Bielski Law Office, Ltd.

Guardianship Laws and Elder Abuse

Guardianship laws are meant to protect people who cannot take care of themselves. However, many people think that the laws do not do enough to protect elderly people from abuse.

The process for what happens when an elderly person can no longer handle his or her own affairs and does not have powers of attorney in place is more or less the same in every state. A guardianship petition is submitted to probate court. If the court agrees that the person is legally incapacitated, then the court will appoint someone as a guardian. This person will then be responsible for the elderly ward's financial and personal affairs.

Many people believe there is an inherent bias in most states' guardianship laws.

Guardians are required to make regular reports about the financial affairs of the ward. Although it does not always work, this helps prevent the guardian from taking financial advantage of the ward. However, most of the time guardians are not required to report on the well-being and care of the elderly person.

Consequently, courts do not know if the ward is being abused or neglected unless a third-party makes a report.

Some states are attempting to change this bias by updating their laws to add new reporting requirements.

As the Jackson Free Press reports in "State Eyes Changes to Guardianship Laws," Mississippi has appointed a task force to consider changing its requirements.

Changing guardianship laws to make elder abuse less likely is good and important work. No elderly person should have to suffer from financial or personal abuse.

However, it is also important not to rely on guardianship laws as the only way to take care of incapacitated elderly people. Everyone should get the necessary powers of attorney in place before they become incapacitated to make it less likely that a court will see the need to appoint a guardian in the first place.

Reference: Jackson Free Press (Dec. 22, 2015) "State Eyes Changes to Guardianship Laws"

What to Do after an Alzheimer's Disease Diagnosis

If you or a loved one is diagnosed with Alzheimer's disease, it is important to take immediate steps to ensure that end-of-life care is as comfortable as can be.

There is a common myth that people with Alzheimer's are completely incompetent and cannot be trusted to make their own decisions. It is not true as the early stages of the disease are relatively mild.

People who are diagnosed with the disease early enough can still make their own decisions. However, as the disease progresses most do eventually lose the ability to make their legal decisions as NorthJersey.com points out in "Planning becomes vital following Alzheimer's diagnosis."

The article suggests that people who receive an Alzheimer's diagnosis should get a general durable power of attorney, a health care power of attorney and a living will.

The powers of attorney will allow the person to appoint someone else to handle financial and medical affairs, respectively, when the Alzheimer's patient is no longer able to do so. The living will is used to give advanced directives about what type of treatments doctors should employ to keep the patient alive.

These are important documents to have.

Getting them after an Alzheimer's diagnosis is solid advice. However, even better advice is not to wait until after receiving such a diagnosis. All three documents are part of general estate planning. There is no need to wait until you know you will need them to get them.

Plan ahead and get them now before an issue of competency is raised.

Reference: NorthJersey.com (Dec. 27, 2015) "Planning becomes vital following Alzheimer's diagnosis."

How Healthy Will Elderly Baby Boomers Be?

The baby boomer generation is on average expected to live a lot longer than previous generations, but that does not mean they are expected to be healthier than the elderly of those previous generations.

In 2030, when the last of the baby boomer generation will be fully eligible for Medicare, the average life expectancy of a 65 year old is projected to be 20.1 years.

A recent study suggests, however, that those elderly people who will live longer will do so in poorer overall health than the elderly people from previous generations. It appears, in part, this is because medical science has done such a great job of finding treatments for diseases that often kill people early, such as cardiovascular problems. As people will be living longer, however, they will get other diseases, such as cancer and Alzheimer's, in greater numbers.

The Bangor Daily News reported this story in "Baby Boomers are more likely to spend their last years in worse health than past generations."

This has important implications.

While an individual cannot know for certain whether he or she will be one of the people who live longer and suffer from disease, individuals can play it safe and plan ahead.

The wise baby boomer would plan as if he or she will live as an elderly person for a long time and will likely suffer health complications as a result. This means that baby boomers should get estate plans that include powers of attorney and advanced health care directives. That way should they get sick or become incapacitated in their elderly years their affairs will still be handled by people of their choosing.

Reference: Bangor Daily News (Dec. 29, 2015) "Baby Boomers are more likely to spend their last years in worse health than past generations."

Family Sues to Reverse Brain Dead Declaration

Issues concerning when a person can be taken off life support did not go away when the Terry Schiavo case stopped appearing in the headlines. A current lawsuit in California highlights that the issue is still very much alive.

In December of 2013, then 13-year-old Jahi McMath checked into an Oakland hospital for routine surgery for sleep apnea. Doctors initially believed that the surgery was successful, but complications soon arose.

McMath began bleeding profusely.

She suffered from brain swelling and cardiac arrest. A few days after the surgery, McMath was declared to be brain dead by the doctors. The designation is important as when a person is declared brain dead hospitals are no longer required to provide life support or other treatment.

However, McMath's mother refused to agree to allow her daughter to be taken off life support.

After a court battle a judge agreed with the doctors and declared McMath brain dead. Her mother continued to believe otherwise and quickly arranged for her daughter to be transferred to New Jersey as that state has a religious exemption that allows families to keep brain dead people on life support for religious reasons.

For two years McMath has continued to "live" in New Jersey on life support and her family insists that she shows signs of not being brain dead, but California has refused to remove the designation. Now, her mother has filed a lawsuit in federal court demanding that California be forced to do so.

Courthouse News Service reported this story in "Family Wants Brain-Dead Girl Declared Alive."

What this case highlights is the importance of advanced health care directives, especially living wills. The one person who does not have a say right now regarding whether she remains on life support is McMath. She is a minor so her parents' wishes would take precedence over hers in any case. Adults, however, can avoid these types of situations and make their own decisions by getting living wills as part of their estate plans.

Reference: Courthouse News Service (Dec. 24, 2015) "Family Wants Brain-Dead Girl Declared Alive."

The Real Tax to Worry About

The federal estate tax might get most of the political headlines, but the truth is that it affects a relatively very small number of Americans. Of far more concern for most Americans is how the federal capital gains tax will impact their estates.

If you listen to enough politicians speak, you might come away with the impression that the biggest concern for American estates is the federal estate tax. This might lead you to believe that if your estate is smaller than the $5.45 million individual exemption, then you do not need to worry too much about how taxes will affect your estate.

However, there is a silent estate killer out there.

It is the federal capital gains tax, which can be as high as 33% and can have a devastating impact on estates that do not plan for it.

Recently, Market Watch offered some estate planning tips about the capital gains tax in "5 ways to protect your estate from capital gains taxes."

The tips include:

• Undo a Trust – Assets put into a trust to keep them out of the estate can have a greater capital gains tax cost when eventually sold.
• Upstream Gifting – If you give an asset to an older family member, that asset will receive a step-up basis for capital gains when the older person passes away.
• Joint-Exempt Step-Up Trust – These special trusts allow a surviving spouse to sell an asset after a spouse passes away without having to pay capital gains tax.
• Home-Sale Tax Exclusion – If you have lived in and owned your home for two out of the last five years, you can sell it without owing capital gains on the first $250,000 of appreciation or $500,000 for married couples.
• Like Kind Investments – Selling one type of property and using the proceeds to invest in the same type of property can allow you to delay paying capital gains tax.

To learn more about these tips for dealing with the capital gains tax visit with an estate planning attorney.

Reference: Market Watch (Dec. 25, 2015) "5 ways to protect your estate from capital gains taxes."