Consider Joe and Helen. They met just after he
was discharged from the Army. They married, raised
two boys and a girl, worked hard their entire lives,
retired with a nice nest egg of funds and looked
forward to time with their daughter’s children, who
they loved deeply and lived a few hours away. Their
first son lived out of state, had a well-paying job
and was married with no children, but separated from
his wife whom Helen was never very fond of. Their
second son had never quite “launched,” was not
married, had a hard time holding a job and was
currently on governmental low-income assistance.
Joe managed the family assets and finances. Their
home and a small checking account were held in Joe
and Helen’s name, but all investment accounts were
in his name alone. Joe did fairly well in the stock
market and he was certain that the assets would not
only provide for Helen and himself, but provide a
nice inheritance for their children and especially
their beloved grandchildren.
Helen’s memory had been on the decline for some
time but the children didn’t realize how bad it was
until Joe slipped while shoveling snow, broke his
hip and had to stay in a rehabilitation facility.
Helen could not be left alone and was not going to
be able to care for Joe when he came home. Helen
came to stay with her daughter who temporarily
reduced her full-time employment to part- time so
that she and Helen could visit Joe three to four
times a week. The daughter had to hire home
healthcare aides to be with Helen when she had to be
at work. Joe was recovering well, but suddenly
developed a blood clot and died.
Neither Joe or Helen had executed a will, a power
of attorney or an advance healthcare directive. None
of the children ever wanted to talk about the “what
ifs” and now the family was in crisis. They had
failed to plan.
Joe and Helen’s house and bank account are titled
jointly, but the assets in the investment accounts
were held in Joe’s name alone. With no will in place
providing direction on who should receive these
assets, how will they be distributed?
Answer: When a loved one dies
without leaving a will, he or she is said to have
When this happens, any assets held in the
decedent’s name alone will be distributed according
to the intestate laws of the state where the
decedent lived. Warning: such distribution may or
may not accord with that person’s wishes.
Unintended result: Helen will
only inherit a portion of the investment assets
(under Pennsylvania law: $30,000 plus ½ of the
balance of the funds) and the children will receive
equal shares of the remainder of funds.
Should the son that is separated get divorced,
the daughter-in-law, who Helen doesn’t care for,
could receive a portion of Joe’s estate in the
If the son on governmental assistance accepts the
inheritance money, he will most likely be
disqualified from his governmental assistance and
have to reapply after the inheritance money is used
up; or he may need to utilize a portion of those
funds to establish a type of trust for the funds so
that he may continue to receive the governmental
assistance and have the inheritance funds supplement
not replace his governmental assistance.
Helen no longer has the mental capacity to
execute a power of attorney. What is a power of
attorney and why is it so import
Answer: A power of attorney is a
legal document that allows one person (the
“principal”) to grant to another person (the
“agent”) the legal authority to make decisions and
enter into transactions on the principal’s behalf.
The legal authority granted can be significant,
including the ability to sell or purchase real
estate, transfer money, buy or sell securities, make
gifts and the like.
A durable power of attorney allows the person you
appoint to act in your place now, and when and if
you ever become incapacitated. Without a durable
power of attorney, no one can represent you unless a
court appoints a guardian. That court process takes
time, costs money, and the judge may not choose the
person you would prefer. In addition, under a
guardianship, your representative may have to seek
court permission (which might not be granted) to
take planning steps that you could implement
immediately under a simple durable power of
Unintended result: Instead of
Helen choosing an agent to manage her financial,
real estate and other matters via a power of
attorney, a court appointed guardian will be needed.
Although Helen’s daughter may be appointed by the
court as her guardian, Helen could have designated
her daughter as her agent and saved thousands of
dollars in legal fees.
Helen no longer has the capacity to execute an
advance healthcare directive. What is an advance
healthcare directive and why is it so important to
have one in place?
Answer: An advance healthcare
directive is an instruction given by you concerning
the medical treatment or care that you would want -
or would not want - should circumstances arise where
you are no longer capable or competent to give such
an instruction. Advance healthcare directives are
the best way to ensure that your express wishes for
health care are known and honored.
result: Helen’s wishes for her medical treatment and
end of life decision may not be followed.
Helen no longer has the capacity to execute a
will. What are the ramifications of her failure to
Answer: Helen will not be able
designate who will inherit her assets when she
passes. Although her guardian will be authorized to
utilize her assets for her while she is alive, any
assets remaining at her death will pass under state
intestate laws, resulting in some of the same
unintended results as occurred when Joe passed.
Daughter provided caregiver services and expended
(and continued to expend) personal funds for the
benefit of Helen without documenting the
arrangement. Can daughter be reimbursed?
Answer: Yes, but if daughter
accepts payment(s) for services and expenditures
without a properly documented caregiver agreement
and then if Medicaid is needed as a source of
funding for skilled nursing care for Helen, such
payment(s) may be determined to be an inappropriate
transfer of funds and cause an ineligibility period
of Medicaid benefits resulting in the family having
to pay for skilled nursing services that Medicaid
would have otherwise covered.
Joe and Helen failed to put in place a “SENIOR
PLAN” – what’s your SENIOR PLAN?
We all want peace of mind about our welfare and
our assets. You are the only one who can make
important decisions about how you would like to
live. Those decisions MUST be documented. In this
case, information is power! Anyone who is aging, or
has elder parents, should engage in non-crisis
planning and review their SENIOR PLAN with an
experienced elder law attorney. Don’t be a Joe or
Susan Piette is an attorney
with the law firm of Hamburg, Rubin, Mullin, Maxwell
& Lupin, assisting parents and their children with
estate planning for over three decades. Contact
Susan at SPiette@HRMML.com or 215-661-0400ant to
have one in place?
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