San Jose 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.

San Jose 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.

San Jose 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 https://www.WardESQ.com.

San Jose 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.

San Jose Estate Planning – Estate Planning Essential During Multiple Stages in Life

Although some consider estate planning something that happens in the later stages of life for an individual, it’s actually best to consult and plan at regular intervals throughout life in order to ensure success.

Far more than simply drafting a will, estate planning encompasses planning for taxes, medical planning and business planning. It takes an experienced estate planner to walk you through the right decision-making stages.

Setting up kids’ college funds, career planning, after the birth of a child, contemplating future retirement, prior to marriage, after a divorce are all good milestones to seek the help of a trusted estate planning attorney.

“Clients frequently come in with an estate plan that is 15 or 20 years old and totally out of date because people have died and the value of their estate has changed,” said Jim Ward. “If the person would have died with the out-dated plan, they would not have achieved their intended outcome.”

In preparation for a meeting with an estate planning attorney, its advised to take an inventory of your current assets and intentions for estate planning.

The following are some basic estate planning questions to think about before you see an estate planning attorney:

*What is the approximate value of my assets?

*Which assets are a part of my estate?

*If I were to become incapacitated, who would I choose to manage these assets and make decisions concerning my care?

*If I were to die, who would best handle my assets for the benefit of my loved ones?

*If something were to happen to me, who would I choose to take care of my children?

Through the estate planning process, an individual is given the choice to decide how his assets will be managed in order to ensure the future of one’s spouse or children, and provide for care in the latter years of one’s life.

Personal care can also be predetermined – to some extent – if health care decisions become necessary.

Regardless of assets and income, estate planning is appropriate. There should be someone who is in charge of managing assets and making decisions for you. This person should also be able to make any medical decisions with your physician.

In the case that the estate is large, an individual may wish to explore how to preserve his assets for loved ones, as well as look at ways to reduce or postpone estate taxes.

The Law Offices of James A. Ward can help you at any stage of life, with office locations in San Jose and Gilroy, Mr. Ward covers nearly every corner of Santa Clara County. Contact us today so that we can discuss your unique situation and goals.

San Jose Elder Law Attorney Jim Ward Comments on Alzheimer’s Prevention

Green Tea May Hold Benefits for Alzheimer’s Prevention

The neurodegenerative disease, Alzheimer’s, affects one in three individuals over the age of 65, and is now the sixth leading cause of death in the United States.

The University of Michigan is working on a project that’s garnered support from the Alzheimer’s Association, Alzheimer’s Art Quilt Initiative, the American Heart Association and the National Institutes of Health. Information released from the study shows that green tea may prevent damage to proteins in the brain associated with Alzheimer’s disease.

Although this was not the first study done on the prevention of Alzheimer’s that specifically focuses on metal-associated amyloids, it’s the first multi-disciplinary approach. The next step is for the team to focus on altering the molecule so that scientists can test it on a typical Alzheimer’s plaque formation to see if the antioxidant inhibits plaque growth under lab conditions.

An extract found in the tea, called epigallocatechin-3-gallate (EGCG), an antioxidant, appears to prevent damage to proteins in the brain associated with the disease.

“There’s a lot of encouraging research being done in many parts of the world, but we’re not able to stop or reverse the disease yet,” said Jim Ward of the Law Offices of James A. Ward. “I deal with a lot of families that have a relative that’s suffering from some level of Alzheimer’s. Those situations are difficult.”

Alzheimer’s is the one cause of death in the United States currently that cannot be prevented, cured or slowed down. It’s estimated that more than 15 million people in the U.S. are caring for a family member or another loved one with Alzheimer’s — or dementia — usually without pay.

If you have a loved one who is suffering from Alzheimer’s or dementia and are feeling the weight of the care or the costs associated, you may want to see if your loved one qualifies for Medi-Cal. And rather than navigating the paperwork and current laws on your own, the Law Offices of James A. Ward specializes in Medi-Cal planning and asset protection for clients in their more advanced years.

Jim Ward is an elder law attorney and works with clients throughout the greater San Jose area and down into Morgan Hill and Gilroy. Contact us today for further information.

San Jose Elder Law Attorney Helps Those Expected to OutliveTheir Savings

Annual Survey by Merrill Lynch: Seniors’ Savings Accounts Not Adequately Prepared for Living Longer Lives

According to a Merrill Lynch survey taken in September 2012, the current life expectancy of 81.1 years for women and 76.3 years for men conflicts with the average savings account these days — leaving many seniors unprepared for the financial implications of living longer lives.

Concerns from financial experts are that the growing number of elderly folks that are living longer do not have savings accounts to support living longer lives.

The survey also found that almost 50 percent of 35- to 50-year-olds have “a high level of concern” for the financial welfare of their aging parents. This percentage is up from 32 percent in the 2nd quarter of 2010.

Interestingly, in 1975, women had an average life

expectancy of 76.6 years and men had an average life

expectancy of 68.8 years.

Adults who are concerned with the financial well-being of their parents may want to consult with an estate planning attorney that’s well versed in elder law. Here in California, for seniors that are ailing, Medi-Cal is available. Keep in mind that qualification for Medi-Cal is financial and medical –  meaning that seniors must meet both requirements.

For those seniors who are healthy but are living longer than expected, there are ways that children can help out if they have the financial means to do so. One example is annual gifts. Over $10,000 in gifts can be given, tax-exempt, to an individual. And in fact, a couple can give close to $30,000 to their elderly parents, without a penalty. This is a good idea for couples who can afford to do so and want to help their senior-aged parents retain some independence as they age.

Keep in mind that the advice of an elder law attorney is encouraged in these situations due to the fact that gifting is time-sensitive in that it can make some seniors ineligible for programs like Medi-Cal and Supplemental Security Income.

Jim Ward, an elder law attorney in the South Bay Area of California, serves clients in San Jose, Santa Clara, Morgan Hill, Los Gatos and Gilroy. He counsels a wide range of individuals across the elder law and estate planning spectrum. He specializes in Medi-Cal planning for seniors and wills and trusts for families of all ages.

Contact Jim today at 1-800-JIM-WARD