At this very moment I am in Stamford, CT, for a 3-day meeting with my MasterMind group. It's a wonderful, supportive, diverse group that is helping me to provide even more service and value to you. I can't wait to share with you what comes next!

As I hope you know, for my May 26th radio show, I interviewed Yale Hauptman who has been practicing law for 20 years in Livingston, New Jersey. There was so much information, there wasn't time to cover all the questions so Yale has written out his answers so I can share them with you in this newsletter. Please read on . . .

Until next time, have a great week --

ARTICLE: SOME ELDER LAW ANSWERS FOR YOU

Getting your aging loved one's legal affairs in order is extremely important -- as answer #1 makes very clear. Knowing what to do and when to do it is often the tricky part. So, in addition to the excellent information Yale shared on my May 26th show (http://www.modavox.com/voiceamerica/vshow.aspx?sid=1532), here is more important information.

(Although these answers were written by Yale, nothing in this newsletter should be construed as legal advice. And, as is so often the case, laws and terminology differ from state to state, so be sure to check this information for your state.)

Q: What happens if I haven't signed a power of attorney and/or health care directive and I am no longer competent to sign one?

A: One must be competent to sign a power of attorney or health care directive, meaning they must have the ability to understand what they are signing and indicate that this is what they wish to do. If that capacity no longer exists, then a guardianship is the only alternative. This is a legal proceeding in which court papers must be filed and the proposed guardian usually must appear before a judge. The judge must determine that the person is incompetent and that the proposed guardian is suitable to serve in that capacity. As part of the process, the alleged incompetent person must be examined by physicians who must sign affidavits expressing a medical opinion that the person is incompetent. This can be an expensive and time consuming process. While in some situations a guardianship is a good idea in most cases it results from lack of planning and becomes the only alternative. Keep in mind that the actual process varies from state to state.

Q: What is estate administration and probate and is it something to avoid?

A: Estate administration is the process after one dies of gathering all the assets together, paying the debts and taxes if any, and distributing the remaining assets either according to the will, or if there is none, according to intestacy laws, the laws that each state has passed providing for the manner in which assets are to be distributed when there is no will. Probate is the process of presenting the will to a Surrogate or Judge and getting appointed as executor, the official representative of the estate. In some states probate is time consuming and expensive and involves court intervention. Other states, such as New Jersey, are probate friendly, so probate avoidance, through a living trust (see below) is not necessary. Again, the actual process is dependent upon the state in which you live.

Q: Do you recommend a living trust to avoid probate?

A: Living trusts were especially popular in the 1990's as a way to avoid probate. In some states, such as New York, California and Florida, where probate is time consuming and expensive, placing your assets in a living trust is a way to avoid probate entirely. It does not, however, provide any protection for long term care planning purposes. Typically, it is a revocable trust, meaning assets you put into it you can take back out. This will not provide any long term care planning benefit. Whether a living trust is a good idea depends on what you are trying to accomplish and what state you live in. For example, if you own real estate in a few different states it may make sense to place the property in the living trust to avoid having to deal with probate in each state.

Q: Are estate taxes no longer a concern now that the federal estate tax laws have changed?

A: Over the last 8 years the federal estate tax exemption, that amount which is not subject to federal estate tax, has increased significantly. Next year there will be no federal estate tax unless Congress changes the law (which has been considered). Many people, therefore, assume that they do not need to worry about estate tax at all but this is not necessarily the case for a couple of reasons. While under the current law there will be no federal estate tax next year, in 2011 the current law expires, meaning that estates greater than $1,000,000 will be subject, again, to the tax. Additionally, while many estates don't need to worry about federal tax, there may also be a state estate tax in the state where you live. For example, New Jersey has an estate tax that applies to estates greater than $675,000. In New York the estate tax applies to estates greater than $1,000,000. For this reason, it is important for many people to still consider tax planning for their estates.

And remember, if you're struggling to help your aging loved one, I urge you not to wait for a crisis to develop. Please call me toll-free at (877) AGE-WISE or email me at Barbara@AgeWiseLiving.com for a complimentary "get acquainted" conversation. I'm here to help!

For the past 14 years Yale Hauptman has devoted his time exclusively to the practice of elder and disability law with his wife and law partner in his firm, Hauptman & Hauptman. He is a frequent author and lecturer on elder law topics and also is the host of Elder Law Today Podcast, an audio podcast in the format of a radio show, that addresses topical elder law issues (which can be found at www.elderlawtodaypodcast.com). Yale's law firm website is www.hauptmanlaw.com.

Upcoming Live Seminars

For information about how to attend an AgeWiseLiving seminar and upcoming dates and locations, please go to Seminars.