A trust protector is an individual who is responsible for overseeing a trust and its trustees. The concept of the trust protector originated among settlors (individuals who create or establish trusts) who had trusts in offshore jurisdictions. However, trust protectors are becoming more popular as a means of safeguarding trusts established in the United States.
Trust protectors are appointed and granted powers in the trust document. There is no “one-size-fits-all” list of powers a trust protector should be given. A settlor must determine an appropriate level of authority given the settlor’s unique needs. Some examples of duties that a trust protector may perform include:
• removing or replacing a trustee,
• handling disputes between trustees and/or beneficiaries,
• amending the trust,
• adjusting disbursements according to changes in beneficiaries’ circumstances, and
• oversight of investment of the trust’s assets.
There are a variety of reasons for appointing a trust protector. A settlor may have concerns about a trustee’s ability to execute the settlor’s wishes. Or a settlor may want to split administration duties between a trustee and a trust protector. Appointing a trust protector also makes a long-term trust more flexible and able to adjust to unexpected events.
Although anyone may serve as a trust protector, it is generally a good idea to hire an independent third party or professional as your trust protector. An experienced elder law and estate planning attorney can help ensure that a trust protector is given the right balance of power to oversee your trust effectively.
People often think that because they have executed a Will, their wishes will be 100 percent honored when they pass on. Unfortunately, that is not always the case.
A Will that is not properly drafted and is not sufficiently specific can result in lengthy court battles. This can lead to disgruntled family members and grudges that last for generations.
A Will that is drafted from an Internet sample may be inadequate for your specific needs. It is best to hire an experienced estate planning attorney who can help you craft a document that is tailored to your situation, meets the statutory requirements for a valid Will, and protects beneficiaries and fiduciaries.
Here are some suggestions for making sure your wishes are honored:
-Keep copies of all correspondence and conversations with the drafting attorney.
-Be sure to update your Will on a regular basis.
-If you have previously executed a Will, destroy it, along with any drafts.
Some estimate that up to five million seniors are scammed each year in the United States. Financial scams against the elderly are no doubt a big problem and are on the rise.
Why Are Seniors Prone to Scams?
Experts say that seniors are susceptible because they’re usually home when scammers pounce – either in person or over the telephone. The elderly may also be vulnerable because they’re isolated or lonely, are more likely to assume someone is being honest, or may be unfamiliar with their rights.
What Can Seniors Do to Protect Themselves?
-If something sounds too good to be true, it probably is. Many times scammers claim that a victim is eligible for a huge prize but must act quickly and provide important personal information before he “loses it.” Think twice.
-Pay no attention to telemarketers. Many scams are perpetrated over the phone and it may be difficult for seniors to understand fully what they’re getting into. Try placing your number on the “Do Not Call” Registry.
-Never disclose important financial and personal information to a telemarketer or any stranger.
I recently spoke to Helene Bergman, the founder and director of Elder Care Alternatives, about the challenges faced by seniors and their caregivers. Helene is a certified geriatric care manager and is on the board of directors of the National Association of Professional Geriatric Care Managers.
Q: You have said that with “consistent and superior care and support” any senior can remain at home throughout life. Please explain.
A: I have managed the care of seniors with significant health issues who successfully remained at home for over a decade. However, to do so requires quality direct caregiving and other factors like adequate financial and social supports.
To design an appropriate care plan tailored to the senior’s unique care needs, we initially provide an assessment to better understand the senior’s medical and/or cognitive disabilities and to identify the supportive systems available to them. If there are family and/or friends, their roles are maximized to improve the senior’s quality of life. We link those with substantial finances to community resources, and we help others with limited finances secure Medicaid for home care. The seniors who fall in the middle class, with just adequate finances to cover their expenses, face greater challenges to remaining at home. Fortunately, in recent years, I’ve seen more situations in which long-term care insurance has eased the way for them.
There are other considerations, especially if the senior applies for Medicaid or even uses a private agency for home care. Does the senior’s residence lend itself to home-based care? Is there a separate sleeping area for the hired caregiver? Can the senior ambulate adequately or is a lifting device (Hoyer lift) necessary. These factors can negate eligibility and precipitate premature placement in a facility. However, if the senior can afford to pay privately for home care, even a studio apartment in New York City can be made adaptable, and the senior’s wish to remain at home can always be accommodated.
Q: Please talk about quality of life when an individual is faced with acute health problems.
A: Quality of life is a significant ethical issue for the senior and family caregivers. The question is whether to adhere to a “wellness” regimen vs. experiencing “pleasure.” I know of an instance where a senior was recently diagnosed with diabetes, yet gourmet food and wine had long been central to his lifestyle. Enforcing a strict dietary regimen would make him miserable, and his loved ones are struggling to balance medical advice with his way of life.
These decisions are very subjective and there is no right or wrong. If the senior is cognitively intact, the decision should be his or hers. If the family must make executive decisions for a senior with dementia, they need to ensure that they don’t unconsciously project their own preferences when trying to envision what their loved one would want.
Q: What other tips can you offer family caregivers?
A: Be proactive—don’t wait for a crisis. Have open discussions with your family members about how you will handle the possibility that parents will require significant care sometime in the future.
Become knowledgeable concerning your loved one’s medical and financial affairs. Know the names of doctors and have your name placed on the third party notification list for various insurance policies. Be in contact with your family member’s financial planner, broker and accountant so that they know who you are and will be willing to speak with you in the future, if necessary.
Finally, use this experience to begin planning for your own senior years.
Thanks, Helene. These are issues that most families will face at some point. I hope that your insights will be reassuring to individuals who are planning for, or currently experiencing, the changes that accompany the aging of a loved one.
Following are observations by Amy C. O’Hara, Esq., a Littman Krooks attorney who focuses on estate planning, estate administration, trust administration, guardianships, special needs planning, and elder law.
Uncertainty concerning the federal estate tax continues. Allowed to lapse entirely at the end of 2009, it’s scheduled to jump to 55 percent on January 1, 2011, on estates valued at $1 million or more. This means that the number of estates subject to federal tax will increase by a factor of eight from 2009, when the exemption was $3.5 million.
No one envisioned this scenario. In 2001, after dropping the estate tax from 55 percent to 45 percent, a contentious Congress gave itself an eight-year window to work through its differences. It was thought that the “threat” of a 2010 expiration would spur compromise. But not so. Since then, the exemption has steadily grown from $675,000 to $3.5 million per individual.
All year, observers have expected that some middle ground, and possibly retroactive measures, would be legislated. All year, individuals and their estate planners have struggled with an ambiguous tax environment. Election years, though, are unpopular times for tax-related action. Regardless of one’s vote, a public official is likely to anger some constituent, and Congress has recessed without taking decisive action.
The question is whether anything will change when Congress convenes following the November elections. Assuming that our representatives and senators take action, will the new rate be 35, 45, or 55 percent? What will be the exemption amount?
Many observers think that no action at all will be taken this year because the congressional agenda is packed and there are so few working days left in 2010. In the meantime, the best that can be done is to factor flexibility into your estate plan while you wait.
Serving as someone’s executor, or personal representative, is a big job that comes with many responsibilities. While being chosen is often considered an honor, there is a lot of work involved, and an executor must be organized, pay strong attention to detail, and capable of meeting deadlines. You may be tempted to name someone in your family as your executor in order to avoid hurt feelings, but your family and heirs will not be well served if you choose your executor based on anything other than ability.
You should consider the following:
Choose someone who is trustworthy. Your executor will have knowledge of all your finances. He will be reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to your named heirs. That’s not the kind of information you want spread around, so you’ll need to choose a person who will be discreet.
Choose someone who is organized. The person you select will be responsible for a large number of detailed tasks. He will need to make lists of assets, meet court deadlines, and make timely distributions for estate taxes. Not completing these actions in a timely and organized manner can draw out the entire process, costing your heirs time and money.
Choose someone who is financially knowledgeable.
If you cannot think of a person you can entrust with all of these responsibilities, you should not lose faith. There are other options for you to consider, such as choosing a bank or a financial institution as your executor. Also, you have the option of asking your estate planning attorney to partner with the person you choose as executor to help with the difficult tasks and ensure a smooth probate for all involved.
When it comes to living arrangements, senior citizens have many options. They can choose independent retirement communities, assisted independent communities, at-home assisted living, at-home care, live-in nursing homes, and more. While having so many choices to consider can be beneficial, it can also make the search more confusing.
Identifying the right living arrangement for your loved one can be much easier if you know ahead of time the things to look for and the important questions to ask. Here are a number of considerations when evaluating a living arrangement:
Make sure the facility you are evaluating is licensed.
Ensure that the facility is financially stable.
Get referrals from people who have previously conducted such a search.
Visit the facility to assess the accommodations and the staff.
Ask for the opinions of current residents.
Consider whether or not it can meet your loved one’s current and future needs.
Ask about payment options (including Medicaid).
Asking these questions will help you find the right living arrangement for your loved one. It is, however, important for you to discuss your choice with your elder law attorney, since nursing home and assisted living contracts can contain unwelcome surprises.
Many parents spend a lot of time, energy, and money preparing estate plans intended to provide security for their children and grandchildren. While it’s common for parents to conduct numerous discussions with advisors in order to create a plan that will transfer their estate as smoothly as possible, they often neglect to hold similar conversations with their children.
When planning to pass your estate on to your heirs, it is important to consider how they might handle the new responsibility of receiving an inheritance. Parents may believe that the inherited estate will be used responsibly to help their children and grandchildren pay for furthering their education; to make it possible for one parent to stay home with young children; to ensure a secure retirement, or to be put to other responsible, sensible uses. The assumption that children share the financial values of their parents, however, may not be valid.
While death and money are often uncomfortable subjects for discussion between parents and children, it is important to bring these topics up. Avoiding these conversations can jeopardize even carefully crafted estate plans To be certain that your children are prepared, you may want to include them, if they old enough, in the process of planning your estate. The more they know about what to expect, the more prepared they will be.
While some people think that creating an estate plan on your own is a simple task, this couldn’t be further from the truth. In fact, there is a lot of legal knowledge, personalization, and attention to detail that goes into an estate plan. Even if you are young and think you have negligible assets, you should consult a professional. There are simply too many things that can be left out or misunderstood, and sometimes things just go wrong. Even a small mistake in an estate plan can lead to big problems, even invalidating your entire plan.
There are several important issues that are often overlooked by those preparing an estate plan on their own:
Although a will does not have to be notarized in some states, most states do require you to sign your will in the presence of witnesses. Failing to do this can result in your estate plan being invalidated.
It is important that you choose a backup guardian for your minor children in case your first choice is unwilling or unable to care for them. Failing to do so can cause great problems for your family after your death.
Although there is no estate tax in 2010, many heirs will actually end up paying more because of capital gains taxes.
Upon your death, your will becomes a public document, and this could leave your heirs open to criticism, claims, and contest suits by predators or unhappy relatives.
Any of these issues could present problems for those completing estate plans on their own. An estate planning attorney, however, could easily anticipate and address these issues. You should contact an estate planning attorney to ensure that your estate plan is current and complies with all state and federal regulations.
It is sometimes difficult for us to know when one of our loved ones is unable to care for himself. Even if the signs are present, it is often hard to admit that this is happening. The signs often develop gradually, and they aren’t always easy to pick up on if you see your loved one regularly. Sometimes, no one notices until a son or daughter who has moved away comes home for a visit and recognizes a decline in a parent’s ability to perform basic tasks.
If you suspect that your loved one may need care, these are some signs that you can look out for:
Inability to prepare own meals
Frequent falls
Inability to keep up with basic hygiene such as bathing or brushing teeth
Depression
Sudden isolation
Once you have noticed these signs you will need to figure out what level of care is needed and how you will pay for these services. Your loved one may need a small amount of help with housekeeping and other daily activities, or more comprehensive care may be necessary.
Although it can be difficult discovering that someone close to you needs care, it is not a process you have to go through alone. An elder law attorney can give you advice about the type of facility that would best serve your loved one’s needs or whether he can be cared for at home.
