Wednesday, October 21, 2009

Spotlight On: Revocable Trusts

As an estate planning attorney, one of the questions I am asked most frequently is, do I need a trust? Many people are concerned that they should have a trust, but often do not understand why they might need a trust, or if it is even necessary at all.

Whenever the discussion turns to trusts, I always start by trying to understand the goal of the trust. What are we trying to accomplish by setting up this trust, and are there any alternatives to the trust? In the typical estate planning context, most people are interested in setting up revocable trusts, also known as living trusts. These are trusts that are created and funded during the creator's lifetime, as opposed to testamentary trusts, which are established after the creator's death. Some of the goals for creating a revocable trust are:

  • Avoidance of probate--assets transferred to the trust during the creator's lifetime do not pass through probate after the creator's death. This is especially useful for owners of real estate in more than one state, in which case, without a trust, multiple probate proceedings may be necessary.
  • Protection of beneficiaries--beneficiaries who are minors, disabled or otherwise not able to handle funds appropriately can be protected by having a trustee manage their share of the estate.
  • Incapacity of the creator--if the creator of the trust becomes incapacitated during his/her lifetime, funds placed in the trust can be managed for the creator's benefit without the need for a court-appointed guardian.
While all of these goals may be achieved with a revocable trust, there are alternatives. For example, probate can often be avoided entirely by using Transfer-On-Death designations for bank accounts, investments and real estate. An incompetent beneficiary can be protected by a testamentary special needs trust. Likewise, an individual can protect him-or herself in the event of incapacity by signing a durable power of attorney which grants financial decision-making authority to an agent. Given that it can cost several hundred dollars to create and fund a revocable trust, these less-expensive alternatives should be explored first.

Monday, October 12, 2009

Need for discussion on end-of-life care

In an editorial published last week in the Indianapolis Star, Dr. Paul Helft of the I.U. School of Medicine discusses the crucial need for patients facing terminal conditions to discuss with their families and physicians their wishes for end-of-life care. This topic has gotten increased attention lately as Congress and the nation have debated health care reform legislation. Unfortunately, those opposing reform have shifted the discussion to unfounded accusations of "death panels" or forced euthanasia of the elderly and infirm.

Such talk trivializes the importance of making thoughtful end-of-life decisions. Options such as living wills, health care representative declarations and do-not-recusitate orders are important legal tools for making such decisions. A new Indiana law also allows individuals to take control of their funeral and burial arrangements, thereby avoiding family disputes, by signing an advance funeral directive.

Everyone wants to have a good life, but few ever think about having a good death. As a society, we need to take a more mature and measured approach to end-of-life care. While this topic may be scary or uncomfortable for some, taking the time to think these things over and letting one's family, physician and legal representatives know one's wishes in advance is an important step towards easing the trauma of life's passing for all concerned.

(My thanks to Dr. E.J. Last of Methodist Hospital for bringing Dr. Helft's article to my attention.)

New DRA rules in effect on November 1

Major changes to Indiana's Medicaid rules will go into effect on November 1, 2009. These changes are occurring pursuant to a Federal law called the Deficit Reduction Act (DRA), which went into effect in February of 2006. Indiana was rather late in getting around to implementing the new law, but the changes are finally almost here.

The rules as originally proposed by the State were very harsh, and even went beyond the letter of the DRA in some respects. Thanks to the hard work of the Indiana Chapter of the National Academy of Elder Law Attorneys, among other advocacy groups, the legislature softened the rules this past spring. Still, the changes brought about by the DRA will have a major impact on seniors and the disabled in Indiana.

So what's new? The penalties for making gifts of assets in order to qualify for Medicaid benefits for nursing home services are getting a lot stiffer. The look-back period is also increasing--from three years to five years. There are restrictive new rules for planning with annuities and promissory notes, too, among several other changes.

The bottom line is that individuals who want to do asset protection planning will need to get started much earlier now. Even under the DRA, there are still many options for people who have five or more years to work with. For those who wait until the last minute, the options will be fewer and less attractive. Moreover, anyone who is considering purchasing an annuity and who may need long-term care within the next five years should consult with an elder law attorney first.

Welcome to my blog!

I'm starting this blog in effort to provide current information about estate planning, probate, elder law, Social Security disability and related topics. Nothing can replace a one-on -one consultation with a skilled attorney for personal advice; however, my hope is that this blog will be useful to those seeking information in these legal subjects. If you are in the Indianapolis/Central Indiana area, I would be happy to speak to you if you need further information on any of the topics covered in these posts. Please contact me via my