive. If you previously filled out a Care Directive with Carrier Law and would like to update it, you can download a copy of the new version here.
  4. POST (Michigan Physician Orders for Scope of Treatment) – This document is put into place when the patient has less than one year to live. The POST form must be signed by the patient’s physician, the PA, or nurse practitioner. It is a standard State of Michigan form that details the patient’s end-of-life care wishes. It covers: resuscitation, ventilation, defibrillation, and comfort measures. The recommended time to complete this document is when the patient is being discharged from a hospital and is going home, to a nursing home, or other location outside of a hospital.
  5. Funeral Representative Designation – A funeral representative is a person designated in a legal document as having authority to make decisions concerning the handling, disposition, or disinterment of a decedent’s body. The funeral representative is authorized by statute to make decisions regarding cremation and has the right to retrieve from the funeral home and possess cremated remains of the decedent immediately after cremation.
  6. Guardianship – A Guardianship (which is set up through Probate Court) can often be avoided with the proper legal health care documents in place before a crisis arises. A Guardianship is often a more expensive and time-consuming proposition, compared with the properly drafted health care documents.

How do these health care documents compare, and do I need all of them? That depends on your life stage and overall health.
Click below for a visual comparison of each document.

 

The SECURE Act – what does it really secure?

The House of Representatives has passed a bill that could mean changes for all Americans with the most common type of retirement plan, such as a 401(k) or Individual Retirement Account (IRA). Proposed changes to retirement reflect the realities facing many workers today.

The SECURE Act is being proposed as an improvement to the retirement system, and stands for “Setting Every Community Up for Retirement Enhancement Act of 2019”. Interestingly, most of the changes either highlight the difficulty of saving for retirement, or the challenges faced by many workers today who are facing a future with a shaky Social Security System, and insufficient retirement funds. While there are some positives, some of the changes proposed would simply make it easier for people to retire with less money and less security than before.

Access to Retirement Plans for Part-time employees

With the rise of the “gig” economy, more people are working part-time jobs. This bill would allow long-term part-time employees the opportunity to participate in retirement plans, if their employer offers one.

Disclosure of Estimated Retirement Income

Employers would be required to disclose an estimate of future retirement income on 401(k) statements. This would hopefully show employees how much more they need to save, if the assumptions used for those estimates are realistic. The assumption for the estimates will be set out by the Treasury Secretary.

Use of Retirement Savings for Student Loan Debt

With the rising costs of higher education, this bill would provide some relief for those who find themselves with crippling student loans that can’t be discharged in bankruptcy. They could now also reduce their retirement savings to pay off those loans.

Access to Retirement Plans for Small Employers

Another change would make it possible for small employers to group together in offering a retirement plan. This would be helpful, since 42% of private-sector workers don’t have access to a workplace retirement plan.

Reduced Regulations on Annuities

More 401k plans will be able to offer plans to convert retirement savings into annuities. This should greatly benefit insurance and annuity companies by increasing their market and reducing the regulations for offering annuities as part of retirement plans.

Extended Retirement Contribution Age

As more people need to keep working well past normal retirement age, this bill would allow people to continue adding to their retirement plans after age 70-1/2 and would allow people to hold off on withdrawing from their plans until age 72. This also reflects the fact that many people probably haven’t saved enough for retirement by the time they hit 70-1/2.

Use of Retirement Savings for New Children

Many new parents find that their health insurance plan still leaves them with thousands of dollars of out-of-pocket expenses for the birth of a child. Rather than making any changes to the health insurance system, or increasing entitlement programs for families, this bill would allow these parents the opportunity to reduce their future retirement savings by spending some now on these expenses for new children. This will probably not help increase the falling birth rate in the country.

Restrictions on Stretch Distributions

With the US budget deficit in the trillions, this bill would bring in additional revenue in the form of increased and accelerated income taxes paid by beneficiaries of retirement plans. Rather than being able to stretch out inherited retirement money over their lifetime, beneficiaries (your children) will have to take out money over 10 years, likely bumping them up to a higher tax bracket, and increasing the percentage of the inheritance that goes to taxes. What does this mean? Let’s look at an example.

A single 45-year-old making $100,000 inherits a $1,000,000 Traditional IRA from her parents. She can either cash it out immediately (which is what the vast majority of children do) or she can stretch out the distributions.

Cash out: Based on her income and 2018 tax rates, she would be taxed at an effective rate of 33.48%, leaving her with $665,200 of inherited cash.

Current Stretch Rules: She can opt to take the required minimum distributions over her life expectancy. After 10 years, she has paid a total of $243,000 in taxes, received approximately $368,000 in required minimum distributions, and has $1.64 million left in the IRA.

Proposed Stretch Rules: She can opt to take the required minimum distributions for a maximum of 10 years. After 10 years, she has paid $615k in taxes and inherited a total of $865,000.

Below is a graph that visually represents the difference in these rules, assuming the child invests the required distributions after paying taxes and has normal living expenses and Social Security Income:

Image credit: “The Hidden Money Grab in The SECURE Act” James Lange, Forbes Contributor

As usual, all parties involved will continue to look for ways to maximize their benefits under any changed law. We will continue to look for ways to protect and preserve your assets for you and your family. There are options involving trusts that could still preserve a lifetime income stream for children who inherit your retirement savings.

HIPAA, Health Insurance Portability and Accountability Act

Carrier Law has added to its Estate Planning and Elder Law arsenal of tools a HIPAA authorization in accordance to the Health Insurance and Accountability Act’s provisions.

What is HIPAA?

HIPAA is an abbreviation for “Health Insurance Portability and Accountability Act”. In 1996, Congress enacted HIPAA to protect individually identifiable health care information from being disclosed to an unauthorized individual. In 2002, the Department of Health and Human Services (DHSS) finalized standards for the electronic exchange, privacy and security of health information.

HIPAA requires any health care entity, including a physician’s office, a hospital or other health care facility, or an insurer, that deals with personal health information to follow strict rules about how to handle protected information. For example, Health and Human Services allows physicians and insurance companies to exchange individually identifiable health information to pay a health claim but would not allow them to release it publicly.

HIPAA also limits the ability of a new employer health plan to exclude coverage for pre-existing conditions. This means a person who has health insurance coverage can change jobs — and therefore health plans — without worrying that a condition that they already have, such as diabetes or asthma, would not be covered under the new health plan.

Some Pros and Cons of HIPAA

Pros

HIPAA benefits for the patient:

  • Grants the patient the legal right to see, copy, and correct their personal medical information.
  • Prevents employers from accessing and using personal health information to make employment decisions.
  • Enables patients with pre-existing conditions to change jobs without worrying that their conditions would not be covered under a new employer’s health plan.

Cons

HIPAA’s effects have not all been positive.

  • In a time of a medical crisis, a patient may be incapacitated and not able sign a HIPAA authorization granting someone access to needed medical information. Therefore, the HIPAA authorization must be signed and in place before the medical crisis arises.
  • The American Medical Association claims that the HIPAA regulations are a tremendous burden on the doctors and healthcare providers to comply with the complicated rules.
  • HIPAA has spawned a mini-industry of companies and consultants who help medical professionals comply with the law’s lengthy provisions. All adding to the cost of healthcare.
  • Some professionals who deal with medical paperwork have become overcautious about releasing protected information. For example, some physician’s offices now refuse to mail test results, requiring patients to pick them up in person. Some hospitals require physicians to submit written requests on their own letterhead for information on a patient’s condition, when the law allows this information to be provided by phone.

Carrier Law Cares

To make sure you are prepared in a time of medical crisis to allow authorized individuals access to your health care information, Carrier Law will provide, upon request, free of charge to all Carrier Law’s past and current clients a HIPAA authorization. Call our office for details.

To download our HIPAA form, click here.

What happens to your Estate if you die without a will?

by Molly Black, Director of Legal Services

If a Michigan resident dies without a will, otherwise known as dying intestate, the intestacy laws under the Estates and Protected Individuals Code (“EPIC”) dictate who will inherit the property of the decedent. This provides for an inflexible pattern of distribution which may not distribute your assets according to your wishes. The highest priority is given to their surviving spouse, followed by their descendants (children, grandchildren, great-grandchildren), parents, and siblings. The amount that a spouse will inherit depends on several factors, including whether or not it was a blended family.

Any jointly-owned property or accounts with named beneficiaries (commonly, life insurance policies and retirement accounts) will pass directly to the co-owner or beneficiary without going through the probate process.

There is also the question of who will administer the estate. A properly executed Will designates a Personal Representative to carry out your wishes after death. Without a Will, the probate court will appoint someone to administer the estate.

What problems could arise if you die without an estate plan?

The first problem your family could face after your death is determining who will make funeral arrangements. Without a legal document in place that appoints a funeral representative, a Michigan statute will dictate who has the authority to make decisions surrounding the funeral. This includes making decisions about burial vs. cremation, funeral location, and cemetery arrangements.

Secondly, without a Will, there is no guarantee that your property will pass to your intended recipients. Death doesn’t bring out the best in people and when money is involved, things can get ugly. This is especially true in blended families when your biological children and stepchildren don’t get along. You might have a better relationship with your stepchildren, but without a Will, they will not be treated as your own. This can also be devastating to unmarried couples. Intestacy laws only recognize your legal and blood relatives, so an unmarried partner will not inherit their deceased partner’s property if they die without a Will.

In addition to the disposition of property, parents also need to consider their minor children. If you pass away and leave a minor child behind who has no other legal parent or guardian, the court will select a guardian based on the best interests of the child. The court-appointed guardian may not be your first choice, so executing a Will allows you to appoint a guardian of your choosing.

What can you do now?

Planning ahead provides a road map for your family and provides reassurance that your property is passing to your desired beneficiaries. A properly executed estate plan will nominate a Personal Representative of your choosing to handle the administration process, provide clear distribution instructions and lessen the likelihood of family conflict. Everything from burial arrangements, to pet care, to guardianship for minors, to distribution instructions for your family heirlooms can be planned for by creating a comprehensive estate plan.

In addition to giving you peace of mind, having a plan in place can circumvent arguments among family members which will undoubtedly lead to wasted time, expense and family turmoil.

3 Critical Questions about Estate Planning that Every Parent Should Ask Themselves

by Samantha Sprague, Attorney

CONGRATULATIONS! Becoming a parent is an amazing experience. One thing you should be accustomed to by now is asking questions. Sometimes you get a lot of ‘answers’ to questions you may not have even known to ask.

Whether you’re brand new to the parenting gig, or have several years under your belt, below are 3 common questions that every parent should consider.

1. What happens if I can’t make my own choices?

Self-care is important, to your sanity and to your health, and sets an important example for your little one. I meet with a number of parents who come in with the primary goal of taking care of their kids.

It doesn’t matter if the kids are 2, 22 or 55 – every good parent wants to make sure their kids are protected. However, the first thing any parenting book will preach is to make sure you take care of yourself.

Estate Planning is no different. Even before you bring your bundle of joy into the world, there are two documents you should have in place: (1) Healthcare Power of Attorney and (2) Financial Power of Attorney. This is the entry level of protection to make sure that if something awful occurs (e.g. car accident, stroke, medical procedure, etc.) you know who will be managing your assets and making medical decisions for you.

This is something that you should have in order before your little one arrives, but if they’re already here, there’s no time like the present to get started.

2. Who is going to take care of my child if I can’t?

No one person is invincible. You need a backup plan in case life goes drastically wrong and you are no longer able to care for your children.

What happens if you die?

Some people leave it up to chance and rely on the probate courts to pick someone to raise their kids. Generally, the courts will give preference to family members, but there are a lot of factors that are taken into account for something called “Judicial Discretion.”

Judicial Discretion means that where your kids end up is entirely in the hands of the probate judge, a person who has never met you, does not know your family, and is unaware of your wishes.

What can you do?

Every parent – regardless of how much money they have in the bank or what they own – should have a will. A will is where parents get to determine who is going to raise their kids if they cannot.

If a parent has guardianship and conservatorship language within their will, they get to choose who their child will live with and who will manage the stuff they leave behind for their child.

This does not eliminate parental rights if your child still has a surviving parent. However, if both parents should die or be incapacitated, the testamentary wishes (Will) outlined by the parents serve as guidance for the court.

There are other considerations that should be addressed with blended families, step-parent’s rights, and same-sex parents.

Each situation is unique and you should consult with an attorney on what your legal rights are and how you can make sure you are putting the right documents in place to provide surety that you decide who raises your kids.

3. How do I protect my kids with my Estate Planning?

As parents, we are hardwired to look out for our kids, to protect them, and to teach them to protect themselves when they are able to.

However, everyone approaches parenting a little differently.

There are helicopter parents trying to ‘bunk’ with their college-aged kiddo, and then there are those employing the sink-or-swim method my grandpa used to teach my mom how to swim in Lake Erie.

With your estate plan, you can put ‘safeguards’ in place for minor children, so the assets you leave are protected both FOR them and FROM them until they learn how to manage the money.

One way to ensure that anything you leave is protected is to create a Revocable Living Trust. This is a document that can be modified as your family grows and requires different types of protection.

A common practice within trusts is to put age restrictions in place. When you have multiple children of different ages you can ensure that minor children receive what they need while still allowing for a fair distribution.

If you are like many young parents, you may find that you are worth more dead than alive due to the low cost of life insurance. Making a trust the beneficiary of life insurance policies can ensure the money is protected for your kids.

There are numerous options for protecting assets for your kids. However, whatever you decide to put in place, it is important to remember that as your life changes and your kids grow, you should plan to update your documents. We recommend annual or semi-annual reviews to make sure your documents evolve along with your family.

Client Success Stories…

We were very happy with the information at the workshop on Estate Planning [LifePlan workshop]. Amanda was very helpful in explaining the options we could choose from to protect our assets from excessive taxes.

All questions were answered in depth and in a manner that was very understandable. I left feeling confident that we can contact them at any time for help navigating the system.

The staff are incredibly professional. My mother was treated with utmost respect. Her paperwork was organized and concise. I dealt with David and Jim and they spoke in terms my mother and I could understand.

I was totally lost when my husband’s dementia got bad. David and his group helped me feel in control again. They are there to help me whenever I need them. I should have done this sooner.

Perfect balance of pleasant and professional. Starting with workshops with targeted info, to chit chat with David (and all the staff we met) – great experience. Thank you!

My husband and I just returned from your workshop in Portage…We are so pleased we attended and came away with so much information and insight. The workshop was well organized, well presented and your staff was wonderful. Patrick made things fun, and as he promised, the time flew by. Thanks you again for 2 very well spent hours.

Donna & Stephanie are extremely professional, on top of everything, friendly and just a joy to work with. Very prompt on phone calls, emails, etc. I am very thankful for these two people!

We have been extremely pleased with the professional service of David and the staff. It has been a pleasure working with everyone to make sure our future is secure. David was also very helpful finding an out of state attorney to help our parent’s address their Elder law needs.

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“The Law Offices of David L. Carrier is an estate planning and elder law firm located in Western Michigan. Our main office is in Grand Rapids, and we have 3 other conveniently located offices in West Michigan. We specialize in medicaid crisis planning, estate planning, elder law, probate, wills and trusts.

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