BBKCC partner attorney Ron Cross is pictured above as he is presented a plaque from Ms. Dixie Robinson, president of the Richmond Community Schools Board of School Trustees. The surprise recognition commemorated Ron’s more than forty (40) consecutive years of service as chief legal counsel to Richmond Community Schools. Ron began his representation of RCS in 1977 while then affiliated with the former Richmond law firm of Reller, Mendenhall, Kleinknecht & Milligan. Over the next forty years Ron estimates that he has attended more than 1,500 school board meetings and worked with more than 12 different superintendents. Ron’s representation includes almost all areas of law that impact public education from labor and employment law to aspects of regulatory compliance. For more than 12 years Ron served as the chief negotiator on the RCS collective bargaining team that negotiated collective bargaining agreements with the RCS teachers’ association. Ron continues to represent RCS and other school corporations in the Wayne County area. The attorneys at BBKCC are chief counsel for several school corporations in the greater Richmond/Wayne County area. Please contact them if you have any legal needs related to public education.
City of Richmond to start 2017 with new attorney, Andrew J. Sickmann.
Rachel E. Sheeley , firstname.lastname@example.org 5:08 a.m. EST December 11, 2016
Walt Chidester – After 13 years as the City of Richmond’s attorney, Walter “Walt” Chidester is stepping down from the role.
His successor, hired at the Dec. 8 at the Board of Works and Public Safety meeting, will be Andrew J. “A.J.” Sickmann. Sickmann will begin his term as city attorney on Jan. 1.
Chidester and Sickmann are both members of the Richmond law firm, Boston Bever Klinge Cross & Chidester.
“Walt is sort of an icon figure of city government,” said Mayor Dave Snow. “We have been preparing for this for a while.”
Chidester will remain associated with the city, working with the Sanitary District. He also will continue his private practice. However, Chidester and his wife are planning to spend more time with their grandchildren and to do more traveling.
Chidester became city attorney under Democrat Mayor Sally Hutton and served with her during her three terms. When Hutton died in April, Chidester was one of those who eulogized her.
Snow, a Democrat who succeeded Hutton, asked Chidester to remain with the city one more year to ease the transition.
“My job has been made easier over the years by being surrounded by good people,” Chidester told the board of works.
Chidester expects the city to be well served by Sickmann.
“I’m exited, humbled, to serve the city I care so much about,” Sickmann said. “I will do my absolute level best.”
“I think A.J. is going to do a fantastic job,” Snow said.
Sickman is being hired by the city for a salary not to exceed $43,636, to be paid in monthly installments of $3,636.
A 2004 Richmond High School graduate, Sickmann graduated in 2008 from Ball State University and in 2011 from Valparaiso University School of Law. While attending law school, Sickmann worked as a summer associate for Boston Bever Klinge Cross & Chidester, which he joined after passing the bar exam.
Sickmann’s practice primarily includes family, municipal, commercial and criminal law. He has served as attorney for the towns of Milton and Spring Grove, and also as assistant attorney for Wayne County government.
He is licensed to practice law in Indiana, and in the U.S. District Court in both the Southern and Northern Districts of Indiana.
Sickmann is the president of the Wayne County Historical Museum board and vice president of the Whitewater Valley Pro Bono Commission. In 2014, Sickmann was honored with the annual Pro Bono Award for handling dozens of pro bono cases throughout the year. He also serves on the board of Communities in Schools for Wayne County.
Chidester is a graduate of Heidelberg College in Tiffin, Ohio, and received his law degree from Drake University in Des Moines, Iowa. He began his law practice with Legal Services Organization of Indiana Inc. and was the managing attorney of the Whitewater Valley Office of Legal Services. He joined the law firm of Reller, Mendenhall, Kleinknecht & Milligan in 1981 and remained there until the formation of the law firm of Boston Bever Klinge Cross & Chidester in 1998.
In addition to serving as the city attorney since 2004, Chidester was attorney for the Wayne County Welfare Department for 10 years and served as a deputy prosecuting attorney in the Wayne County Prosecutor’s Office.
As I write this article, there is almost a foot of snow on the ground. The groundhog has seen his shadow. Cabin Fever is at epidemic levels in the area and we are all counting the days until spring. This is hardly the season to think about home remodeling. However, one good thing about Cabin Fever is that it forces all of us to take a good close look at the cabin. If significant home improvements are in your immediate plans, then this article is intended for you! Perhaps you just plan a spring makeover of a room or two in your home. Perhaps you are at a “transition point” in your life. The children are gone leaving you with the proverbial “empty nest” and the on-going burdens of nest maintenance. Maybe it’s time to sell the place, but before you do, you know that some major work is needed. Whatever your situation or motives, if you are considering significant home improvements, the issues raised in this article should help you avoid becoming a victim of the ever increasing phenomenon known as “Home Improvement Fraud”.
We have all heard that “an ounce of prevention is better than a pound of cure” and that is certainly true in the context of planning and contracting for home improvements. A few simple suggestions, if followed at the early stages of a project, can save considerable heartache (and dollars) in the end. Consider the following points:
1. Don’t overdo it! If your goal is to realize the most bang for your buck by improving your present home before selling it in the near term, then it is imperative that your planned improvements make economic sense. The addition of a new bath may be very cost-effective whereas other improvements may not yield a short-term return on the investment. It is always a good idea to check with a real estate professional (a sales agent, broker or appraiser) during the planning stages of a project to make sure that your intended improvements will make both dollars and sense.
2. Do your homework! Once you have identified the scope of your project, then the most important part is the selection of a contractor to do the work. Here is where a little time invested on your part can save a lot of later hand wringing and gnashing of teeth. Get bids from several contractors, but don’t necessarily go with the lowest bidder before checking the references on that company or person – and don’t just accept the references that a contractor freely offers. Few contractors would give the name of a dissatisfied customer. Ask about recent work activity. Where was the company yesterday? Last week? Last month? Get the names of the owners of those projects and call them! Ask if they are satisfied with the job. Are costs estimates followed? Are timelines met?
Does the contractor devote on-going attention to the job? A slow job or one that comes in over estimated costs can be the result of an inexperienced contractor, or – worse yet – one that is over-extended or over-committed with other work. Don’t be afraid of hurting someone’s feelings. Most reputable building contractors in our area are true artisans who are proud of their work. They will gladly share it with you.
3. Know your rights! This point is critical. If you are generally knowledgeable of what rights the law affords you as a home improvement consumer, you will be in a better position to enforce those rights and avoid becoming a victim of home improvement fraud. Unfortunately, when you discover your rights after they have been violated, then you may find yourself dealing with the proverbial “pound of cure” that can be both expensive and ineffectual in producing positive results for you.
Indiana’s law on the subject of home improvements is generally divided into two distinct areas – (i) civil law and (ii) criminal law. Each area has a potentially different impact on you, the consumer.
As the name implies, the criminal statutes define certain offenses that have been criminalized in the home improvement arena. Those offenses are the typical ones that we normally associate with home improvement fraud. They include gross over-charging (a contract price that is at least four times the fair market value of the work that is done), misrepresentation of either the provisions of the home improvement contract or of the existing or pre-existing conditions of the property involved, false promises of performance or product performance that the home improvement supplier knows are false (such as misrepresenting the heat retention factor of insulation or quoting an unreasonably short “payback” projection for anticipated savings in utility expenses, etc.), or other acts that one would normally think of as fraudulent (such as using a false or fictitious name that is not duly registered to conceal the true identity of the supplier). The offenses range from Class A misdemeanors to Class C felonies, depending upon, among other things, the dollar value of the fraudulent contract. Since seniors have been particularly victimized by such scams, the offenses (and hence the potential punishments) are greater if the victim is sixty years of age or older.
As with any criminal prosecution, the initiating party must be the state of Indiana. Frequently, as part of the “plea bargaining” process, the prosecutor will attempt to obtain financial restitution for the defendant’s victims, but there is no guarantee that any perpetrator of such fraudulent schemes will have the financial resources to make such restitution. My own experience in representing clients in matters such as these is that the prosecutors are sometimes reluctant to initiate actions in the first instance because of the existence of the civil remedies that will be discussed below.
The second area of protection that has been legislatively afforded consumers is in the civil arena. Indiana has adopted a section of its Deceptive Practices Act that applies to home improvement contracts. A few of the act’s major provisions are:
- It applies to all consumers who own or lease residential property.
- It applies to any home improvement contract having a price greater than $150.
- It requires that the supplier of the home improvement contract provide the consumer with a fully completed written agreement, BEFORE signing by the consumer that includes, among other things, (i) the name of the improvement supplier, its address and phone number and the names of any agents of the supplier to whom inquiries can be directed, (ii) a detailed description of the work to be done and, if specifications are not included as a part of the contract, a statement that the specifications for the work will be provided to the consumer before commencing the work, (iii) the approximate starting and completion dates for the project, (iv) a statement of any contingencies that would materially change the approximate completion date, (v) and the home improvement contract price. Finally, the contract must be in a form that is easily read and understood by the consumer.
A completely executed copy of the contract must be given to the consumer immediately after the consumer signs the document. Failure of the supplier to comply with those procedural requirements constitutes a violation of the act. Additionally, other parts of the Deceptive Practices Act define violations to include exceeding a cost estimate for the project by more than ten percent without first having obtained the approval of the consumer to the additional cost (and provided that the total cost for materials and services exceeded $750.00).
A person who has been the victim of a deceptive practice may recover the actual damages that were suffered plus reasonable attorneys fees. In this regard it is important to understand that, as the client, you will still be expected to pay your attorney from your own funds. However, any judgment for attorneys fees that the court might enter and that might ultimately be collected would go to reimburse you for those attorneys fees. Finally, if the victim is sixty-five years of age, or older, a court may order the recovery of three times the actual damages suffered in the case of a deceptive practice.
While all of that may sound comforting, the reality is that litigation in the area of home improvement contract law can be quite expensive, time consuming and very frustrating. The recommended “ounce of prevention” will always be preferable to the pounds of legal cure that are afforded under these laws. However, it is important to understand and exercise your rights should, despite your best efforts, you become a victim of home improvement fraud. After all, it is your castle!
The opinions and conclusions expressed in this article are those of the author and are not intended to constitute legal advice as to any particular person or situation. The laws cited in this article contain both substantive and procedural nuances that require the submission of any particular case to competent legal counsel of your choosing.
by Walter S. Chidester
Premarital agreements are often used by parties with children by a former marriage whose interests they wish to protect upon the termination of a subsequent marriage. Premarital agreements are being used more frequently in today’s society than in the past. People live longer; people remarry more often; people have more money to protect; and estate planning is more common than it was in the past.
But some people are torn between love and a commitment to a new spouse while wanting to make sure their children or their heirs are protected with what property they bring into the marriage. Having a properly executed premarital agreement may be just as essential to a strong marriage as your love for your new husband or wife. A basic understanding of premarital agreements, coupled with simple and basic planning, can avoid potential problems to either you or your heirs.
What is a Premarital Agreement? A premarital agreement is a legal contract by which a husband and wife, prior to their marriage, agree as to their property ownership both during their marriage and upon the marriage’s termination by death, dissolution or legal separation.
A premarital agreement (what we used to commonly know as a prenuptial agreement) is an agreement between prospective spouses that is executed in contemplation of marriage and becomes effective upon marriage. It must be in writing and must be signed by both parties.
In a premarital agreement, a wife and husband may contract with each other concerning the rights and obligations of each in any property of either the wife or husband or both. A wife and husband may contract for their rights and obligations whenever the property is acquired or wherever the property is located.
Property in a premarital agreement, by Indiana law, means “an interest, present or future, legal or equitable, vested or contingent, in real and personal property, including income and earnings.” By way of example, this includes real estate (including your residence and rental properties), savings accounts, money market accounts, certificates of deposits, mutual funds, stocks, and bonds.
In a premarital agreement, a husband and wife have flexibility in choosing ways of handling their assets. A husband and wife can agree to keep separate during the marriage all or some of the assets each owned prior to the marriage. They can also agree to keep separate assets acquired prior to their marriage but pool together assets and income accumulated during their marriage. A husband and wife can pool together some, but not all, of their assets each owned prior to the marriage. A husband and wife can agree on whatever method of handling assets meets their joint approval.
Why do you need a premarital agreement? Quite simply, to protect your property for your children or your heirs. Marriages, especially second marriages, may have problems when they end by death or divorce. If you have properly planned for, and contracted for, the handling of your property, your heirs will get what you have planned for them to receive.
Failure to properly plan ahead, however, may invite disaster. When a person with children remarries a spouse who also has children, sharing emotions is sometimes easier than sharing money with a new spouse. If a husband and wife have not discussed the handling of their property prior to their marriage, this may later result in a conflict between the spouses or between a surviving spouse and the deceased spouse’s children. Many people who remarry want to make a commitment to their second husband or wife, but they also want to make sure that their children are protected as well.
Basic and simple planning can avoid a lot of headaches during your lifetime. It can also avoid headaches and heartaches for your children after you are gone. The need to plan, and to consult, applies to nearly all of us, not just the well to do.
Who Needs a Premarital Agreement? While any individual may wish to consult with an attorney prior to marriage, anyone with children who marries or remarries should consult with an attorney experienced in estate planning and family law in order to protect assets for his or her heirs, usually the person’s children.
The amount of money you have does not matter. What is important is protecting your assets for your children or for other beneficiaries to whom you wish to leave your estate.
When should you have a premarital agreement? A premarital agreement must be drawn up and signed prior to marriage. It is best to consult with an attorney well in advance of any wedding date so that you can discuss, in an objective manner, precisely how you wish to handle your assets in your marriage. It is best to plan with your head, not your heart. Rushing to an attorney’s office a few days before the wedding is an emotional process, not an objective one.
A premarital agreement is drawn up to preserve the status quo as to property interests existing before marriage. What happens if you sign a premarital agreement after you marry instead of before? Post-marital agreements do not protect your assets in the same manner that a premarital agreement does. An agreement signed after you marry may not prevent your spouse from claiming a share of your estate if you die first or from claiming part of your property in the case of a divorce. By way of example, say you owned real estate in your name only with a value of $100,000 and you failed to execute a premarital agreement before your marriage. Even though you and your spouse signed an agreement after you married for handling your property, at your death your spouse could be entitled to a life estate in one-third of the value of the real estate. A premarital agreement would have the entire $100,000 go to your children.
Where Should the Premarital Agreement be signed? Premarital agreements should be signed in the office of a lawyer experienced with premarital agreements and who is qualified to advise and discuss with you estate planning issues and family law issues for your premarital agreement. Each spouse should consult with his or her own lawyer. A lawyer cannot advise both a husband and a wife on the planning of a premarital agreement.
Can a Premarital Agreement be amended or revoked? After marriage, a premarital agreement may be revoked or amended only by a written agreement signed by both the husband and the wife.
Will a Court Enforce All Premarital Agreements? A Court will not enforce a premarital contract if a person against whom enforcement is sought proves that the party did not execute the agreement voluntarily or the agreement was unconscionable when the agreement was executed.
A Court may also require a party to provide spousal maintenance to the extent necessary to avoid extreme hardship if a premarital agreement modifies or eliminates spousal maintenance and that modification or elimination causes extreme hardship not reasonably foreseen when the agreement was signed.
What about Medicaid? Some people are under the mistaken impression that a premarital agreement will protect a spouse’s property and assets from Medicaid in the event the other spouse is forced to go on Medicaid. Regardless of whether or not a husband and wife have a premarital agreement, Medicaid will count the resources, property and assets of both husband and wife when making a financial determination for Medicaid eligibility for one spouse. For a spouse who needs Medicaid, a premarital agreement cannot and does not protect a spouse not needing Medicaid from having Medicaid count the property and assets of both spouses.
What if there is no Premarital Agreement? If you do not have a premarital agreement and your marriage ends in a divorce, then your spouse may be entitled to some of the property or assets you brought into the marriage, as well as an increase in the value of the property or assets you brought into a marriage. By way of example, if you own your home in your name only prior to the marriage, and it is worth $80,000 when you married, and your marriage ends in divorce five years later, then your spouse may be entitled to one-half of the increase in the value of your house during the time of the marriage. If your home increases in value to $120,000 at the time of the divorce, then your spouse may get $20,000.00, or one-half of the $40,000 increase. A properly executed premarital agreement could prevent such an occurrence.
Without a premarital agreement, if you die and have children from a prior marriage, your second spouse could receive one-third of your personal property and a life estate in one-third of your real estate, as well as a $15,000.00 surviving spouse allowance. Again, a properly executed premarital agreement could prevent such an occurrence.
1. Plan your premarital agreement
2. Meet with an attorney experienced in premarital agreements
3. Sign a premarital agreement before you marry
I am often confronted with a client who has created a successful business and asks, “How can I keep this in my family after my retirement or death”? Needless to say, there are no easy answers and no guarantees of success, but progress can begin by at least asking the question. The biggest mistake I see – though often understandable – is simply being too busy with “work” to think about what happens in the future.
Generally, dad and/or mom have worked their entire lives to make the business successful and gradually one or more of the children have come on board to assist with services, and hopefully, ultimately management. Much depends upon the age and interest (not to mention talent) of the children, but if at least one child has become involved, consideration should be given to business succession within the family.
Before looking into how the business might be transferred to a family member either at death or retirement, care should first be given to how the children are being involved at present. The successful business owner with a child involved needs to ask the following questions:
1. Is my child truly interested in the long run to be involved in the business? Unfortunately, I have seen too many situations where dad or mom so dearly want the child to be involved, but the interest is not there. If this occurs, accept the fact and consider the alternatives. Is there another good non-family manager who is qualified to take over and who has the finances, at least over time, to purchase the business? The sale of a successful business is better for a family than seeing it diminished with a non-interested second generation owner.
2. Is my child appropriately involved at the present time? While experience is certainly first needed, some business owners wait too long to add management responsibilities to their children’s duties. If your business is a corporation, consider adding a child to the Board of Directors or as an officer. If the business is a partnership, consider making the child a partner, even with a minority interest, prior to leaving your own involvement. If you are a sole proprietor, consider creating an entity which would allow partial decision-making with the children. (Needless to say, the choice of entity has other far reaching ramifications, which can be discussed later.) Put simply, just make sure the children learn the management side of the business while you are around to help do the teaching.
3. Can financial ownership be currently transferred without relinquishing control? This question may be asked more than any other question by my clients. A parent may be ready to transfer ownership of the company to a child – either to assist the child financially or for estate planning purposes – but is not ready to relinquish control of the business to the child. This can be done and can be done in a variety of ways, depending upon the circumstances. Transfers of a minority interest within the business, either of stock in a corporation or a minority interest in a partnership or LLC, can be considered. The transfer can be through either compensation or through gifting, and various tax factors need to be considered regarding this choice.
There also exists more specialized methods for even transferring majority ownership interest, while retaining control. These include creating two classes of stock (voting and non-voting) in a corporation; creating a limited family partnership with the parent being the “general” partner and the children “limited” partners for ownership and distributions. Each of these have separate pros and cons, and separate articles could be written about each. Just remember that options do exist. Regarding the ultimate transfer of a business at retirement or death, more questions need to be asked by the successful business owner. These include the following:
1. Do I want my involved child to “pay” for the future ownership of the company? This may sound strange, with most clients trying to determine how to “give away” a business to a family member during life or death, with limited tax consequences, but a number of clients believe it is better for a child to pay for this opportunity. This may be especially true if there are other non-involved children, or more importantly, if mom and dad need this payment to live on financially after the business is transferred. There are, of course, other methods to keep the parents compensated, including “consulting fees”; continued minority interest ownership until death; pension plans; etc. However, “to pay” or “not to pay” is a legitimate first question. The result can also be for less than fair market value legally, although there may also be tax consequences from this choice.
2. Can I make a trust or will transfer dependent upon a child’s current involvement in the company? I have recently written a number of wills and trusts which make the timing of a business transfer dependent upon the age or experience of a child with a company. The interest until such time can be held by an independent trustee, a non-family manager of the business, or even other family members. At such time that a certain age or experience level is reached, the child could then be qualified to receive his or her transfer in the business. Consideration might also be given in such a situation to children who are not currently involved, but may later in their older years wish to become involved in the business.
3. If I have both involved and non-involved children, do I . . .
a. Give equal ownership to all children regardless of their involvement? (This may sound good, but I have unfortunately seen many situations where resentment can occur and family businesses flounder if a local involved child with the business is treated in similar fashion to an out-of-town non-involved child with other interests. While this may be prompted by good intentions, I am afraid more times than not this is not a good result.)
b. If I give the business only to the children involved, do I offset this bequest with other property of equal value to my other non-involved children, or do I “reward” the involved children with this business gift before I divide other assets equally? (The middle ground is also possible, with a required “payment” or “debit” to the involved child for less than fair market value regarding the business gift.)
c. Do I take into account that the non-involved child may later wish to become involved? (There are some specialized procedures which can be utilized here to make future bequests possible if later involvement occurs.)
I realize the length of this article does not allow specialized discussion of all possibilities to accomplish successful business succession planning; however, my goal has been to simply raise the appropriate questions and provide some ideas for decisions as you consider the possible future of your family owned business.
The information and opinions expressed in this article are for information only and are not to be construed as legal advice to any particular person or situation. Any specific factual situation should be reviewed by competent legal counsel of your choosing and the author hereby disclaims any responsibility or liability which might be asserted arising from reliance upon the enclosed information.
by Douglas B. Oler
When first approached about writing an article on estate planning, several areas immediately came to mind, such as wills, revocable living trusts, jointly held property, saving probate expenses and saving death taxes.
I was then given a list of articles others had already written for Senior Life. It became obvious that most of the estate planning areas I considered important have already been covered.
As a result, I thought it would be helpful if I gave some tips on how to save time and money before the call or appointment with the attorney. Before you see the attorney and discuss wills, trusts, probate, death taxes, there are things you can do to make the planning process quicker, smoother and less costly.
The first steps in the estate planning process are the following:
1. Assemble all existing documents
2. Prepare an inventory of assets
3. Assemble family information/history
4. Identify family objectives
Let me discuss each of these areas separately.
Assembling all existing documents means taking to the attorney copies of existing wills, trusts, living wills, power of appointments, health care appointments, premarital agreements and deeds to real estate owned. The attorney needs these documents to review the existing plan. It may be that no changes need to be made. On the other hand due to changes in the law, changes in the assets or changes in the family situation, it may be that an entirely new plan and documents need to be implemented. This decision cannot be made effectively until the attorney reviews the existing documents and estate plan.
The next step would be to prepare an inventory of assets. This means listing all property at current market values including retirement plans and life insurance. Many attorneys will give you a questionnaire to complete before the conference. The form will ask you to list real estate, bank accounts, vehicles, stocks, bonds, annuities, retirement plans and life insurance. When it comes to listing personal property, do not list every fork and spoon but do include antiques, heirlooms, and jewelry that have special value.
Not only should you list the assets but it is important to know in general terms the market value of each asset. If you have recently applied for a loan the completed bank financial statement would be generally sufficient. If you’ve not done a financial statement then you may have to estimate the value of the real estate, call the bank to get current bank balances and get current values on the stocks and bonds.
When preparing the list of assets, be mindful of, and make the attorney aware of, any impending inheritances of consequence. Obviously, inheriting substantial amounts of assets could change the estate plan.
It is also important to not only list the assets but determine how these assets are held. For example, the attorney needs to know whether the assets are in husband’s name, wife’s name or joint names. Many clients fail to think about this matter. Many times a list is prepared with no thought as to how the assets are owned. The following outline is frequently used and very helpful to the attorney to have in advance of the planning conference:
Wills have no effect on jointly held assets. Thus, when writing a will it is crucial to know what assets are in joint names and what assets are in sole names. A great will and plan can be written, but if all assets are in joint names the will may be irrelevant.
The next information needed by the attorney is family information. Names, ages, addresses of family members are all important. This may appear easy but it can become complicated. This is particularly true if a family member has a disability. Thus, family history and medical conditions are needed. In addition, if family members are minors, then special conditions may have to be provided. So it is again crucial for the attorney to have family names, ages and capacity to complete an effective plan.
The last step is to try and identify estate planning objectives. This may be difficult before the meeting with the attorney. However, it can speed up the process if there is some forethought given to what the family objectives are. In order to trigger the reflection, the following questions are usually asked:
- Now that you have listed your assets, who should inherit these assets?
- Should all the assets go to the spouse?
- Should children/grandchildren share in the inheritance?
- Are there any specific bequests that you want to go to certain individuals or charities?
- Have you provided for some children during your lifetime and want to equalize the inheritance at you death?
- Should closely held business stock pass only to those children who are active in the business?
- Should you compensate the others with assets of comparable value?
- After determining who gets the assets when should the beneficiaries get the assets? In order to answer this question you need to focus on the age and maturity of the beneficiaries, the size of the estate and the needs of the beneficiaries and the tax implications.
- Do you want to tie up any of the assets in trust with distribution to be made over a period of years?
In summary, if you assemble all existing documents, prepare an inventory of assets, list family information and identify family objectives in advance of the appointment with the attorney, you will save yourself time and money in the estate planning process. Now go get started.
by Richard E. Boston
For any number of people, estate planning consists solely of executing a will and making sure that they have adequate life insurance to provide for their burial. Granted, these are important and critical steps in anyone’s planning. But with a will and life insurance, you have dealt only with what happens at the time of your death.
What plans have you made to provide for those unexpected events that occur during one’s life, particularly as health issues become more of a probability than just a possibility? Instead of thinking only about providing for your spouse and family at your death, you should also consider doing what you can, while you can, to ease the emotional and financial burdens of those you care most about should your health fail, leaving you incompetent to execute legal documents.
In counseling new clients and when reviewing and updating the estate plans of existing clients, I strongly encourage the use of four documents as an essential beginning point for any estate plan, irregardless of the size of the estate. Those documents consist of a will, a durable power of attorney, a health care representative appointment, and a living will. The last three provide for the client’s needs while living.
DURABLE POWER OF ATTORNEY – this document provides for the ongoing conduct of the client’s financial and business affairs should he or she either not be able or not be available to carry out these functions. Most people name their spouse as the person to act on their behalf when they cannot. If the spouse should no longer be available, a successor is named in the document. Generally, this is one or more family members or a close friend. The power of attorney can either be made effective immediately upon its execution or it can be drafted so that it becomes effective only upon the client’s physician’s certifying that the patient is incompetent to manage his or her financial affairs.
This document is customarily very broad in the powers that it bestows on the person appointed to act, but such powers can be limited to a person’s specific needs. Some examples of what a power of attorney can provide for are the following: banking functions, including check writing; the execution of deeds, notes, mortgages and other documents dealing with real estate; the filing of income tax returns; estate planning functions; the operation of a business; or the handling of all types of insurance matters.
You may ask why this is important. In many instances it prevents the spouse or children from having to go to court to have a person declared incapacitated and to then have a guardian appointed to handle that person’s business and financial affairs as well as their day-to-day care. When the court becomes involved, an inventory of assets must be filed. This is a matter of public record. The family loses its financial privacy. A formal accounting must be filed with the court at least every two years by the guardian. This means accounting for all income and all monies spent. Too, any extraordinary expenditures may require court approval. With proper planning, all of this can usually be avoided, leaving such decisions to the family and not to the court’s discretion.
Another common scenario is where a house is owned jointly between a husband and wife. One spouse becomes incapacitated and at some point the house needs to be sold, whether that be because it’s too large, or money is needed for long-term nursing care, or for any number of reasons. The sale and transfer would require the signature of both husband and wife. With a power of attorney, this problem would be solved. Without a power of attorney, a court-appointed guardian would most likely be necessary in order to have someone with the legal right to sign the incapacitated spouse’s name to the deed.
HEALTH CARE REPRESENT-ATIVE APPOINTMENT – This document functions much like a power of attorney, but relates to a person’s health care needs rather than to business and financial affairs. Again, the spouse is usually named as the first choice with a family member or close friend being named as a successor.
The named health care representative is authorized to make health care decisions for you when you cannot do so. This power may need to be exercised only for a short period. Once you are again able to make your own health care decisions, you do so.
With this document, the attending medical personnel have someone with the legal authority that can make critical health care decisions as necessary. This could be as a result of an accident, or a general health-related problem such as an incapacitating stroke.
LIVING WILL – Most clients have strong feelings as to whether or not they wish to be kept alive if they have no chance of recovering and living a quality life. Should this circumstance arise, it is important that you leave a directive as to whether or not you wish to be placed on, or kept on, a life support system and if you are taken off of life support, whether or not you wish to continue to receive nutrition and hydration.
A living will provides a written statement of your wishes in this regard. This does two things. It provides the medical personnel with information they need. More importantly, it relieves your spouse or family from being left with the responsibility of trying to decide what you might want in this situation, yet being reluctant to make a decision that will end your life. This is an onerous decision to leave to your spouse and family. However, this is a decision that you can make by using a living will and thereby avoid placing those you care most about through this trauma and possibly having a decision made that you yourself would never have made.
Begin your estate plan with an appropriate will that carries out your wishes while meeting the needs of your survivors. But do not stop there. Make plans for your living as well as for your dying by incorporating the above planning tools into your basic estate plan. Should the need ever arise for their use, I can assure you that your family members’ lives will have been made abundantly easier as a result of your forethought.