Hi I’m Greg McIntyre, I’m here with Hayden Soloway and today we are talking about spring training.
I thought about this because it’s coming up to spring training season for baseball but this is about spring training for life and getting your bases covered. There are four foundations of elder law that everyone out there from eighteen to one hundred and fifty years old should have covered.
So Hayden, what do you have for us?
HS: Well, we talked about covering our bases and going through the steps to accomplish our goals and I got curious about baseball in general. To me baseball is little league and weekends at the ball park but I started looking at the stats of baseball and there are some interesting things here. Most baseball fans know that Pete Rose has the all-time record for hits, four thousand two hundred and fifty six (4256), and he played three thousand five hundred and sixty two (3562) games.
GM: And regardless of what anyone things of him, he was the best player to ever play the game of baseball, ever. That’s my opinion. You’re going to disagree with me because you’ve got the stats.
HS: No, well, I’m a Cal Ripken fan, he was there every single day and he was dependable but I have become a Yankees fan because my husband is from Brooklyn and he grew up with tickets to the Yankees and the Jets.
GM: A Jets fan huh. Let me tell you why I think Pete Rose is the best player of all time. He was a switch hitter, meaning he had home run power from both sides. He was a mean dude on the baseball field. He didn’t care how big you were, how tough you thought you were, he was running over you if you got in his way. He was steaming home. He had speed, he could steal a base and was an amazing fielder. Rose made it out there whether he was hurt or not and he ran out every ball to first base, foul ball, dropped third strike from the catcher, he was running it out. He didn’t just hustle though, he was a very talented baseball player.
HS: He was an example for a little leaguer.
GM: So, how do you teach a little leaguer to play? Watch how Pete Rose played big league ball. But just like Michael Jordan, there is a lot of players out there who can jump like Michael Jordan and who athletically could be him but they don’t have the mentality, they don’t have the mental game of Michael Jordan every time they step on a court. That’s what differentiates him from the rest, and what differentiates Pete Rose from the rest.
So, we’re talking today about rounding your bases, covering your bases. There are four bases, first, second, third and home base. What we are covering is chapter two in my book, ‘Saving the Farm.’ So, what is the first base of elder law?
HS: Power of Attorney.
GM: General Durable Power of Attorney, which is different than what people think. It really says what a power of attorney is. Do you know why a power of attorney is so important?
HS: When I need things done, I want to rely on a person I trust.
GM: I agree, you want to appoint a very trusted person. It could be a family member. If you don’t trust a person should you appoint them as your Attorney In Fact?
GM: No, you should not because it gives them the keys to your financial kingdom, so you need to appoint a trusted person. It needs to be ‘General’ because it needs to cover every possible scenario. It needs to be ‘Durable’ which means it needs to have a durability clause. A durability clause means it survives incompetency, incapacity, mental disability or lapse of life?
HS: That is a special designation you’re making for that person.
GM: That’s right, I like to set it out as a separate clause within the power of attorney entitled the durability clause. I like to entitle the power of attorney, General Durable Power of Attorney, I don’t want there to be any mistake or misunderstandings as to what this document is.
If it does not have a durability clause in it when you need it, when you are incapacitated, if you are laid up in the hospital and cannot do what you need to do with your personal business, then it doesn’t work. If you don’t have a durability clause at that time it ceases to have power. There are self-interest clauses in power of attorney where a family member such as a wife or daughter that you appoint as your attorney in fact, if you have a clause in there acting against self-interest, then that person cannot perform duties to transfer property or anything that favors or benefits them at all. It can be a real problem for some planning. It can be a safe guard if you don’t trust someone. You want to know if that is in there or not.
HS: I know by just spending times with you at signings and seminars, those documents you produced have every one of those bases covered. Every possible scenario has been researched and it is exactly what it should be.
GM: Also, it needs to be recorded at the local register of deeds in the county where you live because if it’s not and you are incapacitated or incompetent, then it is not good at that time. You can go and record it at that time but usually a family is not focused on that in an emergency situation. General Durable Power of Attorney also avoids guardianship situations. Costly, nightmare, contested (potentially in a courtroom battle) with a family member or sub third party, government agency or another attorney appointed guardian over your money and property. One document, a power of attorney, prevents that. It can save a huge headache having that in place ahead of time.
So, we are going to hustle to second base. The Healthcare Power of Attorney is similar to the General Durable Power of Attorney in that you are appointing a trusted person to make decisions for you. Why would you want to designate someone to make healthcare decisions for you?
HS: I have learned from experience when I’ve gone to the hospital they always ask who they should contact in an emergency because they need to know who that is. Who is it who knows your desires and your medical history?
GM: You know, many times you see the sister from Sacramento or the brother from Boise come in, and maybe there is a son or daughter taking care of mom or dad for years making healthcare decisions, and all of a sudden that sister or brother who hasn’t been around for a long time has a totally different view of care. So, what happens? Who is the doctor, the facility or the staff supposed to listen to? Which sibling or son or daughter do they listen to? It makes it tough on them.
I’d like to use another sports analogy here, you appoint a quarterback. Someone who talks to the doctors and nurses, to the staff and administration. It could be life or death decisions or long term planning decisions. After that they come back and huddle up with the family and they talk. That one quarterback then goes back to the doctors and nurses, staff and administration so it is one consistent message. That is very important for continuity of care, the correct care.
You want your Healthcare Power of Attorney to be HIPAA compliant so you can pull medical records and transfer medical records from facility to facility. Just try doing that without something that is HIPAA compliant. You can’t do it.
Also, with both General Durable and Healthcare Powers of Attorney you also want to think who your back-ups are to come in if your primary appointed individual is unable to fulfill that duty.
So, we are rounding second and headed to third base. Third base is Living Wills.
It is horribly misnamed because it’s not really about living and it’s not about a Will, such as passing property. The actual name that I like to refer to it as, is a ‘Declaration for a desire for a natural death.’ That is where you can take the guilt-ridden decision, and say, ‘I know I have a healthcare power of attorney who is my wife or daughter, but I want to make the decision if I am terminal, incurable, brain death has occurred, or that end of life situation, it is okay to let me go. I go ahead and release from liability my healthcare agent and perhaps the facility and doctors who are following my wishes.’
I think it is still important to keep the human element between a Healthcare Power of Attorney and Living Will, which is the ability for the Healthcare Power of Attorney to step up and say, hey wait a second, I know mom or dad better than you, we are going to wait a couple of days.
So, if we’re playing cards and Hayden has the Healthcare Power of Attorney and I have the Living Will, she can trump me. It is not just a robotic cold document. A Living Will is probably one of the most important documents you ever sign for the most important decision you’ll ever make in your life. It is important to have these things in place.
Okay, we have rounded third and are heading home. Home plate is the Will. It is the fourth foundational document. So, what does a Will do?
HS: A Will designates who will receive the things you own when you pass that you have listed.
GM: It does. Now, we have bagged on Wills and trashed Wills and said they’re just insurance, and I think they are like insurance. I think it is better to set your property up to pass outside of the Will automatically. The financial industry figured this out a long time ago. On a life insurance policy, would you want to put your estate as the beneficiary?
HS: No, I’ll put my children and grandchildren.
GM: Exactly, so why wouldn’t you set up the rest of your property to pass that way? Your land, your home, protect it and pass it outside your Will. Plus, if something passes through a Will, it is subject to probate, to liens coming in. I think a Will is still important to have in place for insurance purposes, so, if there is something that doesn’t pass automatically, something you didn’t think of, setting up something that was not set up properly in the past, then the Will picks it up and gives it to the person you wanted it to go to.
Those are my feelings about Wills and the probate process. It’s more of an insurance to get things where you wanted them to go but it’s not a guarantee. It’s not a guarantee because of the looming numbers of seventy percent (70%) of everyone over sixty five years who may need some form of long term care, assisted living, in-home or nursing home care. This eats up a lot of savings. Sometimes people lose everything they own in the last few years of their life because of the costs of that care.
So, to protect your assets like your home, what would be a home run?
HS: A Ladybird Deed.
GM: That’s right, a Ladybird Deed. So, what is a Ladybird Deed or Advanced Life Estate deed or Enhanced Life Estate Deed as it’s sometimes called?
HS: A Ladybird Deed is a type of life estate deed. It takes the home and designates who it will go to when you pass away but you maintain control of it during your lifetime, and avoids the Medicaid look back period and spend down.
GM: So, you have a look back period for some benefits before Medicaid will come in and offer a healthcare benefit for say, nursing home or assisted living care. The look back is five (5) years for nursing home, three (3) years for assisted living care. A Ladybird Deed can be placed on your house right now under North Carolina policy and you can apply for benefits next month and get them, and they could not touch the house. It avoids the look back periods. That would be the home run.
That foundational package, those four bases, plus the home run would be a great package to put in place for most seniors in North Carolina. It would protect your home and save it for your loved ones. You can read all about this in my book ‘Saving the Farm, a guide to the legal maze of aging in America.’
If you have any questions you can contact my office at 704–259–7040.
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street
Shelby, NC 28150