Nugen Law; specializing in estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.

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>> Good evening.

>> I'm Sandy Thomson, the host of the show which is called LIFE Ahead.

Welcome here to PBS for Wayne and welcome to our show LIFE Ahead.

>> If you've never watched it before, let me show you just a little bit about it.

It's a half hour talk show and we have live callers and we invite you to call in with your questions each Wednesday night at seven 30.

We have a new topic, a new guess or you just never know what you're going to stumble across.

But we try to give you educational and information that will help you in your choices for your LIFE Ahead.

>> That's the title of the show.

OK, get ready to call us here.

We have an attorney with us tonight.

So legal is the theme here this evening and if you have watched this regularly, you know my guest he's been off on a lot especially in this last six months or so.

>> This is Brian Nugent.

Brian, welcome again.

Thank you, Sandy .

Brian, by the way, this as an elder law attorney but I mean law in general we can talk about the kind of well give it a try if they call it and ask I'll do my best.

>> OK. All well, we're going to talk about some of the things that you look for in elder law in situations that you might have.

>> Brian can give you some expert advice if you want to give us a call, Brian, and tell people do ring the phone here.

Let me ask you some questions.

Sure.

What are some of the most challenging legal situations that you deal with as an attorney helping people with elder law issues?

>> I think in regard to elder law, if there is a within the family, if there's a schism or the folks aren't all on the same page, it's it can be difficult to make sure that their estate plan is in place as they want it to be.

And to be fair to typically their children.

So for example, if a client has multiple children and maybe they've helped one child more than the others through the years for whatever reason the clients can debate about how is it that we continue treating our children fairly despite the fact that we've maybe helped one child along the way much more that can be challenging I would say also when we have situations where a guardianship is necessary, maybe someone has is incompetent or is it making poor decisions and so we need to go to court and establish a guardianship for them that sometimes can be heartbreaking and that we have to bring in a doctor.

The doctor would indicate that no, the person can no longer make decisions for themselves and again back to what I was saying earlier if there's a division in the family about who it is that would be most responsible and best in a situation to provide care for the individual that the guardianship is being establishe for that can create a lot of tension and drama in the family.

So those are some of the challenging situations that can be rewarding as well when you're solving some problems for the family members, for the clients.

I would say challenging situation like that when you're looking for equity or we're trying to provide care for someone that maybe doesn't want it or doesn't appreciate the fact that they really are in a situation where they need help, right.

>> Yeah.

And that I know can be the situation.

A lot of people and we've talked about this a lot here on on the had the trend now is that people want to stay in their homes as long as they can through whatever can be done for them in terms of medical care, house household things, financial whatever to help keep them in the home longer and often it takes a legal situation to make those things happen is often to the benefit of the person.

OK, let's talk about health care and housing.

If you would address those health care and housing.

>> Sure.

And what kind of situations or legal situations do you encounter?

Well, you mentioned earlier about people wanting to stay in their homes so we call that aging in place.

How is it that you can allow someone to successfully age in place?

I always tell clients and I'm sure that other elder law attorneys do as well if you're looking to age in place in your home, we want you to have some things there.

For example, we want to make sure that your bedroom is on the main floor.

It sounds very basic but your bedroom is on the main floor.

You have a bathroom on the main into and out of if we haveget- rolling showers or at the very least walk in showers, the situation where you're having to step over a bathtub to get to the shower is not a good situation if you're wanting to age in place.

So spend some money on remodeling that bathroom and making sure it's appropriate for you.

I've had situations where clients were in older homes and maybe their washer and dryer in the basement.

That doesn't work as we age.

We want the those those appliances to be on the first floor so that you have access to them also making sure that you have a good network around you to provide care for you as you age in place.

Have you have you put those documents in place or health care representative designation your Hepple waiver et cetera that if a decision needs to be made about your health care and you're unable to do that yourself, do you have those documents in place so somebody can successfully make decisions on your behalf?

Durable powers of attorney seems very basic but everybody should have the power of attorney.

This is indicating who it is that can sign checks for you make financial decisions on your behalf if you're unable under unable to do so or you couldn't get to the bank yourself, couldn't speak with them and so surround yourself with that village that's going to provide care for you as your age successfully in place also I think that it's important to make sure that as you age your your primary care physician maybe is used to working with folks that have geriatric issues so that your care it may and you'll want to be sure that you have someone that's able to work with you as you age and be able to identify issues and assist with physician.

>> Is that what you're talking about?

Your family physician, a primary care physician, somebody that would be used to working with geriatrics if you don't be shy actually to get a little bit of help in the home sometimes having attendant care in your home and when I say attendant care, I mean someone that's assisting with activities of daily living like bathing, dressing medication reminders assisting you to the restroom if need be maybe doing some laundry and cleaning you'll want to have that in place.

And and I found that people when they're reaching out for that help they feel like it's a sign of weakness and if I need that help, someone is going to feel like I can't remain in my home anymore.

I need to move out of my home ctually to the contrary, I relationship with an agency maybe that's providing care for you in your home, it will allow you to stay there longer and it isn't that you're getting somebody in the home Sunday through Monday or I should say Monday through Sunday seven days a week.

It could be that you start out having two hours on a Monday, two hours on a Thursday just to make sure the home is clean.

Linens are changed on the bed.

Your laundry is there maybe to make some meals so you have some decent food in the home and able to keep you there as long as you can.

So making sure the environment that you're in is appropriate for you is your age getting some of those basic legal documents in place so that if a situation arises where others need to make decisions for you or help you make those decisions, you've got that in place and then looking for care in the home.

>> So to make sure that you can age there as well successfully good at good points a good point.

>> And I'm going to mention you talked about getting your home ready for those elder years.

I was recently talking to a builder and said that it's really a trend now that people are are maybe trading or building a new home as they move into senior years for their forever home or retirement home.

>> And even if they're both healthy and everything's fine, they have that in mind and they are a friend of mine just recently did the built her home and she made sure that all the doorways like from the garage into the house and sidewalk into the door were level, you know, in case there was a wheelchair issue.

They made sure they went ahead and put bars up in the shower, didn't have the tub, didn't have to walk over that exactly.

>> Well, in the US ten thousand people a day turn age 65 and older.

>> Oh mazing 10000 a day.

>> Yeah.

It's the fastest growing population in the US and I encourage people if you want to age in place you're going to want to do those things that you were talking about with your friend that I was mentioning earlier.

>> Get those things in place now if you're waiting until the point that you need it, you're not going to have the energy, you're not going to be there and available to to make those decisions that you might be able to make a little bit earlier.

So I would encourage folks to make those decisions a little bit earlier as opposed to a little bit later, you know, clean out your closets and downsize if you can a single story home.

Fantastic.

That home that you raised your kids in May not be the best home to retire but it has the bedrooms upstairs.

>> Right.

You got it.

Whatever.

So I get that we've had a phone call this one coming in from Dottie and she said how can a family member protect their parents real estate assets?

And that goes into what you mentioned earlier in terms of asset protection as we age.

>> Right.

So great question, Daddy.

I really appreciate your calling in so oftentimes if we can plan in advance for when you may need more care as you're aging, your medical expenses may increase, your care expenses may increase.

Oftentimes we create trusts, asset protection trusts, those trusts can hold real estate can hold other investments, brokerage accounts, some liquid cash CDs, life insurance policies.

You can put anything into those types of trusts, those asset protection trusts if the assets are there for a period of five years or more and you need to provide or receive care in your home and you want to provide payment for that care and not using those resources that you put into that trust, you could look to other benefit programs like Medicaid or the Veterans Administration to be able to assist you in getting that Karen home in your home that you need while protecting your real estate daddy and any other assets that you may put in so that's a great question.

>> I appreciate that.

Yeah, and I think that's probably a question a lot of people are thinking about and wondering about real estate oftentimes folks there largest investment, right?

>> They bought it.

We were just talking before we went on the air buying real estate years ago and how it's ballooned in value over time and so that that home that you bought back in the fifties sixties and gosh, you paid pennies for it in comparison today's market and you're looking at it now and it's several hundred thousand dollars you never anticipated getting that growing that much but it has.

So how do we protect that?

p>> Oftentimes we use those trust those asset protection trusts.

It's a great tool and I think a lot of people not everybody but a lot of people have maybe a second home, a vacation home or right place up the lake or a cabin in the woods or farming.

>> We have a farm grandma, mom and dad's farm and it's been there for generation two generations.

It always breaks my heart when I hear that gosh, we sold mom's farm, we sold the lake house.

We sold this house because they went into a nursing home.

They needed that care.

So we thought we had to sell that in order to provide payment for it.

There are very many techniques to use in order to protect the lake house in order to protect the farm, to protect to protect your home in town.

So please reach out to an elder law attorney and ask about how is it that you do that?

It most definitely can be accomplished.

You do not have to sell the property.

It can be protected but the earlier the better.

>> It's never too late.

It's frankly it's never too late to protect assets.

There's always an option.

However, if we can get you in earlier and we can get those things put in place, it's going to benefit you and preserve those assets for your future generations.

>> Well, we have another phone call, Brian, and we always have a lot time when Brian Todd to make sure you get your phone number down right now it's at the bottom of the screen and we'll be here obviously until the end of the half hour.

Niall's phoned in and he said if two people have power of attorney, does it take both parties to probate the will?

>> I don't know the answer to you.

I hope you do.

So thank you again for calling in.

I appreciate that.

So you're talking about two different things actually.

You're talking about powers of attorney and you're talking about wills.

So a power of attorney would be used during your lifetime.

So during your lifetime you're appointing someone that can do whatever you can do in writing.

So signing your name, signing checks, buying selling real estate, negotiating contracts on your behalf.

Now that power of attorney could be limited saying you can only do this, you can only work with my checking account or you can only work with my real estate or you could only work with this brokerage account.

But typically we're seeing powers of attorney that are very broad in nature.

So the power of attorney actually doesn't relate to the will.

So the power of attorney would be during your lifetime the will would be after you pass away.

So within the will what you may be referring to is who is appointed as the executor, who's appointed as the personal representative and that instrument so there they're the person if you've appointed them in your will there are the persons that would take that will file it with the court open up an estate and go through the probate process.

So then so spreading the will record is the probate process opening an estate advertising in the newspaper so your executors, your personal representatives that are appointed in that will they're responsible for that.

>> Oftentimes clients are using the same person in a will to be the executor of the personal representative as they would be in the power of attorney as their attorney in fact.

But it doesn't have to be the same person.

So now as to your question, if-r of attorney, does it take both parties of probate the will no unrelated I will take that a step further in in the power of attorney it could be that you set it up so that you've got two agents to attorneys.

>> In fact you can set it up so that one person will have two power of attorney no one person could write a power of attorney and they're appointing two individuals to represent them as agents.

OK, so we can write those so that both of them have to sign everything and act in tandem or the either one could do it and in the will we can do the same in the will we can indicate that both people have to do don't indicate that either one other.

>> OK, all right.

Is this anything that a judge would order or or you make that decision yourself as you're doing your document so the judge so you would do that when you're preparing the documents and instance though in which the judge may become involved and say to people have to do this or only one person is serving if there's a division between those representatives in the estate and they're not getting along or the estate isn't moving forward, they really have they're at loggerheads in that instance it could be that we would file a petition the court and say Judge, I've got two personal representatives.

They cannot agree to get things accomplished and they're really they're really duking it out.

Would you please make a decision for us either on this issue or who is that should or shouldn't be serving as personal representative in that instance?

>> Got it.

OK, thank you so much for calling in now and James is just called in as well.

Another legal question coming up here.

>> James wants to know what happens to the assets of a single person.

Well, if you're a single person and you have a will or you have established a trust, we would look to that instrument.

We would look to the will.

We would look to the trust to determine what is it that you've said in that in writing in that written instrument where your money goes, where your assets are to be can be conveyed if you are a single person and you didn't prepare a will, you didn't prepare a trust, then we look to something called intestate succession and intestate succession is a series of codes in the Indiana Code Indiana, Ohio revised code wherever you may be and what state you're in and there will be a delineation of where the funds are to be distributed.

So if you have children for example and you don't have a will and you're single, we would look to that intestate succession code .

And if your parents this is Indiana's and test intestate succession code if you have parents your parents are actually entitled to some of your estate as are children.

You don't have parents then your children receive all of that.

>> So even if you're single and this is to clarify part of James the question you know, he's curious what happens to the assets of a single person if they have kids but they don't have a will and you've addressed part of that.

>> Yeah.

So if they have children and no will we look to the intestate succession statutes and they it it very clearly delineates who gets what what percentage but it doesn't always work as people would think.

We assume that if I'm married or anything goes to my spouse or if I have children everything goes to my kids.

It really depends who in your blood family is living or your parents living.

>> Are they not living?

So it's it's not is is crystal clear as you might think it would be.

I'm certain that folks have the notion that gosh, if I'm married I know my spouse can make health care decisions for me during my lifetime, can make financial decisions for me during my lifetime and when I pass my spouse gets everything that's not necessarily the case.

>> So you would be encouraged to seek out the advice of an elder law attorney and make sure that your wishes are are well documented written down, witnessed etc.

and that you can put all that into place.

OK, all right.

That that clarifies a lot of that.

>> Thank you for addressing that.

Alooshe has called in as well.

Busy on the phone tonight here here's Lucy's question.

She said What is the difference between a trust and an LLC which is better to use?

>> So those are radically different instruments.

We have trusts.

We have LLC.

LLC stands for a limited liability company so LLC is a type of company limited liability company.

We have members in that LLC people that own excuse me people that own an interest in that entity.

>> It could be one member of an LLC to members right.

>> Multiple members of the LLC.

Do you have to have a company or a business LLC the C stands for company limited liability OK so it is a company you're forming it and so you've created that company sometimes we would use LLC as part of estate planning.

So let me let me get back to that in a moment.

So the trust though a trust is I'd like to think of a trust.

>> It's just a contract in essence I've written this instrument.

I'm indicating who it is that during my lifetime is managing it.

The trustee typically yourself.

So you're the trust maker.

You made it normally assuming we're doing a revocable trust you're your own trustee and who's going to benefit from the money inside that trust?

And typically again if you're writing it for yourself you would be the lifetime beneficiary and then when you pass you're you would be indicating who is it that's the trustee at that time?

Who is it is the beneficiary who are the beneficiaries at that time?

Children, charities, religious entities, whatever it may be.

>> So we're normally for estate planning purposes transferring assets at the time of her passing looking at using trusts limited liability companies aren't necessarily part of estate planning in and of themselves.

I have used them to put real estate into for example if I wanted to transfer a farm or the lake house that Sandy was referencing earlier to loved ones and how do we have something in place that allows the kids to know how that lake house is going to be managed?

It's funny just today I was I had lunch with another elder law attorney and we were talking about establishing within that limited liability company who got to use the lake house on what weekends, what holidays, what everybody is responsible for so we can do all of those things within an LLC or within a trust.

But to answer your question, one isn't better than the other.

>> But if we're looking at estate planning we're typically looking at using trusts not LLC and then during your lifetime you could form an entity called a limited liability company put assets into that.

But those that that ownership interest of that LLC would normally be transferred into the trust.

So they're not exclusive.

They could work together but we don't normally use an LLC for for estate planning purposes.

>> That's that's a good clarification.

Thank you and thank you for for giving us the call here tonight.

>> I'm curious if if you want to leave certain things that you or your family considers very valuable to somebody in your family or friend or whatever, how do you go about that to make sure that they get it upon your your demise?

>> So if you're looking at an item of personal property, let's say gosh, this bowl is a family heirloom and I want to make sure it goes to a particular person I'd like to see clients using something called a personal property memorandum.

>> So you reference within the trust, you reference it within the will and you'll say I have the ability to create this memorandum during my lifetime and so I'm going to sign it and date it and that memorandum then would be used to determine who gets that face, who receives this table, who gets this pillow.

So we want that to be in writing.

The nice thing about that using that memorandum is if you change your opinion about who's going to get that pillow or that table, I can instead of rewriting the entire will rewriting the entire trust I can just change the memorandum and I can amend that that's an easy amendment doesn't require those instruments to be rewritten if we're to have to be notarized or legally done.

>> So wills are not notarized.

Trusts are notarized.

>> OK, so in that memorandum could just be signed and dated.

It doesn't need to be notarized, doesn't even need to be so you could attach that to your will or had that with your will and change it or add to it at any time if you need it to.

>> Now if you're looking at a larger asset we're looking at something more significant a real estate.

I think we've got a couple of questions about real estate.

We've had that tonight or you're looking at a brokerage account or a checking account savings account I would want you to reference within your estate planning document the will the trust who's receiving that you could do a specific amount although I like to see percentages I think percentages are cleaner than using dollar amounts because today I have one hundred thousand dollars and so I'm going to say well person get seventy five thousand dollars and person B gets twenty five thousand dollars but if I pass away in my estate is at seventy five thousand dollars it's not as clean for me to be able to say this person gets seventy five thousand this person gets twenty five thousand but had I said seventy five percent to this person and twenty five percent to that person and if my estate had shrunk or had grown it would be a different amount it would be it would your percentage was flow with it as opposed to a set dollar amount.

So I'd like to use percentages unless we're talking small dollar amounts several hundred dollars a few thousand dollars something like that then I'm not as keen on having to have it as a percentage but but yes I'd like to see the percentages posed to a set dollar amount.

>> We have another phone call and unfortunately we're we're very close down time for the end of the show so we'll have to keep this brief Brian.

But Mike called in and he said Vernon State with no well does a third cousin have any right to part of the estate?

>> All right, Mike, so you're going to really press me on my knowledge of that intestate succession statute.

So what I would say generally is that if you are not married your parents aren't living, your children are not living, your siblings are not living.

>> There is a literally a chart that goes out determining who it is that receives those funds .

So is it possible the third cousin without having that statute in front of me it is possible that a third cousin may be in that intestate statute that they would be able to receive some money.

I remember in law school my my professor called that a laughing air meaning that we didn't anticipate getting any money and what do you know?

I'm a third cousin and I got some cash.

That's why people always look it up when we get the you know, the big newspaper broke the obituaries and claimed oh yes.

Unclaimed property.

Yeah, yeah, yeah.

You think oh dear somebody left me something and I don't know.

>> OK, interesting.

Now I'm going to have to go home and see if I have any third cousins.

>> Thank you all for watching Brian.

Thank you for sharing your information tonight with our guests and thanks so many of you for calling in.

We'll be back next Wednesday night at seven thirty and we will see you then.

Good night.

Stay safe.

Stay healthy Nugen Law; specializing in estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.