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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>> Hi there.

I'm Sandy Thomson, the host of this show which is called LIFE Ahead and I invite you to be a part of our show by calling with any questions that you might have.

It's a legal show tonight so perhaps you have some legal questions.

Our guest this evening many of you will know if you watch this regularly.

Brian Nugent Brian, welcome back.

>> Thank you, Sandy .

Thanks for having me.

Appreciate it.

Always good to have you here and I'll tell you right now if you have any questions for Brian, you might want to get on the phone as quickly as possible because we always get a lot of phone calls that when Brian is here and Brian, one of the things I think is very interesting is that for our topic this evening we're going to do like a definition Mernda.

>> We're doing a dictionary.

All right.-Of legal terms that t because Brian's been on many times and in another other we've had here on LIFE Ahead we've used a a legal terminology and we want to kind of go over all of that again and remind you what the definitions are and maybe what kind of circumstances or situations that might be used for being ready whenever your questions have got ready to go.

>> OK, let's start by talking about what does it mean to be in elder law and estate planning?

>> I see under the title of your name it will say elder law rights that mean so there's elder law and there's estate planning.

>> So when we think about estate planning I think of I'm planning for what happens when I die, where do I get word of my assets go?

I've identified who should receive what am going through probate.

>> Am I avoiding probate when I think of elder law elder law as much more robust.

So elder law not only does it engage in estate planning and transferring assets at the time of your passing, it's protecting assets during your lifetime making yourself available for benefits that may be out there through programs like the Veterans Administration, Medicaid etc.

So not only is it planning for asset transfer at the time of your passing for avoiding probate or going through probate, it's protecting assets during your lifetime and securing benefits to provide care for you as as you age or if you're a person with special needs.

>> We're looking for public benefits to provide for that so every elder law attorney does estate planning but every estate planning attorney does not do elder law.

>> Oh, that's a good way to it's there are two very distinct and unique areas and you need to be aware of them and make sure that if you're looking for protecting your assets as you age, if you're looking at possibly receiving benefits to provide care in your home or an assisted living facility, a nursing home memory care unit that you're availing yourself of a knowledge of an elder law attorney to make sure that you have all of your protections in place and and your instruments in place and that you're able to get those benefits, protect your assets and then eventually also pass your wealth at the time of your demise of your death you used the word instruments.

>> What does that mean when we're talking about legal?

Sure.

So an instrument would be anything in writing you're signing anything the attorney may be preparing on your behalf meaning your will be well, instruments instruments.

Yes, it could be wills, trusts, powers of attorney health care, representative designations, hippo waiver forms, any of the documents, any of those instruments that the attorney is preparing on your behalf to get accomplished what it is that you want to get accomplished?

>> Well, all right.

Let's talk about some of that was what is living wills, for example.

>> So a living will when we think of a living will it has nothing to do with the last will and testament.

A living will is do I have the will to live if the effort to sustain my life is futile.

So if I'm actively passing are you wanting to receive artificial hydration?

>> Are you when you receive artificial nutrition, are you wanting to be kept alive in a persistent vegetative state?

It's not a DNR do not resuscitate order.

>> A living will is a unique distinct instrument from that DNR and what it's saying is I've the doctors done everything that he or she is able to do.

>> There's nothing more that they can do at that point.

Do you want to be maintained with artificial hydration nutrition or you're saying it's OK to let me go?

You've the doctors done everything that he or she could possibly do.

You've received that instruction and you're saying it's OK love ones to let me go.

What I do like to point out about those living wills, Sandy , is that if you have appointed someone to be your health care representative, they can say I'm not quite ready to let you go yet.

I'm going to wait a day or two days to see how you're doing in my own mind to make sure that you really are actively passing and there's nothing more that can be done.

>> We don't use independent living wills as much as we did.

>> Now we can combine those with our health care representative designations.

But historically that was always the toughest thing that I saw people having to sign because they really had to think about gosh, if the effort to stay in my life is futile am I saying you don't need to to keep me alive?

What I encourage my clients to do not only is to sign those living wills or have that living wills language put into their health care representative designation but also to discuss with loved ones what do you want to have done if you are in that situation, if you're actively passing and the reason I encourage folks to have that that conversation with their loved ones is in the heat of the moment right when you're you're stressed out and maybe you haven't seen mom as often as you should have or dad as often as you should have because your life is busy.pYou t your parent is saying to you it's OK in that instance I don't want to be kept alive in a vegetative state.

So I'm hoping that some of the guilt will be relieved at the time that someone's needing to make the decision about whether or not to sustain to sustain your life is I know that you know when you're doing a living will as I recall it's been some time ago that I did my bit.

>> Do you have several categories that you can choose?

>> So yeah, the the in Indiana at least the state statute has a format of a living well and within that living well there >> One is I want to be kept alive summarize summarizing paraphrasing the first category and I want to be kept alive in a persistent vegetative state.

The second category is I don't want to be kept alive in a persistent vegetative state.

I don't want artificial hydration, nutrition and just let me go.

And the third option would be I intentionally make no decision.

I'm allowing somebody else my health care representative to make the decision for me.

>> But I would really encourage you if you're able to do it and you're signing a true living will make make option one or two .

Yes.

I want to be kept alive in a vegetative state or no I don't when you're passing that on to your loved ones gosh, that's putting a lot of pressure on that does that does go back to the earlier point that I made though have a discussion with your loved ones when you're not ill so that they know what you want and you're relieving guilt at the time and they're needing to make that decision for you.

>> I understand.

You know and again, if you love your family and love your loved ones, give them a break and make the decision whichever you choose course.

>> OK, we have a phone call already and this is coming in from James.

Thank you, James by the way for watching LIFE Ahead here.

>> And he says If I'm actively passing but I have no one to represent me who makes my health care decisions, that's a good question because I imagine it happens does happen.

>> So if we if you have not taken that affirmative step to appoint someone to make decisions on your behalf.

James, if you're actively passing if you have health concerns right.

You have a dementia cognitive impairment, it's possible that a guardian would be appointed on your behalf.

By whom?

Well, if the hospital may in fact need to find someone need to reach out for someone to be appointed if you truly have no one there are folks that volunteer to be guardians for other individuals and bless them because it's it's a tough situation to be put in.

Sure.

But the court would appoint someone to make decisions on your behalf if no one else is there to make decisions for you.

>> So the judge actually does.

The judge does.

guardianship petition is filed and then someone called a guardian ad litem is appointed to in essence represent you and advocate for you, James.

So the guardian ad litem would make a recommendation to the court.

Yes.

A guardianship does need to be established.

Yes, this person is appropriate to be a guardian for in this instance James and then that guardian of the of the person would be able to make health care decisions for in this instance again James.

>> Well, all right.

You said that the hospital may step in and assist with that.

>> Are they the ones that would search for a guardian and then prepare their legal documentation?

>> Again, this is an instance where someone has nobody that they've appointed.

>> I assume there is no family now by INS by state statute.

There's an order of priority of who would be able to serve as guardian for someone it doesn't mean that it's a shoo in.

You're automatically guardian if you're a spouse because you're not you're not automatically a guardian if you're a child you're not.

But there are categories of folks that the court may consider appointing to be the guardian of someone if they truly have no one around them.

So the hospital, their social workers may be reaching out to organizations that have a list of those folks that may be willing to serve as guardians for individuals that don't have anybody OK. >> All right.

Well, I hope you all have somebody I hope you do and it does happen when folks don't and it's tough so they don't have that opportunity as I was saying earlier to say if I'm in this situation this is what I want to have done.

>> They haven't had that person to have that discussion with and it is hard and that leaves the person who may or may not even know them very well in the position of having to make decisions.

>> Yeah, I've served in that capacity for folks that didn't have anybody and it is the responsibility I feel a great sense of responsibility for them and I want to make sure I'm doing an appropriate job for them.

serving we hope that they would have that same attitude and be very respectful of the individual where they are and making sure they're getting the best care possible medical care and financial care as well.

>> Got it.

OK. All right.

Some other terminology that you use often when we're talking about estate planning or writing wills durable power of attorney right and health care represented I put those two together because you often do them together so I don't like to do them together.

What I found is that folks will for example say gosh, I have one child that is amazing with money.

They're on it.

They're super organized.

They're going to make sure all my bills are paid and invest my money wisely.

But they could never make the decision about what health care I should receive.

So I'm going to opt for somebody else to be serving as my health care representative.

>> So so the power of attorney it's durable meaning that if you become incompetent at some point it's still in effect in Indiana that law changed and this is a random fact nineteen ninety one I think it was we didn't have durable power of attorneys at the time and if if somebody were to become incompetent that the power would no longer be effective.

>> So we want to use the language that it's durable in nature so that if you're incompetent it's still in effect.

The power of attorney for finances allows the individual that you've appointed your agent their title is attorney.

In fact oftentimes we'll hear someone say I'm their power of attorney.

You're actually not a power of attorney that the instrument the document is actually the power of attorney.

The person that's serving on behalf of the individual is the attorney in fact or the agent.

So that attorney in fact can do everything that the person that appointed them can do in writing there are springing and non springing durable powers of attorney.

>> So spring begins springing spring like a spring and non spring springing means if I am incompetent then it's effective not spring is it's in effect immediately.

>> Yeah I really am not a fan of of spring powers of attorney and my rationale is that if you are concerned that the person would take advantage of their appointment and access your money and use your money in a way that you wouldn't like if you think that they would do that while you're competent, my gosh they certainly would be doing that if there was a point in time where you are incompetent.

So I will get that question.

I'm sure other elder law attorneys get that question as well.

I don't want them to be able to use this now.

I'm afraid what they're going to do if you're afraid of what they're going to do, they're not the person to appoint appoint somebody that would be very consistent and respect the position that you've provided to them.

You ask about the health care designation so health care representative designation this May so health care represent designation permit somebody else to make decisions about your person, about your health care if you are no longer able to do so.

>> So this is contrasted with that power of attorney.

The power of attorney is in effect immediately typically and but the health care representative designation is only in effect at such time as you are incompetent or incapacitated.

>> I was mentioning a few minutes ago in relationship to your question about living wills we now can combine that-le health care representative designations and that's regularly happening now so we don't see as many stand alone living wills as we once did because of the change of law and indeed like what does that mean when you said it's only one instance the living so within within that health care a designation we would say things like if the efforts to sustain my life is futile please you don't need to keep your life with artificial hydration, nutrition and that same document.

>> We may also have language that says I do want to be an organ donor.

>> I'm letting my health care representative designee know it's OK to to donate to donate my organs if they can be used but that that health care representative designation that power of attorney are essential documents.

Everyone needs those to James question earlier in the broadcast he was saying what if I don't have anybody?

So there are times when we don't have someone appointed because people just didn't get around to it even with their when they're ill or they're facing struggles.

I still see folks that don't have those things in place.

We want those to be in place without it.

I have to go to court.

I have to request a guardianship.

I have to do a full financial disclosure to the court.

I have to have an ongoing accounting that I provide to the court.

My gosh, if you're able to appoint folks in advance to make financial decisions for you, health care decisions for you so if there comes a point in time where your health goes down, you're become incompetent, incapacitated, cognitively impaired, we really want those folks to be appointed so we don't have to go through that guardianship process.

>> OK, I'm kind of a weird question but maybe some of you were thinking the same thing.

You've used the word competent and incompetent.

Yeah.

Who decides when you're incompetent?

>> Yeah.

So normally within the instruments that we've prepared we're designating who does that makes that decision ultimately will be your primary care physician and make a decision sometimes you'll see in those documents it will say that the person that you've appointed could say I believe that you're incompetent and then the person that signed the instrument would need to be able to say that's not correct.

I'm still competent.

And the doctor then could make the decision about whether or not the person is or is not competent.

>> So are we talking mental or physical or both mental?

Mental.

Yeah, physically physical and we wouldn't even say that.

Yeah we wouldn't would want physical impairment does not make one incompetent.

>> A physical impairment is simply a physical impairment.

Yeah.

So being physically unable to ambulate to move does not alone make one incompetent incapacitated.

I've had a car accident I'm in the hospital I'm in a coma right.

It's incapacitated incompetent is a come out of the coma but I have something called a TBI traumatic brain injury and I can't think clearly I'm not I'm not who I once was or dementia.

>> So dementia dementia giant category I know underneath that and underneath the category of dementia we have the most widely diagnosed type of dementia Alzheimer's.

Sure.

Than we have Lewy body.

We have frontotemporal pick's disease Parkinson's dementia, any number of different types of dementias.

>> But yes.

So you bring up an interesting point I having a diagnosis of a dementia in and of itself does not mean that you're incompetent so I can have a diagnosis of dementia but I could still understand who I am.

I can still understand there's a phrase we use called the object of my bounty like who's going to be getting my money?

You can understand who it is that's going to be signing on your behalf making health care decisions on your behalf.

>> The court wants you to be in charge of your own destiny.

So despite a dementia diagnosis, that alone does not mean that you're incompetent in the moment when you're signing that instrument.

Do you understand what it says?

Do you do you understand who it is that you're appointing?

Do you know them generally?

Do you understand the value of of assets and and what it is that you're putting into place so again, a diagnosis of dementia alone sometimes I'll have people say oh they can't sign they have dementia.

Well, I don't know.

>> It may be very early on diagnosis Right.

It doesn't really affect so we can have decisions you and I today could have Alzheimer's and we don't know it.

It's the disease is taking place but we don't see the symptoms yet.

>> The symptoms of the disease are I'm I am unable to remember certain things.

I know I'm supposed to put this this cup somewhere but instead of putting in the cupboard I put it in the garage with my tools right there are that now we're seeing symptoms of the disease that it's displaying itself in a certain way often some of the early signals loss of speech.

>> For example, you talked about your cup.

Yeah.

Maybe you can't remember the word for exactly this holding my water.

>> What what is that now?

Yeah.

Yeah.

So it's common for us to not be able to what is their name.

>> What is their name that's common.

Oh good because I do that we all do that so two minutes later say oh yeah that Sandy I know Sandy but the person that has a dementia that Sandy that may never have had her back to them.

>> Yeah.

So there are times when we all have mild cognitive impairment that's a normal part of aging.

>> Dementia is not a normal part of aging.

OK, we have another phone call for you, Brian.

This from Deb and she says When someone dies, does it go to probate?

>> If not when they died and when?

>> So thanks for asking the question.-Let's talk first aboue so probate is estate administration.

>> That generally means I have my will if I have a will, I go to court.

I open up in the state.

I advertise in the newspaper that the person has passed away .

Anybody that has a claim you're welcome to file a claim in the estate.

If I don't have a will we go through something called intestate succession.

So last will and testament I have a will intestate means I don't have a will.

So when someone dies does it go to probate if you haven't taken steps to avoid probate?

And when I say that I mean you haven't written trust, you haven't done beneficiary designations, you haven't done those things if you have an asset that doesn't have a beneficiary on it through a trust or a beneficiary designation, then yes, the only way to transfer at the time of your passing with a few exceptions we would go through probate, go through that estate administration in Indiana.

It's very easy to transfer vehicles upon your death.

You could take a death certificate to the DMV and easily transfer a vehicle.

So in that instance the vehicle itself doesn't need to go through probate.

So there are some exceptions like that.

But generally yes, Deb, everything does go through probate then you say in your question if not when they die then yes, you would not be going through probate.

You wouldn't be going through a state of diminished during someone's lifetime.

>> That would only happen at the time of their having passed.

Is it usually pretty early on after someone passes or going to be months or two million or so?

To be honest with you, there are certain timelines that if you don't open an estate within unsecured debts may be forgiven.

So for example, if I have a credit card debt and I didn't open an estate for I'm only speaking about Indiana law right now if you didn't open an estate within nine months and there's unsecured debt, those unsecured debts are forgiven.

They couldn't be pursued.

>> So sometimes we wait to open an estate but you can open the state at any point after someone's passed and then through that estate administration use it to transfer one's wealth.

>> Got it.

OK, all right.

Now we have a question from Jane and Jane.

Thank you all for watching ahead here, here's what Jane wants to know Brian she said regarding power of attorney district an attorney have to write it for it to be legal or can somebody do it themselves?

>> Yeah, someone can do it themselves.

>> I'm hesitant to encourage you to do so to answer your question in black and white, yes, you can do your own document.

I can fix my own car.

I have zero skill.

I'm great with woodworking.

I can do all that.

I have no mechanical ability so can I fix my car?

>> I can fix my car.

No, there are things that you want to be aware of in your power of attorney.

We want depending upon what you want to get accomplished.

There are some times when we're talking about elder on protecting assets there's some language that we want in there to be able to permit the person that we appoint our attorney in fact to be able to do certain things to help protect our assets.

>> So somebody that isn't doing this on a daily basis may not be aware of that springing non springing durable, not durable.

>> So yes, technically you could do it by yourself.

I wouldn't necessarily encourage you to do that.

I really would encourage you to seek out counsel and seek out guidance in preparing that.

>> That makes sense then I I think we have another phone call here from Joyce.

I believe it was.

Let's take a look at Joyce's question for us this evening here.

>> I think that's going to be on the prompter here in just a second.

Yeah.

Joyce, if both parents pass, are their children responsible for their deaths?

>> So in a word no, you are not responsible for your parents deaths and I will receive that question.

>> The children come in sheepishly and say gosh, mom had a lot of credit card debt or there was a big mortgage on the house and the mortgage is bigger than the home is worth.

>> I don't know that I want to be appointed.

>> They probably feel guilty but they need an answer.

They need an answer.

Yeah.

Yeah.

I don't know if I want to serve as personal representative.

I don't know that I want to serve as that executor because I'm going to be stuck paying those bills.

No you do not have to pay your parents debts.

You're not anybody's debts when you're serving as their personal representative or executor their trustee you are not personally liable.

The assets of the deceased are used to satisfy debts that are valid in the estate or valid in the trust.

If there's a claim that's made saying Gosh I'm owed money, the executor the personal representative can say I challenge that I don't really think that money is owed so they can challenge that if they don't believe the debt is to be paid is as an appropriate debt to be paid.

But to answer your question, no, if you're serving as a representative executor you do not have to do to pay your parents debts or whomever else.

>> What about a spouse?

You do not have to pay your spouse's debts.

The exception to that could be medical debts.

There's something in where one spouse is responsible for the medical debts of another spouse.

>> OK, all right that makes sense.

I hate our half hour has gone already quickly.

Yeah I know it always does doesn't it.

There are so many more questions I had but Brian will be back and hopefully you'll keep watching us here on LIFE Ahead.

We're here every Wednesday night at seven thirty right here in the studio.

Different topic, different guests and like I said, you know, Brian, I'm sure we'll be back here to talk to all of you and give you some good legal advice.

>> Meanwhile, I'm just asking you to stay safe and stay healthy and enjoy the rest of the weekend 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.