Estate Planning —The Importance of Planning — Before a Crisis!

Estate planners and elder law attorneys are regularly confronted with clients in a crisis situation. The critical element for handling many of these cases is whether the client took those vital steps necessary to plan ahead before the crisis. Was there any planning at all? Were the planning documents prepared properly? Do the choices made earlier still reflect the current wishes? Are the documents legally valid?

It’s not uncommon to find people in their 60s, 70s, and even 80s who have done no planning. If they’re still mentally competent, they can set up a plan now. The problem cases are when there’s an accident, a sudden stroke, the rapid onset of dementia, or death. Who takes care of things for the individual, and what happens to the family? The family can always ask the government to intervene, but subjecting your family to Conservatorship (Guardianship) proceedings in court can be a very tortuous and costly experience, and the end result may not be what anyone really wanted.

Making advance arrangements for other people to make your decisions for you can save your family a lot of anguish, time, and money. You’re also more likely to get the end result you had hoped for in the event of a crisis.

Before a crisis hits, people should consider their long-term care needs and their family dynamics. If family members have squabbles or resentment now, that will likely intensify in a crisis situation. Frequently, an individual doesn’t want to offend a sibling or adult child by naming someone else to be the responsible person, so they name co-trustees for their trust, co-executors for their will, and co-agents for their durable power of attorney. The naming of two people to make the decisions together is an idea that frequently results in litigation and family members becoming enemies of each other when they disagree. It’s a risky option.

When it comes to family circumstances, families are always changing — births, deaths, divorces, second marriages, and self-destructive behaviors by heirs, are common issues. Is your son-in-law still the right person to make decisions for you even if he’s in the middle of a nasty divorce from your daughter? What if your financially astute mother is in the early stages of dementia when it comes time to make decisions that will affect you and your children?

Our laws are quite specific regarding the legal requirements of your planning documents. The do-it-yourself approach often leaves people with documents that are not valid, or are unclear as to the individual’s wishes. The use of do-it-yourself documents in estate planning is generally considered to be the number one reason for the growth of probate and estate litigation. You might save a few thousand dollars up front, but then your family burns through a few hundred thousand dollars in litigation expenses. It happens regularly.

If you haven’t yet arranged for others to make the necessary financial and health decisions for you, take the time to do it now. If you don’t have a legally valid document establishing the distribution of your assets upon your death, take the time to do it now — and do it all properly. You owe it to yourself and to your loved ones to get it done, and to get it done right. Lack of planning, and errors in planning, can be very costly for everyone.


Medi-Cal Attorney – What have you done to plan for you and your spouse?

What have you done about planning for yourself or your spouse down the road? Have you made it easy for others to care for you? Do you have the proper documents in place? Do you have long term care insurance? Is it adequate?

If you have long term care insurance, check it out and make sure that the coverage is adequate for you. Some policies may only cover a portion of what you’ll need, but check the monthly coverage amount and the lifetime benefit amount, and then add in your other income from Social Security or pensions to see if you think it will be enough. The cost of most nursing homes in our area is about $8,500 to $10,000 per month. If your long term care insurance will cover in-home care, then it may permit you to remain in your home much longer without moving to a facility that provides a higher level of care. Think about the total cost.

If you have assets that can be used to provide for your care, do you have the proper documents in place so that your spouse or children can access those assets? Do you have a durable power of attorney that is specific to the needs of elder law planning? Do you have a gifting plan in place, or have you given your agent gifting powers?

One of your goals should be to have the right documents in place so that others can care for you without going to court to establish a conservatorship over you or your assets. A conservatorship is something that you generally want to avoid. The emotional and financial costs of a conservatorship are high, but they can be avoided through proper planning.

What about Medi-Cal Planning? Nobody wants to go to a nursing home, but sometimes that’s the best — or only — option for someone. Statistics show that if you reach the age of 65 years, there’s a 50% chance that you’ll spend some time in a nursing home. And, the average stay for people who go to the nursing home is two and a half years. That’s 30 months.

A major problem faced by elder law attorneys who practice Medi-Cal planning is simply the lack of knowledge by the public. Most people don’t know that advance planning and crisis planning are available, and that the Medi-Cal laws specifically allow for this. A classic example of this is a woman I met at a wedding a few years ago. When I told her that I was an elder law attorney, she leaned forward and told me that they had spent over $500,000 of her mother’s money on nursing home care before anyone told them to go see an elder law attorney.  …  Shocking? It happens all the time.  …  But it doesn’t need to be that way.

Is there someone in your family who is struggling with dementia? Line things up in advance. Don’t wait.

I have a client whose father has had Parkinson’s disease for years, but he was still managing his own affairs okay so nobody sat down with the father to plan ahead. When the father suddenly slid into severe dementia, he couldn’t tell his son where his safe was hidden, why he had taken out a reverse mortgage that now had a high balance, or where all the money had gone. Was the father a victim of elder financial abuse? We don’t know.

The comment I often hear is, “I wish we would have started this two or three years ago.” Don’t let that happen to you. Plan ahead.

Jim Ward helps couples and individuals throughout the bay area with medi-cal planning. Call Jim today for a free consultation – 1-800-JIM-WARD.

Estate Planning Attorney – Have You Taken Care of Your Children?

Whether your children are minors or adults, there is always the question of whether you have taken care of them with proper planning, and whether you have made the right choices so that they can easily care for you if needed.

Life insurance can be a great asset in caring for your children, but people need to think it all the way through. Money alone won’t necessarily solve everything. Do you have legal documents that establish guardians for your minor children? Have you set up a trust for the money and established rules for using the funds?

One individual recently told me that he had no will or trust that would set rules for the support of his 3 and 5 year old daughters, but he and his wife had more than $2 million in life insurance set up to care for them. Really? Do you want your child to receive $1 million outright at age 18? How would you have handled $1 million when you were at that age? There’s more to it than just providing money for the support of minor children. Guardians should be named, and rules for the distribution of the funds should be established. Maybe they’ll need financial support before they turn 18. Who will control the funds? Think things through.

If you want your children or grandchildren to attend college, you can build incentives into the trust — but incentives are tricky and you should discuss options with an experienced estate planning attorney who can help you work through the downside to certain options. Some trusts only provide support if the child attends a four-year accredited institution, but what if the child wants to attend a community college first to save money, or wants to attend a special trade school or art school that doesn’t qualify as a four year program? Likewise, many trusts require that the child be a full-time student, but what if he or she is a young parent or single parent and can’t study full-time? What if they have a great full-time job and want to keep studying part-time? We’ve all seen these examples in families we know. The best results are usually obtained through having the money held in trust, and then granting flexibility to the trustee.

You should also give more than just a casual thought to the standard of treating all of your children or grandchildren equally. If your children are already in their 50s, you may have a good idea whether one may need more help than another, and you can determine whether that result is justified in your mind. When children or grandchildren are very young, however, or when you’re leaving money to children who haven’t yet been born at the time you sign your documents, you should consider the possibility that the children or grandchildren may have different financial needs as they grow up. Imagine the possibility that one child excels and has scholarship offers to great universities, while another child has a serious accident and needs special care and has special expenses just to get through the basic activities of daily living.

Estate planning attorneys deal with these issues on a regular basis and can help you through the different considerations to develop a thoughtful and caring plan for your loved ones. If you don’t have a plan, maybe you should put something in place now. If you’ve already established a plan, you should review it periodically and make sure that it still reflects what you want.



Elder Law: Do you know a victim of elder financial abuse?

Scams and scammers have been around for generations, but they seem to be more common these days and they seem to target seniors more often.  The unwillingness of scammed people to report their loss or admit that they’ve been taken advantage of allows much of the abuse to go unreported.

The Myth of the Underground Scammer

It’s easy to think that financial predators keep a low profile, but they’re often putting ads in print, on the radio, and on the internet.  California recently sentenced two people to prison for fraud against elders.  One was sentenced to over 12 years and their partner was sentenced to 18 years.  The two were ordered to pay $8 million in restitution to the victims, but the scammers claim to be destitute.

These con artists weren’t hiding.  They were heavy advertisers who hosted their own financial radio program.  They did many things that legitimate professionals do, and that’s often what makes the scammers so hard to spot.  Often only an expert can tell the difference between a professional and a scammer.

What’s the Profile of an Investment Fraud Victim?

The Financial Industry Regulatory Authority (FINRA) and AARP did a joint study and determined that investment fraud victims tend to be college-educated, married males between the ages of 55 and 65.  That’s a surprise to many people.  But there’s more than just investment fraud to watch for.  Fraud can take the form of telephone or mail solicitation, and even door to door solicitations.

When it comes to seniors, the FBI warns that “people who grew up in the 1930s, 1940s, and 1950s were generally raised to be polite and trusting.  Con artists exploit these traits.”

It isn’t uncommon to hear of seniors who have been tricked out of $40,000 or $80,000 or even their entire life savings.  Much of the fraud goes unreported because seniors are too embarrassed to let their friends and family know that they were conned, but seniors have been conned into sending thousands of dollars of cash through FedEx envelopes, and con artists working from other countries have used the telephone to talk seniors through the complex paperwork of wiring large sums of money directly overseas to the scammers.

Why are seniors often the victims?

Besides the fact that seniors tend to be more trusting in general, we know that our brains often slow down a bit as we age, and we know from studies that people’s math skills generally start to decline after age 70.  From the cases that I’ve read, the victims are often single individuals who live alone, and that means that there isn’t someone with them to be watching what goes on and questioning what they’re doing.

One of my clients with substantial assets was recently conned out of $400 from a stranger who appeared at her doorstep.  Once she realized what had happened, she made a decision to get her adult daughter more involved to protect herself from having it happen again.

What can seniors do?

Seniors need to have their independence and don’t want to have to ask their adult children for permission to spend their own money, but elder law attorneys often establish protection trusts where the senior gives up a substantial amount of control in order to ultimately protect the bulk of their wealth.  This requires that the senior have a “trusted person” who can be named as trustee.  We often name one or more of the adult children for this role, but if the senior can’t fully trust their children, we have to search for an alternative solution.

I often design Medi-Cal asset protection trusts to protect a senior’s assets.  These trusts have the added protection of keeping the assets out of reach of people trying to scam seniors.  We look for a balance between independence for the senior and protection of the assets.  Once the senior and the rest of the family realizes what can be done, and how we can set the rules, things normally come together nicely to provide the senior and their loved ones with greater peace of mind.

Note:  I recently wrote about “The Power of the Power of Attorney.”  I recently attended an elder law class in San Diego where the well-known key speaker estimated that 70 to 90% of all existing Power of Attorney documents do not meet the potential needs of the person who established the document.  Don’t let that happen to you.  Get your Durable Power of Attorney reviewed and updated by someone who understands elder law and long-term needs and risks.

For questions or concerns on this topic or the topic of estate planning, please contact Jim Ward, 1-800-JIM-WARD.

Medi-Cal Attorney: The Power of the Power of Attorney

Most people have heard of a power of attorney, and most have some vague idea of what it does and why such a document is used.  As a San Jose Medi-Cal attorney, the problem that I often encounter is that many people have a power of attorney that won’t allow their agent to do what must be done in some cases, or it gives their agent powers to do things that the principal was never aware of.

The power of attorney is often considered the most powerful document in your set of estate planning documents.  Don’t take it lightly.  You need to fully understand it.

What Does the Power of Attorney Accomplish?

The power of attorney allows the appointed person to act on your behalf to make financial decisions for you.  That’s why a power of attorney is sometimes called a “financial” power of attorney to distinguish it from a healthcare power of attorney.  It will generally allow an appointed person to take control of your assets for your benefit, and the person given that control is bound by fiduciary standards to act in your best interest.

What is a Durable Power of Attorney?

All powers of attorney end upon the death of the person who has granted the powers to someone else.  If a power of attorney is “durable,” that means that it is still in force although you become incapacitated.  Most people want their power of attorney to be durable so that their appointed agent can act for them even if they later become incapacitated.  “Non-durable” powers of attorney, which are rarely used today, were designed to protect a person during incapacity by making the document automatically invalid when the person was incapacitated and unable to revoke the document.

Who are the Parties to the Power of Attorney?

The person signing the power of attorney is called the “principal.”  If it’s your power of attorney, then you’re the principal.  The person who is given the power to act for you is called the “agent.”  The agent might be your spouse or it might be an adult child or other person close to you that you trust.

What Types of Powers of Attorney Exist?

There are general and special (limited) powers of attorney, and each of those could be either a military, contingent, springing, or presently effective power of attorney.  Most powers of attorney will be general in nature to allow the agent to exercise several different powers, and most will also be presently effective so that the agent is empowered to act as soon as the document is signed and notarized.  This shows the importance of appointing an agent you absolutely trust.

Agent or Co-Agents?

The issue that can arise when naming co-agents is whether you allow them to operate independently or they must agree on everything.  If they operate independently, is each agent aware of what the other is doing?  If they must act together, who acts as the tie-breaker if your agents disagree?

My preference is to use one agent at a time, but also name successor agents to follow after the initial agent in the event that the initial agent resigns, dies, becomes incapacitated, or declines or otherwise fails to serve.

Sometimes it does make sense to have co-agents.  In particular, I like this approach when a spouse is the named agent, but the principal realizes that their spouse already has some signs of dementia or early Alzheimer’s.  The appointment of a co-agent in this circumstance gives greater protection to the principal and often avoids the uncomfortable situation of having to address an agent’s mental capacity and asking that person to resign as the agent for their spouse.  If a trusted daughter or son has already been appointed as a co-agent who can serve independently, it can make the transition easier.

Does Your Power of Attorney Include the Right Powers?

An effective power of attorney for elder law purposes is significantly different than other powers of attorney.  The powers needed in the document vary with the principal’s age and health condition so that a power of attorney established years ago may not be desirable for that same individual today.  When it comes to Medi-Cal planning, a “standard” power of attorney established years ago may actually prohibit an agent from taking the necessary steps to protect the person’s assets.

Be Proactive

Every person age 18 or over should have a power of attorney in place.  If you need a power of attorney, or if you want to know if your existing power of attorney will be sufficient for Medi-Cal planning purposes, give my office a call so that we can set a time to review your needs.

Elder Law: Does your family really know what you want?

The Importance of Planning Early

You may be undecided about what treatment you want when you’re ill or how to transfer your estate when you pass away. . . and your family may even want something different than what you want. So maybe you should put your wishes in writing in a legally valid document to let everyone know.

All too often, when it comes to estate planning issues, spouses disagree with each other and the adult children disagree with their parents. Putting off the decision doesn’t make it easier, and it rarely gets solved by waiting. Issues such as whether you want burial or cremation, or whether you want to use a living will, or who will make your health care decisions, are all issues that need to be addressed. If you have minor children, do you have a valid will that appoints guardians for them if the need arises?

When people are faced with making the formal decision of how to split their remaining assets among their family members, many people freeze up. They may make a decision, but then not be willing to sign it until a few weeks have passed and they’ve reached the point where they know that they simply have to bite the bullet and get it done.

The California legislature has prepared a plan for each of us in case we don’t have a valid plan of our own. If you want to make your own decisions, however, you need to have your own set of documents prepared according to your own wishes. If you don’t act, the rules of the State of California will govern.

Most people take time to plan for a dinner party or their vacation, but they put off estate planning or long term care planning. Most people prefer to not think about how they will be taken care of as they advance in age, and they simply think that “it will all work out.” When it comes to long term care planning, including finding the appropriate care and figuring out how to pay for it, those who fail to plan are clearly the ones who risk losing the most.

As an estate planning and elder law attorney, I frequently see people who have waited too long to do their planning. It’s frustrating for their families, and frustrating for me as well when I know that something could have been done to better protect the person and the family if someone had only taken the appropriate action a bit sooner.

Nobody ever plans to have a stroke or develop dementia, but it happens unexpectedly to many of us. You need to plan for that possibility.

Insurance for long term care is an ever-changing area. Many companies that offered great policies before are no longer offering long term care insurance, and new companies are offering more conservative plans. If you’re at an age where long term care insurance is still affordable for you, you should look into it. If it isn’t an option for you, then you should meet with an elder law attorney to understand other options that you may have. Waiting is rarely a good option.

The Deficit Reduction Act of 2005 (known as DRA 2005) went into effect at the beginning of 2006. One of the reasons for the act was to make it more difficult for seniors to receive government assistance for care in a skilled nursing facility or supplemental care at home.

Every state except California has already adopted the new rules.

California still has a lot of elder law planning flexibility today, but that will change soon. Once California adopts those rules, people who haven’t planned in advance will pay and even greater price for waiting.

Proper planning, whether for estate planning, elder considerations, or Medi-Cal planning, can frequently provide for a better life for the senior, their spouse, and their heirs. It isn’t something to take lightly or put off with the idea that “things will work out” on their own.

“Planning is bringing the future into the present so that you can do something about it now.”

— Alan Lakein, Time Management Expert

Even if you already did some planning several years ago, maybe it’s time to pull out those old documents, dust them off, and see if they still reflect your wishes.

Contact us today to learn about how we can help you.

Elder Law Attorney – Elder Financial Abuse on the Rise

Elder Financial Abuse on the Rise; Losses at $3 Billion

Losses due to elder financial abuse are almost $3 billion a year, according to a 2010 survey by the MetLife Mature Market Institute.

A good portion of the abuse (35 percent) can be attributed to actions taken by family, neighbors, caregivers and friends. Of course, the 35 percent is only the number of reported incidences. For every reported case, it’s estimated that there are four or five cases that don’t get reported.

“Why do we so often find that the elderly are victims of financial abuse? Well, they frequently have assets that can be easily accessed, they generally don’t report the crimes (and sometimes they don’t even know they’ve been scammed), and they are very trusting individuals,” noted elder law attorney Jim Ward.  “The combination of these attributes makes them vulnerable. In a warning about senior fraud, the FBI noted that people who grew up in the 1930s, 1940s and 1950s were generally raised to be polite and trusting. Con artists exploit these traits.”

It was reported that a fast-growing area of elder abuse is financial mis-appropriation. Everything from e-mail investment scams to cash or check theft seems to be on the rise.

“I know a gentleman who was a brilliant scientist with a PhD. He continued with private research projects after retirement, and sold those developments to multinational firms. He outlived two wives, and had a wonderful retirement. Somewhere along the way, however, people started to take advantage of him,” Jim Ward shared. “When his daughter eventually took over his checkbook and the paying his bills, she discovered that he had made a series of donations of nearly $60,000 in the previous few months. Nobody had ever heard of the people or groups that had solicited those donations, and the gentleman himself couldn’t recall who they were or why he had given them money.”

The courts see cases like this everyday. The best way to counteract elder abuse is to have the proper paperwork in order so that directions are clear, and funds are protected and properly distributed when the time is right.

Why do we so often find that the elderly are victims of financial abuse? Well, they frequently have assets that can be easily accessed, they generally don’t report the crimes (sometimes they don’t even know they’ve been scammed), and they very trusting individuals. The combination of these attributes makes them vulnerable.

In a warning about senior fraud, the FBI noted “People who grew up in the 1930s, 1940s and 1950s were generally raised to be polite and trusting. Con artists exploit these traits.”

Jim Ward also shared, “In another situation, a 90-year-old client came to me because he had two houses and his daughter had taken over one, kicked him out, and changed the locks. How do these things happen? We all need to be more aware and alert to protect our elders.”

Jim Ward is a San Jose elder law attorney and San Jose estate planning lawyer. With offices in San Jose and Gilroy, The Law Offices of James A. Ward helps clients throughout Santa Clara County. To learn more, please visit

Estate Planning

Most people know that they should have some type of an estate plan in place, but they just haven’t gotten around to it yet.  Maybe they feel healthy (and lucky!), or maybe they just don’t want to face the decisions that need to be made in consideration of someday reaching the end of their life.  But it isn’t just about what happens to your assets after your death.  Good estate planning encompasses how decisions will be made if a person becomes incapacitated, and elder law planning takes things a step further to look at how your assets can be protected in the event that you need to move to a long-term care facility.

“It’s not estate improvising;  it’s estate planning.”

If you succeed in reaching the ripe old age of 65, the odds are slightly greater than 50% that you’ll spend some time in a long-term care facility.  The average length of stay in a long-term care facility is about two and a half years, and the cost of care in our area is about $8,500 per month.  That’s a little over $100,000 per year, and over $250,000 if your length of stay there matches the national average.  Some people, however, will end up in the nursing home for 5 years, 10 years, or even longer.  If you’re telling yourself, “I’ll never go to a nursing home,” your thoughts are similar to about 99% of the population.  Nobody wants to end up in a nursing home, but the unfortunate statistics show that many of those people were wrong and they actually do end up spending a portion of their lives in a long-term care facility.

But planning isn’t just to protect against the high cost of long-term care.  It also involves the selection of guardians for young children, powers of attorney for others to make your decisions when you’re incapacitated, the avoidance of probate costs, and the establishment of trust rules for the delayed distribution of assets to children or grandchildren.  A young man recently told me that he and his wife didn’t need a trust because they didn’t own a home.  He said that the only real asset they had for their two young children was $600,000 in life insurance.  Without establishing a trust with rules for the distribution of the funds, you have to ask if the children will be responsible enough to properly benefit from each receiving $300,000 at the age of 18.  Will they have any of the money left by the time they reach 19?  The parents are paying for the life insurance for the benefit of their children, but without proper planning, will the children really get the full benefit that the parents had hoped for?

And how do you handle things for your spouse?  If one of you moves to a nursing home, the other is referred to as a “community spouse” because they remain in the community.  If you should pass away, your spouse is then referred to as the “surviving spouse.”  Whether you’ve been married for 5, 10, or 15 years, or you’re in that lucky group that has been happily married for 40, 50, or even 60 years, you need to plan for how either spouse would continue on if he or she were to become a community spouse or a surviving spouse.  Good planning can make a substantial difference in the quality of life of the spouse who remains behind.

A great myth about Medi-Cal is that you can’t qualify unless you have no money at all.  That’s often the case if you don’t plan, but proper planning can protect a significant portion of your assets for the benefit of your spouse and your family.  Learn what can be done.

If you don’t yet have an estate plan, you should consult a knowledgeable attorney.  If you have a plan, but haven’t looked at it for 5, 10, or 20 years, I suggest that you pull it out, take a good look at it, and see whether it still accurately reflects your wishes.  If your plan was prepared without looking towards the potential need to have Medi-Cal pay for your long-term care, then your durable power of attorney may actually hamper the Medi-Cal planning efforts that need to be taken to protect your assets.  Be proactive.  As Gen. George S. Patton said, “A good plan violently executed now is better than a perfect plan executed next week.”  Don’t let yourself delay to that point where the lack of a plan hurts you and your family.