Texas Estate Planning

Is Estate Planning Affected by Property in Two States?

Cleveland Jewish News’ recent article titled “Use attorney when considering multi-state estate plan” says that if a person owns real estate or other tangible property (like a boat) in another state, they should think about creating a trust that can hold all their real estate. You don’t need one for each state. You can assign or deed their property to the trust, no matter where the property is located.

Some inherited assets require taxes be paid by the inheritors. Those taxes are determined by the laws of the state in which the asset is located.

A big mistake that people frequently make is not creating a trust. When a person fails to do this, their assets will go to probate. Some other common errors include improperly titling the property in their trust or failing to fund the trust. When those things occur, ancillary probate is required.  This means a probate estate needs to be opened in the other state. As a result, there may be two probate estates going on in two different states, which can mean twice the work and expense, as well as twice the stress.

Having two estates going through probate simultaneously in two different states can delay the time it takes to close the probate estate.

There are some other options besides using a trust to avoid filing an ancillary estate. Most states let an estate holder file a “transfer on death affidavit,” also known as a “transfer on death deed” or “beneficiary deed” when the asset is real estate. This permits property to go directly to a beneficiary without needing to go through probate.

A real estate owner may also avoid probate by appointing a co-owner with survivorship rights on the deed. Do not attempt this without consulting an attorney.

If you have real estate, like a second home, in another state (and) you die owning that individually, you’re going to have to probate that in the state where it’s located. It is usually best to avoid probate in multiple jurisdictions, and also to avoid probate altogether.

A co-owner with survivorship is an option for avoiding probate. If there’s no surviving spouse, or after the first one dies, you could transfer the estate to their revocable trust.

Each state has different requirements. If you’re going to move to another state or have property in another state, you should consult with a local estate planning attorney.

Reference: Cleveland Jewish News (March 21, 2022) “Use attorney when considering multi-state estate plan”

Florida Addressing Elder Abuse in Troubled Guardianship Program

Legislators and officials from Governor DeSantis’ administration met with judges, guardian trade groups, state attorneys and representatives from the Elder Law section of the Florida Bar to discuss how to protect seniors from exploitive and neglectful guardians, as reported in the article “DeSantis, Florida lawmakers consider changes in troubled guardianship program” from the Orlando Sentinel.

The Department of Elder Affairs Secretary Richard Prudom said that more must be done to enhance the accountability of guardians and be sure they are acting in the best interest of their wards. He added that the matter extends beyond the Department of Elder Affairs, and that families, communities and public officials need to work together.

This past summer reports surfaced about a professional guardian who was responsible for more than 400 wards. She reportedly signed “Do Not Resuscitate” orders for clients against their wishes. She also double-billed a healthcare company for nearly $4 million over a ten-year period.

Florida has 550 registered guardians.

Some of the suggestions made included capping the number of wards a person could take on and requiring a judge to approve a DNR order. Sen. Kathleen Passidomo, R-Naples, and Rep. Colleen Burton, R-Lakeland said that increased standards for guardians and more thorough monitoring was called for.

More stringent penalties for guardians who violate the law may be in the works. However, judges would have to approve the removal of any guardian from the state registry, which could be appealed.

Lawmakers said that more money to address the caseload isn’t the issue. Monitoring of guardians needs to be increased, said Passidomo.

As yet, there is no concrete plan in place to address this issue.

The Department of Elder Affairs houses the Office of Public and Professional Guardians, which currently has four employees. Prudom took charge of the department when the agency’s director, who was in charge, when the guardian mentioned above was asked to resign.

The governor’s administration will publish a budget request for the Department of Elder Affairs, which could include more funds for investigators to review complaints.

Reference: Orlando Sentinel (September 16, 2019) “DeSantis, Florida lawmakers consider changes in troubled guardianship program”

Think It’s Elder Abuse? Here’s What You Need to Know

If you take those numbers for a single county in California, and multiply them across the nation, you’ll get a clear understanding of how our nation is aging and the number of vulnerable people susceptible to elder abuse in the coming years. With the growth of older adults, the risk will grow, reports Event-News Enterprise in the article “How to Recognize, Prevent and Address Elder Abuse.”

There are a number of types of elder abuse: physical, emotional, neglect and financial abuse. Overmedicating a resident of a care facility is one form of physical abuse. Self-neglect occurs due to physical or mental decline or from the senior’s inability to pay for their medications.

It’s estimated that 11% of all elder abuse cases in the United States occur in California. Financial elder abuse is the fastest growing form of elder abuse in the country.

Elder abuse is also the most unreported crime. There are a few reasons for this: the senior is embarrassed at having been taking advantage of. When the abuser is a family member, or a caregiver, the senior is often afraid to report the person for fear of being harmed. They are reluctant to report a family member. And they are reluctant to report a person they have come to depend upon for care. Who will take care of them?

The most common types of elder abuse are the romance scam, the grandparent/friend/family member facing an immediate emergency, imposter scams (Social Security or IRS scams), employment scams and sweepstakes/lottery/prizes scams.

To combat elder abuse, reporting all and any types of abuse is critical. Physical elder abuse must be reported to Adult Protective Services (APS) or the local police department. Reports to APS are kept confidential. Anyone who is a victim of financial scam or fraud should contact the local law enforcement, APS or the Federal Trade Commission (FTC). Think of it this way: you are not only defending yourself, but you may be protecting someone else from being scammed.

Sometimes people can get their money back, but it is difficult. The best way to prevent elder abuse is to be educated and forewarned about the scams, so as not to become a victim.

Most nursing care facilities or hospitals have an ombudsman or patient representative office. Contact the office—most offer the ability to remain anonymous.

Elder abuse is a terrible shame, when people take advantage of those who are least able to protect themselves. With strong public outreach and education programs, seniors who are aware of the scams and their own vulnerabilities will be better protected and able to defend themselves.

Reference: Event-News Enterprise May 29, 2019 “How to Recognize, Prevent and Address Elder Abuse.”

Push Back on Elder Abuse with Good Estate Planning

These are just three out of many elder abuse cases that have made their way to the Queens (New York) County Criminal Court in recent weeks, reports the Queens Daily Eagle in its article “Nuanced Directives, Power of Attorney Can Stem Elder Abuse.” These cases of elder abuse, fraud, and predation are reflective of a far larger problem.

As this borough of New York ages, the instances of predatory behavior and outright scams are getting worse. Predators often start out as well-intentioned caregivers.  However, they then start to take advantage of the senior under their care. They may start as someone who comes every day to check on the senior, helping with bills and then they see the senior’s assets. Sometimes they begin thinking they are entitled to some or all the senior’s assets.

Other types of abuse include stealing deeds to homes, when younger people establish seemingly caring relationships with elderly people, marrying them and then stealing their money while isolating the victims from their families. This is sometimes called “granny-napping,” where the caregiver manipulates the senior and turns them against other loved ones or former caregivers.

Cases like this turn to heartbreak for genuine, caring family members. The abuser poisons their loving relationship with a parent or grandparents.

One way to stem this abuse, is to ensure that older adults have advanced directives before something occurs. The estate planning or elder law attorney can tailor the document, so the person does not forfeit their rights or property, while putting legal protection in place.

What needs to be understood is this: the person who signs the document and becomes a senior’s representative has a fiduciary duty to act in the best interest of the person. If they breach that duty, there are legal consequences. 

Bar associations work with attorneys across the country to help them in identifying and stopping elder abuse. The attorneys work with people in the healthcare field and in real estate, two areas where elder abuse occurs.

When an attorney suspects that elder abuse is taking place, the attorney has an option not to represent the agent and refer a case for guardianship on the grounds that the adult is being abused.

In markets where real estate values have skyrocketed, another real estate scam is for property hunters to go to Surrogate’s Court and find out who has died and who has inherited their estate. They approach heirs they deem to be financially or emotionally vulnerable and coax them into selling their property, usually for far below market value.

Putting an estate plan in place, can protect seniors from elder abuse. Speak with an estate planning attorney, to make sure that you or your loved ones are prepared for these scenarios.

Reference: Queens Daily Eagle (Aug. 8, 2018) “Nuanced Directives, Power of Attorney Can Stem Elder Abuse”

Financial Elder Abuse the Focus of Senior Safe Act

Congress has decided to try the carrot instead of a stick regarding financial service providers and financial elder abuse, as reported by WealthManagement.com in the article “The New Senior Safe Act Encourages Reporting Financial Abuse.” The legislation removes several provisions that were in the Dodd-Frank Act, based on the thinking that certain measures in the act made it harder for financial service providers to act on behalf of their clients.

Within the new law is the Senior Safe Act, cleverly branded as the S$A, which began as a bill from Maine Sen. Susan Collins. She created the S$A based on Maine’s elder abuse protections. The concept is surprisingly simple: banks and financial advisors are often the first ones to spot elderly clients making uncharacteristic transactions, from large account withdrawals to wiring funds to people who are not family members in distant parts of the globe. 

During the last decade, consumer advocates, state legislators, senior advocates (including AARP) and numerous financial professionals have attempted to make reporting of financial elder abuse an accepted best practice. The Consumer Financial Protection Bureau in 2016 identified more than 25 states and the District of Columbia that mandated reporting of suspected financial exploitation of the elderly.

A core component of the law links training employees to immunity for both the person reporting the suspected abuse and their institution, including credit unions, investment advisories, broker/dealers, insurance companies and agencies and transfer agents. These are all clearly defined in the S$A.

The institutions need to train their employees, while keeping in mind the privacy issues that arise, recognizing the need that the privacy and integrity of their customer’s needs to be respected. 

There is one wrinkle that should be noted by financial professionals and institutions. The language is clear that not just any employee who reports possible abuse gains immunity. Rather, the immunity is granted for those who serve as a supervisor or in a compliance or legal function, who act “in good faith” and with “reasonable care.” The law also requires the institutions to keep records on the training its employees undergo and the identity of any permitted abuse reporters. The burden remains on the institution to be sure the correct person reports the suspected abuse.

Most states today have an elder abuse hotline, often through the state’s Office of Aging Services. It seems that anyone who suspects elder abuse or financial elder abuse should want to make a phone call to protect vulnerable seniors. The more people who get involved, the better for seniors.

Reference: WealthManagement.com (May 29, 2018) “The New Senior Safe Act Encourages Reporting Financial Abuse”

Stan Lee Involved in Elder Abuse Investigation

It seems that 95-year-old Stan Lee is at the height of his fame. The characters he created for Marvel Comics currently make the film industry millions of dollars annually in film after film. Lee himself appears in a cameo role in every film. 

To most people Lee is known as a friendly, beloved creator of the superheroes that they love. However, there is another side to Lee's life right now, as police are investigating whether he is the victim of elder abuse, as Time reports in "L.A. Police Investigate Reports That Marvel Comics' Stan Lee Is a Victim of Elder Abuse."

After Lee's wife passed away, a man named Keya Morgan stepped in to assist Lee with his affairs. Morgan is on probation for an unrelated matter. It is claimed that Morgan moved Lee out of his home and will not let friends and family visit Lee. 

Police and a social worker were sent to Morgan's home to conduct a welfare check on Lee.  However, Morgan called 911 on them and falsely reported that he was being burglarized. Morgan now faces criminal charges for filing a false police report. A restraining order against Morgan has also been issued by a court prohibiting him from contacting Lee.

While it is not yet known whether Lee is a victim of elder abuse, a common sign is when a caretaker isolates an elderly person from other friends and family.

Reference: Time (June 14, 2018) "L.A. Police Investigate Reports That Marvel Comics' Stan Lee Is a Victim of Elder Abuse."

Senior Safe Act

What is one of the many issues hindering the fight against financial abuse of the elderly? The people who are often in the best position to notice it, fear speaking up about it.

People who work at financial institutions and insurance companies often see suspicious transactions. If they report their suspicions to authorities, they open themselves up to potential liability, if it turns out that they were wrong. In fact, they may be in trouble even if they were correct, but the abuse cannot be proven.

To address this problem, several states have given financial institutions and the people who work there immunity from liability, if they report suspected abuse to law enforcement or regulators in good faith.  However, not all states have done so.

As a result, some believe the federal government should step in and create such a law nationally. A big step toward doing that occurred recently as Think Advisor reported in "House Passes Senior Safe Act."

The Senior Safe Act works like the state laws that have already been passed. Those who work in financial institutions who, in good faith, report suspected financial abuse of the elderly to the proper authorities are immune from liability for their reports.

This bill has recently passed the House of Representatives. A similar bill passed through the Senate Banking Committee recently.  However, it still must be passed by the full Senate and signed into law by President Trump.

Reference: Think Advisor (Jan. 29, 2018) "House Passes Senior Safe Act."

Unexpected Expenses Delay Retirement for Many

The average American who lives to retirement age today, is living much longer than people used to live after they retired. Since the amount they saved for retirement was likely based on projections of having shorter lifespans, people are finding that they have not saved enough to meet their expenses.

To overcome that shortfall, many elderly people are turning to their children for assistance.

Unfortunately, that can create a problem for the children.

Those children with elderly parents who need assistance are now starting to enter retirement age themselves. They often did not save enough to take care of themselves and their parents.

Some of them are having to delay their own retirement as a result, as the Wills, Trusts & Estates Prof Blog discusses in "More Retirement-Age Clients Facing, New Unexpected Expenses."

This problem can be expected to get increasingly serious, as more elderly people continue to live longer. There is no easy solution.

Longer lifespans are already expected to put deep financial strains on Social Security, Medicare and Medicaid in the near future, so a government-based solution is not likely to be forthcoming soon.

If anything, the government will try to fix the finances of current programs, rather than come up with new programs.

For now, the best solution is at the individual level.

If you can afford to, you might want to save a little bit more for your own retirement than you think you will need, in case you need to help your parents.

Reference: Wills, Trusts & Estates Prof Blog (August 16, 2017) "More Retirement-Age Clients Facing, New Unexpected Expenses."

The CFPB's Elder Abuse Prevention Activities

Stopping the financial abuse of the elderly has proven to be a difficult task. The abuse is widespread and comes in so many different forms that government agencies and elder advocates have a tough time preventing abuse.

One thing that is being done is to raise awareness of the problem. It is for that reason, World Elder Abuse Awareness Day has been celebrated for the last 12 years. However, awareness alone is not enough.

The Consumer Financial Protection Bureau recently detailed some things it is doing to prevent elder abuse in "Preventing financial exploitation on World Elder Abuse Awareness Day."

One of the most important things the agency is doing focuses on reporting the problem in the first place.

Several studies and reports have detailed not only the scope of the elder financial abuse problem, but also how banks and other financial institutions can recognize it and help to prevent it.

Educational materials have been created so people can be trained to spot potential elder abuse. The CFPB has also put together local stakeholder support networks and distributed information directly to elders. For example, they have provided informative place mats to Meals on Wheels users.

If you think someone you know might be a victim of elder financial abuse, contact an elder law attorney in your area.

Reference: Consumer Financial Protection Bureau (June 15, 2017) "Preventing financial exploitation on World Elder Abuse Awareness Day."

In conjunction with the recent 12th anniversary of World Elder Abuse Awareness Day, the Consumer Financial Protection Bureau detailed some of its efforts to help prevent financial abuse of the elderly.

Elderly Man Flown to UK and Abandoned

In November of 2015, an elderly man was found in a parking lot in the U.K. He had dementia and authorities were not able to immediately identify him. Despite numerous calls to nursing homes and hospitals, no one seemed to know who the man was.

Authorities in the U.K. even contacted international embassies to help identify the man.

For eight months, the unidentified man was taken care of in a U.K. nursing home. It was only after the story was broadcast on the BBC, that a viewer recognized the man from an old high school yearbook. It turns out that the man is Roger Curry, 76, of California.

Law enforcement is now accusing his wife and son of flying Curry to the U.K. and intentionally abandoning him there, according to FOX News in "Relatives accused of abandoning Calif. man with dementia in UK parking lot."

This is not the worst case of elder abuse that has ever been seen, but it is one of the most unusual.

In this incident, at least the victim was found by law enforcement and well taken care of. The same cannot be said for many other victims.

Of course, that does not excuse what was done to Curry. It cannot have been easy for a man with dementia, to suddenly find himself alone in a foreign country.

Hopefully, his abusers will receive justice and no one will be inspired to copy their actions.

Reference: FOX News (Jan. 30, 2017) "Relatives accused of abandoning Calif. man with dementia in UK parking lot."