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In last week’s post, I shared tips for making sure your loved ones will be able to find your estate planning documents when these documents are needed. Issues can also arise when it comes to finding the assets of someone who has passed away. It is common for one spouse to handle finances while the other spouse does not know the details of the assets they own. Often, we also don’t know what assets our parents, grandparents, and other family members own.

Wills are usually drafted broadly and do not list every asset a person owns because the stuff we own on the day we die will be different from what we had the day the will was made. Typically, some things will still be the same, but it’s common to buy and sell vehicles and property, save and spend money, and change banks, insurance policies, or other types of accounts.

Also, although there are search tools for some assets, such as real property, business interests, and vehicles, there is no centralized search tool that lists every asset a person owned.

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You may want a guardian to be appointed for your family member or loved one who has been experiencing memory loss and/or whose decision-making process has been impaired. It’s difficult to see this happen to someone you love, and you may be struggling with how to find the best way to help them. A declaration of incompetence is required for a guardian to be appointed, and determining if someone is at the point of being incompetent to make their own decisions is a complicated process.

When someone becomes unable to make decisions for themself, the court may appoint a “guardian” or “conservator” to make decisions for this person. A guardian is only appointed if a power of attorney or another less restrictive alternative is not in place or is not working.

The standard for being deemed in need of a guardian varies between states, and depending on the state, the standards for a complete guardianship vs. a conservatorship only over finances may be different. In general, someone is determined to require guardianship when they show a lack of capacity to make responsible decisions or decisions in their best interests.

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Elder law and estate planning serve two different but important purposes. While elder law focuses on preserving your wealth and promoting your well-being during your lifetime, estate planning concentrates on what happens after you have passed away.

Elder law planning helps to ensure that seniors can live as long, healthy, and financially secure lives as possible. It involves planning for future medical needs and long-term care. Elder law attorneys can assist you with creating a plan to pay for future care while maintaining your assets or to qualify for Medicaid or other benefits to pay for long-term care. Elder law planning also serves to protect you from elder abuse or exploitation when you get older or become incapacitated. In addition, elder law covers assistance with guardianship and conservatorship.

Unlike elder law which focuses on older individuals, estate planning is for people of every age. Estate planning attorneys help you plan for what will happen to your assets after you die. They use documents such as wills and trusts to ensure your wishes are carried out properly. Estate planning also includes naming a guardian for your children or making plans for the caretaking of your pets. Estate planners can also help you avoid probate and save on estate taxes.

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There are a lot of options in online services to draft estate planning documents, such as wills, trust, durable powers of attorney, and healthcare proxies. These online services can appear to be a very good option for most people. With these options available, is it necessary to use an estate planning attorney?

An effective estate plan combines learning from the past, adapting to the present, and anticipating the future. While these document generators codify learning from the past through processes and procedures and have some elements that adapt to the present, they do not provide a way to anticipate the future in the way that a professional advisor can.

An estate planning attorney can help you to anticipate the cause and effect relationship between the choices you make today and the effect it may have on your future goals and objectives. They can also help you to identify what might prevent you from achieving your objectives, to determine the likelihood of these things happening, and plan for what to do if they occur.

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The Social Security program, in addition to providing retirement benefits, also provides disability payments to those who are unable work because of a physical or mental condition. Unfortunately, the process that applicants (who are often older and poorer than most Americans) have to go through in order to start receiving these benefits can sometimes take years.

According to a new report from the U.S. Government Accountability Office, which is a nonpartisan federal agency, nearly 110,000 people died from 2008 to 2019 while waiting for an appeal after initially being denied Social Security disability benefits.  Additionally, 50,000 people who were waiting for their cases to be resolved filed for bankruptcy between the years of 2014 and 2019.

The median wait time for the appeals process was 506 days last year, and rose as high as 839 days in 2015, according to the U.S. Government Accountability Office.

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Over half of all Americans give money to charity, but many have not been able to take a tax deduction since a 2017 change in the tax laws. However, with the new CARES Act, most American taxpayers will be able to take a tax deduction for charitable giving again. The details are as follows:

Section 2204 of the CARES Act allows eligible individual taxpayers to deduct up to $300 of qualified charitable contributions made during the taxable year.

Only cash donations qualify, so donations such as clothing, stocks, automobiles, or other items cannot be counted toward this. This is also only for taxpayers who take the standard deduction, as the majority do. Those who itemize their deductions cannot take this new $300 deduction.

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During the COVID-19 pandemic, many of us in Illinois are complying with the governor’s stay-at-home order. We are hunkered down in our homes – making only necessary trips for essential matters such as medical treatment, supplies, or perhaps taking a walk to breathe in in some fresh air and soak in some sunshine while maintaining social distancing. We thank and applaud everyone who is doing their part in curbing the spread of this virus.

At this time, some of you may reflect on the “what ifs” of the future. What will happen if you become incapacitated, or worse, if you pass? What if your child has special needs and you wish to preserve assets for the benefit of your child? What if you have minor children? How or who will take care of them and assets for their benefit should you be unable to care for them, or worse, die? Are you able to make or coordinate health care and financial decisions for your spouse, parent or other elder loved one?

Illinois law provides defaults for distributions through probate court proceedings if you were to pass away and a legal process (namely, guardianship) should you become incapacitated. Depending on Illinois law could involve what could be costly court proceedings. Ultimately, the result of the Illinois laws may not reflect your wishes as to the disposition of your assets and/or who will be in charge. A properly executed estate plan sets out your wishes and names the trusted persons you want in charge of your affairs during life and afterward. Estate plan documents can and often include wills, powers of attorney, living wills, and trust documents – such as living trusts, special needs trusts, or asset protection trusts.

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The Center for Disease Control and Prevention (“CDC”) and the Illinois Department of Health (“IDPH”) have set guidelines for healthcare facilities, including nursing homes, and other long-term care facilities amidst the current COVID-19 pandemic we are experiencing. These guidelines include visitor restrictions for the facilities. In a nutshell, if you are not considered an essential healthcare employee or a compassionate care visitor for end of life situations, you are not going to get near one of these facilities until…well we are not sure.

These guidelines have been put in place for the safety of the residents and employees, and understandably so. On the other hand, this guidance is missing clarity. The states (including Illinois) and, in-turn, the facilities are left to interpret what the definition of an essential healthcare employee and a compassionate care visitor means. Is a third-party caregiver an essential healthcare employee? Is being placed in hospice, in and of itself, considered an end of life situation? Based on experience over the past few weeks, the answer is no. It should be noted, though, that there is no real legal authority stating such. We are facing a time where loved ones could pass away alone because a facility did not interpret the guidelines to allow a visitor in such a situation. Seeking the courts guidance on the matter may be necessary. Until then, the facilities are given the freedom and flexibility to interpret the guidelines as they see fit.

What can you do until then? Often times, loved ones of the residents of nursing homes and long-term care facilities provide care, love, and encouragement to them. During this time, more than ever, this encouragement and love is essential to the resident’s well-being. If you have a loved one in a facility, what can you do during this critical time? Technology has allowed us to connect with people in ways we never could before. Calling and video chatting with loved ones can provide them with the emotional support they need. Just the sound of a loved one’s voice can bring a smile to a resident’s face.  Online games can be played together as well. While we are getting back to the basics during this time, writing a good old fashioned letter is a great option as well.

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Creating an estate plan is an important and challenging decision for all families. Often, one of the biggest initial obstacles is discussing your own death or the death of a family member. Estate planning is complex and very emotional. Therefore, it’s helpful to understand basics of the estate planning process before approaching a professional.

There are a number of life events that are important times to create or update an estate plan for your family or business. While the timing is different for every person, one should consider what could happen in the event of a substantial life change. These life events include:

  • Getting married.
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Most people don’t want to think about estate planning because they don’t want to think about their own death. Unfortunately, it’s much worse to not prepare for when you’re gone. Because it can be so hard to think about, people tend to want to rush through it as quickly as possible, doing things such as using an online program and answering a few questions and then calling it done. Unless you have a very simple estate and maybe just a single beneficiary, it’s best to not take the path of least resistance. The reality is that estate planning often becomes complicated. There are a lot of things to consider in your estate plan – here is a list of many that might apply to you:

1. The documents that you need

A. Starting with the basics, you need a will to help pass along your belongings and nonretirement assets. Retirement accounts and life insurance both have named beneficiaries and don’t go through your will, so if you change your will, it does not change these beneficiaries on retirement and insurance policies.

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