What happens when a Power of Attorney (POA) acts improperly?

What happens when a Power of Attorney (POA) acts improperly?

Answer:  A person appoints a power of attorney (POA) to make decisions for himself or herself – usually a spouse, parent, or adult child — for a variety of reasons. Most commonly, people create POA’s to be prepared if tragedy strikes, such as a car accident, or the mental decline that often comes along with aging. Without a proper POA in place, a family of someone with dementia or Alzheimer’s disease, for example, would need to go to court to obtain guardianship or conservatorship to be able to protect and make decisions for the person no longer able to do so.

When someone grants POA to another individual, it gives great power but also great responsibility. Unfortunately, some people who are granted the power of a POA are dishonest and may sometimes take advantage of the power for their own selfish interests. They may take money from a bank account, retitle investments, sell real estate or an automobile to a family member at far less than fair value, or even cause changes to a will, trust, or beneficiary designation in a life insurance policy. Some POAs even begin writing checks from the person’s account to pay their own bills. All of these can give rise to breach of fiduciary duty claims, which can lead to civil – and sometimes even criminal – remedies.

What do you do if you suspect someone has abused the authority given to him or her as a POA? The first step is to consult with an experienced probate litigation or elder law attorney to learn what rights and options you have.

Legal Actions That Can Be Taken Against a Dishonest POA

Generally, there are two different types of legal actions that can be taken to try to undo the damage caused by a dishonest POA. If the person who created the POA is still alive, then typically a guardianship or conservatorship proceeding is needed to appoint a proper decision-maker. Then a claim can be filed through that legal proceeding, or at times, a separate lawsuit, to recover the assets that were wrongfully taken, transferred away, or spent.

Just because a POA is already in place does not mean you cannot obtain guardianship or conservatorship. The probate court is there to protect vulnerable adults, as well as those who have passed away, and judges do remove legal authority from POAs who act improperly.

The second course of action is available if the person who was taken advantage of is no longer alive. Then, it is necessary to raise a breach of fiduciary claim in the name of the deceased person’s estate – through the personal representative (which is what executors are called in Michigan), or in a related court petition in probate court.

Many people mistakenly assume that a person holding the POA automatically becomes the estate administrator after death. That is not the case; rather the will governs who controls the estate — or the probate judge selects someone if there is no valid will. Even when the person who abused a POA in turns becomes the executor, a breach of fiduciary duty claim can still be filed against that person, if properly asserted in probate court.

What to Do If a POA Acts Improperly

If you find yourself in the unfortunate situation of being concerned of POA abuse – or if someone is wrongly accusing you of committing it – it’s critical to work with the right Michigan power of attorney lawyer, as soon as possible. While many lawyers say they can handle cases of this nature, this area of law is very specialized. Working with a good attorney who really knows, and has handled, cases involving POA abuse and fiduciary duty breaches can make the difference between winning and losing.

If you need help with Elder Law, Estate Planning, or any other Elder Care legal matter, you can find thousands of Elder Law Attorneys and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care answers to your elder care questions as well as elder care articles to help you plan for and deal with your elder care matters on the following websites:

ElderCareMatters.com/ElderCareAnswers
ElderCareMatters.com/ElderCareArticles

Power of Attorney (POA)
Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
An ElderCare Matters Partner


What kind of planning is needed to qualify for Veterans Benefits?

What kind of planning is needed to qualify for Veterans Benefits?

Answer:  One of the benefits of serving in the military is the potential ability to collect retirement benefits from the Veterans Administration (VA). These types of veterans benefits could help many Californians. Though not available to all veterans, according to the VA, there are 1,053,964 veterans older than 60 living in California.

A VA pension, known as non-service connect pension, is paid to wartime veterans and certain dependents. This is a means-based benefit with the following requirements:

• The veteran must be 65 or older or permanently and totally disabled (not due to his or her own willful misconduct). There is no age requirement for a surviving spouse to qualify for widow’s pension.

• The veteran’s discharge must be other than dishonorable.

• For those who entered active duty before September 7, 1980, the veteran must have served at least 90 days of active military service. One of those days must have been during wartime.

• The veteran’s net worth cannot be “excessive.”

• The countable family income must be below a yearly limit.

The last two present opportunities for us to help veterans and/or their spouses. Normally irrevocable trusts can be used to reduce a veteran’s net worth to qualify for pension benefits. Unlike Medicaid, which has a five year “look back” period when considering the assets of a person applying for benefits, the VA currently does not impose a penalty for the transfer of assets if it was done prior to the filing of a formal claim, or notifying the VA of the intent to file a claim.

Many veterans have irrevocable trusts created to hold assets gifted by a veteran claimant or surviving spouse to reduce their net worth to qualify for benefits. To satisfy the VA, these trusts must meet certain limitations and requirements. This is a highly technical area that is subject to change, so if you are interested in obtaining these benefits, you need the services of an attorney experienced in creating planning documents that comply with the applicable laws, regulations and VA rules.

If you need help with Veterans Benefits Planning, Elder Law, Estate Planning, or any other Elder Care Matter, you can find thousands of VA Accredited Attorneys, Elder Law Attorneys and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care answers to your elder care questions as well as elder care articles to help you plan for and deal with your elder care matters on the following websites:

ElderCareMatters.com/ElderCareAnswers
ElderCareMatters.com/ElderCareArticles

Veterans Benefits Planning
Brian Chew, Esq.
OC Wills & Trust Attorneys
Irvine, California
An ElderCare Matters Partner


New York Elder Law Attorney Answers Today’s Question on ElderCareMatters.com

What is the difference between a Power of Attorney and an Executor (as answered by Joan Lensky Robert, Esq., a New York Elder Law Attorney)

Answer:  A Power of Attorney (a legal document in which you appoint an agent to make decisions on your behalf) is valid only during your lifetime.  An Executor takes over the management of your estate upon your death.  You name the Executor in your Will.

If you need help with Elder Law, Estate Planning, or other Elder Care Matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care answers to your questions as well as articles to help you plan for and deal with your elder care matters on the following websites:

 ElderCareMatters.com/ElderCareAnswers 
ElderCareMatters.com/ElderCareArticles

New York Elder Law Attorney
Joan Lensky Robert, Esq.
Kassoff, Robert & Lerner, LLP
Rockville Centre, New York
An ElderCare Matters Partner


Today’s Q&A on ElderCareMatters.com is about Nursing Home Medicaid and Transferring Assets

Can I transfer my assets to my children just before I go into a nursing home and still qualify for Nursing Home Medicaid?

Answer:  Probably not. Under the 60-month Lookback Rule, eligibility for Medicaid may be denied if the person going into the nursing home transferred assets for less than fair market value within 60 months before his application for Nursing Home Medicaid benefits.

And be very careful about giving away assets: once you have given away your assets, you cannot get them back by legal action. Don’t rely on your children to “do the right thing” and hold the assets for you in case you need them.

If you need help with Elder Law, Estate Planning, or other Elder Care Matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

And you can find thousands of elder care / senior care articles about a wide range of elder care matters on ElderCareMatters.com/ElderCareArticles.

Elder Law & Estate Planning Attorneys
Kevin Pillion, Esq.
Life Planning Law Firm, P.A.
Sarasota, Florida
An ElderCare Matters Partner


Today’s Q&A on ElderCareMatters.com – What are some Do’s and Don’ts about planning and preparing for your aging parents’ elder care needs?

 

Would you please provide us with some Do’s and Don’ts about planning and preparing for our aging parents’ elder care needs?

Answer:  As people live longer, health care costs will continue to rise. If you have elderly parents, now is the best the time to talk to them about planning for their future and discuss their legal and financial options. Some of the areas of discussion should include: the current status of your parent’s medical condition; the state of their finances; the status of their health care and long-term care coverage, if any; and the current status of their legal documents. The following advice will help ensure you have a legal and financial plan in place.


Do

Do speak to your parents

Sit down and talk with your parents. Gather as much information as you can about their financial and medical health. Once you have this information, you’ll be better prepared to see a professional.

Do ensure your parents are receiving appropriate medical care

Many seniors do not take care of their medical conditions properly. Make sure that your parents have their annual checkups, are taking any required medications, and are following through with the advice of their physician.

Do consult with an elder law attorney

An experienced elder law attorney will assess your parent’s legal and financial situation. He or she will devise a plan to pay for any unexpected health care costs or needs that may arise. This may involve the purchase of long-term care insurance, or a Medicaid plan, if insurance cannot be obtained or is unaffordable. An elder law attorney will ensure that all necessary legal documents, such as a last will and testament, power of attorney, health care proxy, living will and living trust, are complete and up to date.

Do meet with a financial planner

A skilled financial planner will assess your parent’s finances and ensure that their assets will be invested appropriately. A financial planner will take into consideration their age, medical and financial status.


Don’t

Do not do it yourself

If you do it yourself, it can cost you in the long run. Be cautious of online websites that offer do-it-yourself legal documents. Legal documents for seniors are not “one-size-fits-all” and can be quite complex.

Do not accept gifts from your parents without consulting a professional

If gifts are not made properly, accepting monetary gifts from your parents could cause them to incur gift taxes, and may cause you or a recipient to incur capital gains taxes. Further, gifts can have adverse Medicaid consequences in the event that nursing home care is needed within a five-year period.

Do not be your own geriatric care manager

Hire a geriatric care manager, who will assess your parent’s situation, create a care plan, coordinate and monitor services. Many elder law attorneys have a geriatric care manager on staff, or can refer you to one.

Do not delay

All legal, financial and medical documents should be organized and easily accessible, so if you need them in an emergency, you will know where to find them quickly. Ensure all insurance policies are current. And review all legal documents periodically in case they need updating.

If you need help with Elder Law, Estate Planning,  or other Elder Care Matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Law and Estate Planning Attorneys
Ronald A. Fatoullah, Esq., CELA
Ronald Fatoullah & Associates
Great Neck, New York
An ElderCare Matters Partner


Estate Planning Mistakes to Avoid – Today’s Q&A on ElderCareMatters.com

 

Would you please share some estate planning mistakes that we should avoid?

Answer:  Drawing up your estate plan is a major step, and it requires a lot of thought. You need to be thorough yet deliberate when you write up the numerous documents that make up your ultimate estate plan. Despite this incredibly important life decision, there are many people out there who forget to include certain aspects in their estate plan, or they make outright mistakes that cost their family when the estate plan is executed.

So here are a few tips when you are drawing up your estate plan.  Try to avoid the following missteps:

  • Never assume your finances are “too simple” for an estate plan. The fact of the matter is, any accounts or financial assets are a bit complicated, and they need to be protected in an estate plan.
  • Waiting too long before tackling your estate plan. Many people may incorrectly assume that so long as you write up your estate plan at some point, then you’re okay. But that’s exactly what’s wrong with this line of thinking: what if that point never comes? What if you unexpectedly are disabled or suffer catastrophic consequences that incapacitate you? Getting to your estate plan as early on in your life as you can is the best approach.
  • You have digital assets. Don’t forget about these. Your Facebook and Twitter accounts, as well as other online accounts, are all assets and you can dictate what happens to them when you’re no longer around.
  • Remember your pet! If you have a dog, a cat, or any pet really, then you can draw up provisions and plans for how that pet is cared for and who assumes responsibility for it.

If you need help with Estate Planning, Elder Law or other Elder Care Matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Estate Plan and Elder Law Attorneys
Richard B. Vincent, Esq.
Vincent, Romeo & Rodriguez, LLC
Englewood, Colorado
An ElderCare Matters Partner


St. Louis Elder Law Attorney Answers Today’s Question on ElderCareMatters.com

What does a Will do and how do you avoid probate?

Answer:  A Will allows the person creating it — the Testator (a man who creates a Will) or Testatrix (a woman who creates a Will) to: 1) identify the person, referred to as the “Personal Representative”,(I recommend naming at least two people – the first appointee and then a back-up (Successor) who will pay any last bills, collect any claims, pay debts and file lawsuits if necessary and ensure the instructions in the Will are carried out; 2) provide instructions about how assets are to be distributed – for example, “first to my spouse, and if he/she dies before I do, then in equal shares to my children”; 3) nominate a guardian for any minor or disabled children and 4) create a “Personal Property List” that allows the Testator/Testatrix to list personal or sentimental items to be given by the Personal Representative to the person identified to receive the item (i.e, your black velvet painting of Elvis).

HOWEVER, creating a Will is just the first step to avoiding having your assets supervised for distribution through the Probate Court. Once a Will is created, beneficiary designations must be made for all assets — bank accounts and certificates of deposit (CDs) should have “Pay Upon Death” designations, securities, including stocks, bonds and mutual funds should have a “Transfer Upon Death” designations; U.S. savings bonds have forms for naming beneficiaries. Life-insurance, retirement accounts and IRAs have forms enabling beneficiaries to be named. Real estate should have beneficiary, or lady bird deeds or deeds that name joint owners who will inherit by survivorship created and filed with the Recorder of Deeds office. A beneficiary can be a person, a trust, charity or other entity. The key is to make sure all assets have some type of designation that identifies who is to inherit the asset and that such designation is consistent with one’s Will — inconsistencies between beneficiary designations and instructions in a Will can cause enormous problems, hurt feelings, and end up landing one’s estate in probate to have such inconsistencies sorted out.

Although there are many websites, downloadable forms and resources for creating a Will, it is advisable to see an attorney to ensure that your wishes are reflected in your Will in such a way that they will be carried out, to find out the options you have for distribution of your estate and how to handle sticky or difficult situations — such as leaving assets for the benefit of a disabled child; how to ensure that if a child dies before you, that his/her share will go to who you want to receive it and answer questions you may have and not even know to ask.

If you need help with Elder Law or other Elder Care Matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Law Attorneys
Debra K. Schuster, M.H.A., J.D.
Debra K. Schuster, P.C.
St. Louis, Missouri
An ElderCare Matters Partner


Arizona Geriatric Care Manager Answers Today’s Question on ElderCareMatters.com

 

Arizona Geriatric Care Manager Answers the Following Question on ElderCareMatters.com: How do I know that my parent or loved one needs help with elder care matters?

Answer:  Here are a few signs that someone needs assistance with elder care matters:

  • Social activity has decreased and relationships are failing
  • Participation in activities like; clubs, dining with friends or religious services seems to be diminishing
  • House cleaning and organization aren’t important anymore
  • Personal hygiene and appearance is not clean (i.e. clothes are dirty, hair not combed, men not shaving)
  • Getting behind on bills; mishandling of finances (i.e. purchasing more than one subscription of magazine or newspaper, purchasing from TV, easily donating to would-be scammers)
  • Driving habit and skills are downright scary
  • Increase in alcohol consumption
  • Poor management of pain medications
  • Changed eating habits resulting in weight loss, no appetite or is missing meals
  • Inappropriate or obnoxious behavior (i.e. being unusually loud or quiet, paranoid or agitated)
  • Phone calls are made at inappropriate times or repeat phone calls about the same issues; same conversations
  • Constantly repeating themselves
  • Does not participate in holiday and family celebrations or events anymore

If you need help with geriatric care management or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find some of America’s TOP Elder Law Attorneys and Estate Planning Attorneys on 2 new websites sponsored by the national ElderCare Matters Alliance – ElderLawAttorneys.us and EstatePlanningAttorneys.us.

Geriatric Care Management
Heather Frenette, RN, MSN, CMC
Desert Care Management, LLC
Gilbert, Arizona
An ElderCare Matters Partner


Is money received from a Personal Care Contract subject to self-employment taxes?

Is money received from a Personal Care Contract subject to self-employment taxes?

Answer:  Yes,  money earned under a Personal Services Contract (PSC, for short) is subject to the self-employment tax.  You should consult with a tax specialist to see precisely what your tax liability is in your particular state.

If you need help with this or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find some of America’s TOP Elder Law Attorneys and Estate Planning Attorneys on 2 new websites sponsored by the national ElderCare Matters Alliance – ElderLawAttorneys.us and EstatePlanningAttorneys.us.

Personal Care Contract
Ivan Michael Tucker, Esq.
Law Office of I. Michael Tucker, PLC
Altamonte Springs, Florida
An ElderCare Matters Partner


Difference between an Elder Law Attorney and an Estate Planning Attorney

What is the difference between an Elder Law Attorney
and an Estate Planning Attorney?

Answer:  The difference between an Elder Law Attorney and an Estate Planning Attorney can be quite substantial. An Estate Planning Attorney traditionally focuses on dealing with what happens to a client after the client passes away. They would often deal with avoiding probate, minimizing estate taxes and distributing assets to the client’s loved ones exactly as the client wanted them to be distributed – to name a few. However, Elder Law Attorneys not only focus on estate planning issues (a very important part of elder law) but they also deal with issues that face clients during their lives. An Elder Law Attorney will help protect assets for a client if there is ever an incapacity issue. Elder Law Attorneys will often deal with Medicaid issues, Veterans’ Benefits, Special needs counseling and Long Term Care Issues – to name a few.

You can find some of America’s TOP Elder Law Attorneys who can help you with your family’s Elder Care Matters on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.
Elder Law Attorneys & Estate Planning Attorneys
Elder Law Attorney Jim Thomas
Law Office of Carol Thomas
Saginaw, Michigan
An ElderCare Matters Partner


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