Aging in Style with Lori Williams
Aging in Style with Lori Williams

Episode · 1 year ago

048. Understanding Power of Attorney, Living Will and Other Legal Terminology


Probate, power of attorney, advanced directives…there are seemingly countless legal terms that pop up when you’re caring for aging loved ones. Being unable to make sense of it all can also be a barrier to getting your own legal plans in place.
In this episode, attorney Kelly Caperton Walling brings her knowledge of probate court, estate planning, guardianship, and business law to the table. She explains these terms in a friendly, simple, and straightforward way - drawing from her experience drafting documents and handling disputes related to these topics in her own practice.

You’ll learn:

- What is power of attorney? And when should you set it up?

- What can family members do when their loved one is mentally incapacitated?

- What is a living will?

- What’s involved in estate planning?

- What does probate mean?

And more.

Takeaways from this episode:

- If you’ve set up a financial and / or medical power of attorney, someone who loves you and looks out for your best interests can make decisions for your care if you’re unable.

- Without selecting someone as your power of attorney, you could get in a guardianship, which is time-consuming, expensive, and involves legal participation from judges and lawyers.

- Estate planning involves making a will, choosing a power of attorney, having a HIPPA release, and creating an advanced directive (aka ‘living will’).

- ‘Probate’ is the process of managing property when someone dies - figuring out debts, beneficiaries, and more.

- Trusts are a legal vehicle and entity of the IRS where you can deposit assets as the beneficiary, which a trustee would then manage and help distribute according to your terms.

- The more you put in a trust, the less you have to deal with it in probate - and beneficiaries can get to it faster.

Kelly Caperton Walling's website:

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Topics discussed:

- Power of attorney

- Guardianship

- Estate planning

- Advanced directives

- Probate / trusts

- Preparing your will

Welcome to aging in style with me, Laurie Williams. I'm an optimist by nature and I believe you can follow your dreams at any age. My grandmother's journey with dementia ignited a passion in me to work with seniors. I've spent the past thirteen years learning about seniors and aging. In my mid S, I followed my own dream and found at my company, where I use my expertise to help seniors locate housing and resources. On this podcast, we cover all aspects of aging. Joins each week to meet senior living experts and inspirational seniors who are following their dreams. The fact is, we're all aging, so why not do it in style? Hi, welcome to another episode of aging installed with Laurie Williams. I'm so glad you're here today. Our topic is all about caring for our aging loved ones and how it can be complicated and confusing when we get into sort of like the legal terminology and it comes up a lot like what is a power of attorney and what's a, you know, a living will? What's durable power of attorney? All these different legal terms that come up and people are confused about it. So I have the perfect guest today. We have Kellie walling, who is on and she is an attorney here in Dallas. She was born and raised here and she practices probate, a state planning guardianship and business law, both drafting documents and handling disputes. She has two kids, Andrew Who's in college, and Catherine who is thirteen, and she starts on the board of Directors of justice for Children, a National Organization for abused and neglected kids. So thank you, Kelly. I'm so glad you're here. Thank you for having me. So how did you decide to be a lawyer? I always like to ask people how they chose their careers. My Dad was a lawyer and really starting as soon as I could walk, I would go with him to the office as much as he would let me and I went around the Court House with him a lot. I was allowed to sit in the judges chairs because I was there so often and I know everybody knew me by name. And then I've been a lot of time working in his office, which was the funnest legal office I've ever seen, and the purpose that he had was so pure and he made it so fun and learning the keeping breast of the field was critical to him, and so I got to see it with with great ethics and great devotion and great happiness and great fun, and so those are the things that drew me to this profession. That's so wonderful. And I you know, I've known you for a while and I did not know that. So I'm glad I asked that question. And so what you do? You you work with seniors a lot and you do the estate planning and you post and publish a lot of really interesting articles all about that, which is why I just knew I how to have you on the show. So let's kind of start off. What is power of attorney? Let's just kind of define some of those terms. Okay. Well, there are there are two different kinds...

...of powers of attorney in Texas. One is called the statutory durable power of attorney, which is also known as the financial power of attorney, and then the other one is the medical power of attorney, and both of these become active upon your incapacity. The financial power of attorney gives the person you choose the right to make all your financial decisions, including changing your accounts, you know, emptying your accounts and putting them in different investment funds. It's a very responsible position that somebody takes on your behalf, and you need to do those before you are incapacitated, because once you're incapacitated you don't have the competency to do them, and in the medical power of attorney is the same thing, but it is done to allow some person the ability to make your medical decisions on your behalf when you become incompetent and are no longer able to do them. And that's another one that, of course, is very important because you don't want that left up to chance or the doctor. You know. You really would like to leave these two things up to people who'd love you and have your best interest at heart and who know you and know what you would like to have done. And both of those documents will keep you out of a guardianship. I know everybody has heard of a guardianship. will use them often for age people who are incapacitated and then also for people with disabilities who might be younger. Those are the two most common situations where you need them, and guardianships are very expensive, they are very time consuming, they are difficult to get, they require a lot of law your participation. They're easy to mess up the law. Our lawyers like to say that if you do a guardianship, keep all of your receipts down to every last one, because you're constantly reporting to the judge, who has discretion over what you can and cannot do, and it's just I consider it to be a last ditch option and it's really if you can avoid doing a guardianship by doing these two powers of attorney, you're in much better shape in just about any way you can think of. Yeah, that's great to know. So when do you advise people to go ahead and have that set up? Probably, you know, younger than we would think. Yeah, just a senior right, of course. I mean a lot of people don't do it until they're seniors. But I didn't mind. I did mind three weeks after I had my first child, because all of a sudden I realized I had a child. You know, thanks mattered to somebody and I needed to be responsible for this child. But but a lot of people don't do that until they are getting older...

...and having some kind of health events. My personal opinion is that it is never too soon because you disabled at any point in life for one reason or another. Yeah, that's a really good point. So a lot of times when I'm talking to a family, usually it's an adult child, and say, you know, the dad has dementia or whatever. You know, if they don't have power of attorney, that can be a problem. They can't get in there and find out what's going on with Dad. So at that point, you know, if someone has dementia, and I share this with you, you know, sometimes we have people who dad has dementia, he's at home and they can't move them forward. They know he's not in a safe environment, but they feel like they can't do anything because they're going against his wishes. What can they do in that type of situation where there already mentally capacitated in some form? So what can they do? They can go get a guardianship, okay, and really the and that's about it is. So that why these other two documents, the medical and financial powers of attorney, or so critical. So do those now before there's an issue. Definitely. Okay, I guess what's kind of involved with getting the power of attorney. It's just pretty much a legal document and you name the people or the person that you want to be in charge. Correct, correct, that is correct. And usually not only are you going to have that first person that you choose to be your agent, but you would want to choose an alternate as well. Usually I do two alternates for people and I feel more comfortable making sure that if something happens to your first or second you've still got somebody. If you don't have that many people, don't worry about it. If you only have one, that's better than none. It's just if you happen to have others around that you would feel comfortable having it again. It, you know, just plans for another contingency. That way, okay. And then we hear the term living will a lot. What is a living will? Okay, that that term makes me crazy because it has the word will in it, you know, and and so, and it has word living and it, which is when people make their regular wills. So it's a little bit confusing. It's also known as an advanced directive. It's a form of advance directive and what it does is that it deals with your medical health when you are close to death. It is about life sustaining measures, what you do and don't want. Typically, it comes into effect when you have your terminal makes it okay. And when we talk about estate planning, what exactly like? What does that cover? Like all documents of someone want it to be completely covered. have their estate. They want to you know, they want to plan for everything so their kids aren't having to deal with making decisions for them. What all does that encompass? Okay, well, that would be a will, and then you would have medical power of attorney and you would have a statutory durable power of attorney, which is the financial one,...

...and then you would want a hip of release so that whomever has your agency and your medical power of attorney can actually look at your records and that makes their job a lot easier, and then an advanced directive or living will. There are other documents, but those are the ones that, as a matter of course, you need to keep together and do all of at one time. Okay, good to know, and that's something everyone should do, no matter your age. If especially, like you said, if you're if you just have your first child, I mean that's kind of when you're really thinking about it, but for anyone would be important to do those documents. Another thing that comes up. I had. This happened with the family not long ago where they did not have power of attorney. I believe the husband did, but the wife he was not making good decisions for her. They were covering up for the family. They had no idea how poorly she was doing. And they went. It was during covid so they weren't able to get in and take a look and every time they call there was an excuse why she couldn't get on the phone. Well, when they finally got over there to see if she was completely bedridden, she had. was in a very bad state. She had wound, swords and everything. It was just awful. Well, they had to get called APS to get involved and they moved her into a nursing home. So in a case like that, I guess. I guess what's going on. Because they didn't have the daughter did not have power of attorney. Is that her only recourse and something you know that type of a situation, she can go to court and explain what's happening and challenge the power of attorney and asked that it be removed and asked that she be substituted or that somebody else be substituted. Okay and okay. Or in a case you know something like that. If no one had power of attorney at that point, would they gain guardianship? That's would be their only recourse. Yes, okay, yes, so I crossed paths recently with a gentleman who shares my passion for seniors. His name is Jimmy Zolo and he shared with me that, after both of his grandparents had moved into a senior care community, his family's world was just turned upside down as they became caregivers overnight. As you know, being a caregiver to someone close to you is often overwhelming and there's just so much for you to manage, even with the support of living in a senior care community. Lie Ake making sure your loved one is all the products they need and keeping them stocked when stuff runs out. Well, Jimmy had that problem too, and he was scrolling through all of these product reviews across the Internet and, like most of us in the sandwich generation, we don't have enough hours in the day, so it can end up being way too time consuming and frustrating. He wished there was a simpler way to shop for his grandparents. And then, of course, the pandemic head which prevented visitation to the communities making this process even more difficult. So Jimmy decide to launch his own business to solve this problem. He found it Joe and Bella, to make shopping for older adults simple. They carry everything from comfy clothes to creative gifts. They even have toilet trees that can... automatically reordered and tech that makes caregiving easier. And what I love, and I know y'all would love this too, is that each and every product on Joe and Bella has been carefully selected by caregiving experts. Jimmy is giving us an exclusive offer for the listeners of this podcast. You can use Promo codes style to receive ten percent off your first purchase at Joe and Bellacom. That's code style style for ten percent off at Joe and Bellacom. Okay, good to know. And then we also hear, and I know this could go into a really long talk, but I mean, what is like probate when we hear those terms. What exactly does does that mean? That happens when somebody dies having property of some kind here and other. What you do is you go to court and you ask the court to help you figure out what all that property is. What all the debts are payoff that debts that need pain, distribute the rest of the assets to the beneficiaries and then just close it down, okay, so that it's legally a closed estate. Okay. And then, if you have a will and have all your estate planning done, do you still go to probate or no? Yes, you do go okay. There are ways to avoid probate or to minimize it significantly, and often trusts are used for that purpose. There are also ways to transfer residential real estate outside of a will or a trust. A lot of people transfer all their assets into non probate estate assets, and by that I mean that some of these these assets don't go through a will, even if you have a will, and those are specific properties like life insurance and retirement benefits. Those are not considered to be part of your probate estate. So that stuff the court wouldn't deal with. You just deal with the company holding those assets. Okay. And then what is what is a trust exactly? Trust is a legal vehicle, basically, and it has status with the IRS. It's recognized as an entity with the IRS, and what it is is you put your asset or assets into the trust for the trust to hold. You remain the beneficiary, so you get the benefit of ownership, whatever that might be, but you have a trustee who is in a fiduciary relationship, who is managing the property and deciding how and when to distribute it according to the terms of the trust. Okay, people choose a trust. Do they do that if they have a lot of assets and they're trying to you know, not, I guess, not get taxed or saying as much as possible. Well, you know, really the the trusts are becoming more and more popular. Oklahoma, for example, almost you know, it's very, very common.

A lot of people up there use them. We have been a reluctant state, so we're not fast in coming to the process, but we have in fact started using them more. And yes, what you do is, you know, if you if you put your stuff in trust, then you don't have to wait to have the ownership interest transfer at the time of your death. And and probite can take a while. So people get get stuck paying house payments and motor vehicle payments on on assets that have debts that aren't anybody's yet. You know, and and I've got a man right now whose mother just passed away and she doesn't have anything in so he's paying her house payment, he's paying her motor vehicle insurance payments, he's paying her car payment and with those two specific assets, the house in the cars, you can actually transfer those without going through probate. Those are, if it, documents we can also do for you, and it's just the more you put in the trust, the less you have to deal with in probate, and the advantage of that is that you get to it much faster. HMM. Okay, so if you had just this kind of made me think of an example. But if you had a couple, an elderly couple, and you know they did not do any estate planning, they do not have POA or anything in the husband suddenly passes away, what happens, you know, for the wife? Does something happen with her accounts? I mean, cause she still acts as the checking accounts. I mean what actually happens? Well, you know, it depends on how the account is held and to some extent banks do make their own decisions the like. You're supposed to have one power of attorney. That's accepted everywhere under the sun, but I would not recommend relying on that because I have seen banks turn them down. So I I always encourage people to have their own conversations with their own bankers and find out exactly. Like I was dealing with ubs the other day and the gentleman who was whole it was the financial advisor, said to me what, we have our own POA form and they're not supposed to. They're in they're not supposed to have that, but sometimes they will and you would want to fill that out in advance too. And if you have an account that is held as joint tenants in common, then that would be a situation where you would have access to the king account because your name is on it. If you are on it as joint tenants with right of survivorship, not only do you have access to that account, you have ownership of the entire account instead of it's being half and half like a marital property division would be. So it just it depends on a lot of factors. Do you find that a lot of seniors don't you know, have all this done? How the state planning done, or how do you do you find that there's a lot of people who maybe don't do it? Is it like you know procrastination or they don't want to...

...think about dying. Is there? You know? What do you see? Well, I they there are a lot of people who don't have it done, and I think it's it's partly procrastination. It's a lot of work. You have to, you know, get together. What are all your assets? What are your debts? You know, if I think, probably one of the biggest factors that slows people down is picking these people to be executive or trustee or their power to hold, their power of attorney. Those are big decisions and and people don't like to to make them. Yeah, I could see that. I know. I was just sitting here thinking I need to get all this done too, so you and I are going to need to talk. But then I was thinking who would I pick flows people down the most with the people I run across? M Yeah, and you know and ask that question because you know I'll be completely transparent. I think we haven't done it and it's procrastination on our part, I would say. I'll be completely honest. They're so. So I'm sure I'm in good company. You are. You are so. Is there anything else that that you think that you've seen? You know, for people especially seniors that they that would help you know, survivors or families when you know seniors have passed away. Well, I think that knowing about what's going on before you get there. He's always very helpful and there are a lot of wonderful resources online on different topics that are very good. One example would be the AA ARP. They put out a good amount of stuff and then, you know, call somebody like me and ask I don't charge a fee to explain it and put you in touch with the right groups to get the right information or just show you an article or or whatever you need. But that's, I would say, education. Yeah, absolutely, which is why we're doing this podcast, because I know these things come up, like I said, all the time people, you know, don't know what a POA is, why they need to have it. They have not done this estate planning and they just kind of, you know, put it off. Maybe everyone, I think, has kind of like a vague idea of what it is but maybe didn't know in detail. So I really appreciate you being on today to explain all of that. I always like to ask us this question because it's always very interesting. But is there a senior who is inspirational in your life. Oh yes, I have to say to just not just one, because my dad and wants my mom and I talked about my dad, and then my mom is is the other and she's just, you know, one of those people that just exudes energy and it's inclusive and she is so smart and she was a teacher...

...and she taught me to love learning just more than just about anything else and she has been my dear friend and my supporter and my promote motor through my entire life and I am doing a lot of caring for her and point and it. It is such a gift that did I get the opportunity to give back to her. That's beautiful. I love that and I'm glad that you can be there for her. I think that that's great. We all, you know, want to have the opportunity to give back to someone who's taken care of us throughout our life and has been such an inspiration. So I think that's really beautiful. So I appreciate you being on today and, like Kelly said, if you have questions, you know, just defining what this is or if you're ready to go ahead and do the state planning, which I am contact Kelly and we will have all of her information available so that you can reach her. But she's a great resource and I just I love that you explain things so clearly. So it's you take something that can be confusing and you make it much less confusing. So I appreciate that about you. You're very welcome having me today. Sir. Thank you for being a guest and thank you all for listening and we will have all the contact information and a lot of what we talked about resources and everything is we always do with the podcast and you can go to my website if you have questions and want, you know, additional information, and it's Lori Williams, senior Servicescom thanks for joining us and we'll see you next week, but bye.

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