Cheri Elson has been licensed to practice law in California since 2001 and was certified by the State Bar of California Board of Legal Specialization as a Certified Specialist in Estate Planning, Probate, and Trust Law. Cheri is delighted to announce that she has begun practicing law once again!
Cheri is honored to have been chosen by Allen Drescher to carry on his practice, which is one of the most respected in the Rogue Valley and has been serving this great community for over 40 years. As well as providing legal counsel in the areas of Estate Planning and Elder Law, Cheri will be able to handle many other areas of law, serving the legal needs of both her existing clients and Allen’s clients as Allen has in the past.
Cheri’s service and commitment to her clients will not change. What will change are the resources she has to offer, the ability to fully represent her clients, and the opportunity to assist you in a wide range of legal issues.
I am often asked about the best way to pass their estate to their beneficiaries. As with everything in estate planning, there are many options and no one right answer. Understanding the options and their consequences will help a client determine what is right for them.
The simplest way to pass an asset is through an outright gift. At the client’s death the asset passes directly to the beneficiary, with no strings attached. This option works great when leaving an estate to adults with no health or dependency issues and is used frequently.
For those with young children, leaving them assets outright is not the best option. Others have beneficiaries who may not be good money managers for any number of reasons. In this situation, leaving the gift in trustmay be the best solution. When a gift is left in trust, the Trustee of the trust manages it for that beneficiary. The Trustee may make distributions directly to the beneficiary for “health, education, support, and maintenance” (distributing money to the beneficiary for rent), or the Trustee may make distributions for the beneficiary’s benefit (paying the landlord directly). When holding money in trust for a minor, the trust may provide distributions at certain ages, allowing the child an opportunity to get used to managing large sums of money more gradually. When holding money in trust for someone with money-managing or dependency issues, the decision may be to keep it in trust for their lives, making no outright distributions until their deaths, at which time it might be distributed to their children, or back to their siblings. Of course, when looking at this option, careful thought should be made when determining who the Trustee should be – leaving one sibling in charge of another sibling’s money can cause tremendous pressure on the family, and in order to maintain healthy and loving relationships within the family, it is ideal to discuss other options.
If a beneficiary is receiving government benefits based on need (Medicaid, for example), any gift could put those benefits at risk. In this case, leaving the beneficiary’s share in a Special Needs Trustis often the best option. This can be set up easily within one’s own living trust and is designed to protect the needs-based benefits. This, however, does not come without cost – the Trustee’s ability to make distributions are limited to “special needs” only, as allowed by federal and state laws. If distributions are made incorrectly, the benefits may be lost, so it is extremely important that the Trustee work with an attorney well-versed in administering Special Needs Trusts to ensure the beneficiary gets the most out of the trust while protecting the government benefits.
As you can see, many choices are available. Working with an experienced and caring estate planning attorney can help ensure all options are considered and that the choice being made is done thoughtfully and with full knowledge of what that choice means to your loved ones.
Back in March, I wrote a couple of articles focusing on chemical restraints and what we, as care-partners, can do to help ensure our loved ones are not subjected to this problem. Here is an article I found at the Alzheimer’s Association discussing not only the problems with using drugs not designed for Alzheimer’s patients, but also that non-drug approaches work better. I encourage everyone to read it.
Just Say “No” to Behavior-Calming Drugs
As and estate planning and elder law specialist, I feel it safe to say that no matter how many specific things we list in our Advance Directives, we will not be able to account for every possible end-of-life scenario that could arise. What we can do is add as much information as possible to our Advance Directives so that anyone reading it is able to gain a clear understanding of what we want or don’t want.
In order for us to provide this information to our agents, we must first be clear in our minds about our end-of-life decisions. This can be a difficult exercise, to be sure, and one that is vitally important. In his book, Being Mortal, Dr. Atul Gawande discusses what he sees as medicine’s failing by focusing on the length of life without looking at the quality of that life. He feels (and I agree) the better question to ask is what we each feel is a life worth living. It may be that a shorter life spent in comfort and with one’s family is preferable to a longer one that is ridden with pain, or in which we are sedated to the point we are unable to be with our loved ones. Each of us will have a different answer to the question and it is important for each of us to explore that answer for ourselves.
There are several resources to help us with Dr. Gawande’s question, both locally and on the internet. GoWish.org is a great place to start. Play their “game” online and then take a screen shot of the cards laid out and include them as an attachment to your Advance Directive. The State of Washington has developed an Advance Directive designed for those diagnosed with dementia and, although we cannot use their Directive in Oregon, we can take their language and incorporate it into our form, again as an attachment. For those interested, there are highly qualified people right here in the Rogue Valley who will work with individuals in an even deeper exploration into these questions.
If you are a care-giver for someone (paid or not), if you work in a facility where people needing care depend on others to speak for them, learn about those you are charged with protecting and truly advocate for them. Look at their Advance Directives; speak with their family; speak with them if possible, learn everything you can about their wants, needs, and desires so that when called upon, you can be certain that choices you make reflect their true desires. As caregivers, it is our job to be the voice of those for whom we are providing care. While we aren’t going to be able to identify every possible variable that may affect end-of-life decisions, we can thoughtfully consider and discuss what factors and situations would merit being covered in our Advanced Health Care Directives.