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

Episode · 6 months 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:

AARP's resources:

To learn more about Estate Planning, Power of Attorney and Kelly Caperton Walling please visit:

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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 followyour dreams at any age. My grandmother's journey with dementia ignited a passion inme to work with seniors. I've spent the past thirteen years learning about seniorsand aging. In my mid S, I followed my own dream and foundat my company, where I use my expertise to help seniors locate housing andresources. On this podcast, we cover all aspects of aging. Joins eachweek 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'mso glad you're here today. Our topic is all about caring for our agingloved ones and how it can be complicated and confusing when we get into sortof like the legal terminology and it comes up a lot like what is apower of attorney and what's a, you know, a living will? What'sdurable power of attorney? All these different legal terms that come up and peopleare confused about it. So I have the perfect guest today. We haveKellie 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 guardianshipand business law, both drafting documents and handling disputes. She has two kids, Andrew Who's in college, and Catherine who is thirteen, and she startson the board of Directors of justice for Children, a National Organization for abusedand 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 alawyer? I always like to ask people how they chose their careers. MyDad was a lawyer and really starting as soon as I could walk, Iwould go with him to the office as much as he would let me andI went around the Court House with him a lot. I was allowed tosit in the judges chairs because I was there so often and I know everybodyknew me by name. And then I've been a lot of time working inhis office, which was the funnest legal office I've ever seen, and thepurpose that he had was so pure and he made it so fun and learningthe keeping breast of the field was critical to him, and so I gotto see it with with great ethics and great devotion and great happiness and greatfun, 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 andI 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 youdo the estate planning and you post and publish a lot of really interesting articlesall about that, which is why I just knew I how to have youon the show. So let's kind of start off. What is power ofattorney? 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 asthe financial power of attorney, and then the other one is the medical powerof attorney, and both of these become active upon your incapacity. The financialpower of attorney gives the person you choose the right to make all your financialdecisions, including changing your accounts, you know, emptying your accounts and puttingthem in different investment funds. It's a very responsible position that somebody takes onyour behalf, and you need to do those before you are incapacitated, becauseonce you're incapacitated you don't have the competency to do them, and in themedical power of attorney is the same thing, but it is done to allow someperson the ability to make your medical decisions on your behalf when you becomeincompetent 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 tochance or the doctor. You know. You really would like to leave thesetwo things up to people who'd love you and have your best interest at heartand who know you and know what you would like to have done. Andboth of those documents will keep you out of a guardianship. I know everybodyhas heard of a guardianship. will use them often for age people who areincapacitated and then also for people with disabilities who might be younger. Those arethe two most common situations where you need them, and guardianships are very expensive, they are very time consuming, they are difficult to get, they requirea 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 ofyour 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 justI consider it to be a last ditch option and it's really if you canavoid doing a guardianship by doing these two powers of attorney, you're in muchbetter shape in just about any way you can think of. Yeah, that'sgreat to know. So when do you advise people to go ahead and havethat set up? Probably, you know, younger than we would think. Yeah, just a senior right, of course. I mean a lot ofpeople don't do it until they're seniors. But I didn't mind. I didmind three weeks after I had my first child, because all of a suddenI realized I had a child. You know, thanks mattered to somebody andI needed to be responsible for this child. But but a lot of people don'tdo 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 atany point in life for one reason or another. Yeah, that's a reallygood 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 dementiaor 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'sgoing on with Dad. So at that point, you know, if someonehas dementia, and I share this with you, you know, sometimes wehave people who dad has dementia, he's at home and they can't move themforward. They know he's not in a safe environment, but they feel likethey can't do anything because they're going against his wishes. What can they doin that type of situation where there already mentally capacitated in some form? Sowhat can they do? They can go get a guardianship, okay, andreally 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 thosenow before there's an issue. Definitely. Okay, I guess what's kind ofinvolved with getting the power of attorney. It's just pretty much a legal documentand you name the people or the person that you want to be incharge. Correct, correct, that is correct. And usually not only areyou 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 twoalternates for people and I feel more comfortable making sure that if something happens toyour 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 betterthan none. It's just if you happen to have others around that you wouldfeel comfortable having it again. It, you know, just plans for anothercontingency. That way, okay. And then we hear the term living willa lot. What is a living will? Okay, that that term makes mecrazy because it has the word will in it, you know, andand so, and it has word living and it, which is when peoplemake their regular wills. So it's a little bit confusing. It's also knownas an advanced directive. It's a form of advance directive and what it doesis 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. Andwhen we talk about estate planning, what exactly like? What does that cover? Like all documents of someone want it to be completely covered. have theirestate. They want to you know, they want to plan for everything sotheir kids aren't having to deal with making decisions for them. What all doesthat encompass? Okay, well, that would be a will, and thenyou would have medical power of attorney and you would have a statutory durable powerof attorney, which is the financial one,...

...and then you would want a hipof release so that whomever has your agency and your medical power of attorneycan 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 thoseare the ones that, as a matter of course, you need tokeep 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 anyonewould be important to do those documents. Another thing that comes up. Ihad. This happened with the family not long ago where they did not havepower of attorney. I believe the husband did, but the wife he wasnot making good decisions for her. They were covering up for the family.They had no idea how poorly she was doing. And they went. Itwas during covid so they weren't able to get in and take a look andevery 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 completelybedridden, she had. was in a very bad state. She had wound, swords and everything. It was just awful. Well, they had toget 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. Isthat her only recourse and something you know that type of a situation, shecan go to court and explain what's happening and challenge the power of attorney andasked that it be removed and asked that she be substituted or that somebody elsebe substituted. Okay and okay. Or in a case you know something likethat. If no one had power of attorney at that point, would theygain 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 bothof his grandparents had moved into a senior care community, his family's world wasjust turned upside down as they became caregivers overnight. As you know, beinga caregiver to someone close to you is often overwhelming and there's just so muchfor you to manage, even with the support of living in a senior carecommunity. Lie Ake making sure your loved one is all the products they needand 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 Internetand, like most of us in the sandwich generation, we don't have enoughhours in the day, so it can end up being way too time consumingand frustrating. He wished there was a simpler way to shop for his grandparents. And then, of course, the pandemic head which prevented visitation to thecommunities making this process even more difficult. So Jimmy decide to launch his ownbusiness to solve this problem. He found it Joe and Bella, to makeshopping 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 makescaregiving easier. And what I love, and I know y'all would love thistoo, is that each and every product on Joe and Bella has been carefullyselected by caregiving experts. Jimmy is giving us an exclusive offer for the listenersof this podcast. You can use Promo codes style to receive ten percent offyour first purchase at Joe and Bellacom. That's code style style for ten percentoff at Joe and Bellacom. Okay, good to know. And then wealso hear, and I know this could go into a really long talk,but I mean, what is like probate when we hear those terms. Whatexactly does does that mean? That happens when somebody dies having property of somekind here and other. What you do is you go to court and youask the court to help you figure out what all that property is. Whatall the debts are payoff that debts that need pain, distribute the rest ofthe assets to the beneficiaries and then just close it down, okay, sothat it's legally a closed estate. Okay. And then, if you have awill and have all your estate planning done, do you still go toprobate or no? Yes, you do go okay. There are ways toavoid probate or to minimize it significantly, and often trusts are used for thatpurpose. There are also ways to transfer residential real estate outside of a willor a trust. A lot of people transfer all their assets into non probateestate assets, and by that I mean that some of these these assets don'tgo through a will, even if you have a will, and those arespecific properties like life insurance and retirement benefits. Those are not considered to be partof your probate estate. So that stuff the court wouldn't deal with.You just deal with the company holding those assets. Okay. And then whatis 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 theIRS, and what it is is you put your asset or assets into thetrust for the trust to hold. You remain the beneficiary, so you getthe benefit of ownership, whatever that might be, but you have a trusteewho is in a fiduciary relationship, who is managing the property and deciding howand 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 ofassets and they're trying to you know, not, I guess, not gettaxed or saying as much as possible. Well, you know, really thethe trusts are becoming more and more popular. Oklahoma, for example, almost youknow, it's very, very common.

A lot of people up there usethem. We have been a reluctant state, so we're not fast incoming to the process, but we have in fact started using them more.And yes, what you do is, you know, if you if youput your stuff in trust, then you don't have to wait to have theownership interest transfer at the time of your death. And and probite can takea while. So people get get stuck paying house payments and motor vehicle paymentson on assets that have debts that aren't anybody's yet. You know, andand I've got a man right now whose mother just passed away and she doesn'thave anything in so he's paying her house payment, he's paying her motor vehicleinsurance 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 haveto deal with in probate, and the advantage of that is that you getto it much faster. HMM. Okay, so if you had just this kindof 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 heraccounts? I mean, cause she still acts as the checking accounts. Imean what actually happens? Well, you know, it depends on how theaccount 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 thesun, but I would not recommend relying on that because I have seen banksturn them down. So I I always encourage people to have their own conversationswith their own bankers and find out exactly. Like I was dealing with ubs theother 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 supposedto. They're in they're not supposed to have that, but sometimes they willand you would want to fill that out in advance too. And if youhave an account that is held as joint tenants in common, then that wouldbe a situation where you would have access to the king account because your nameis on it. If you are on it as joint tenants with right ofsurvivorship, not only do you have access to that account, you have ownershipof the entire account instead of it's being half and half like a marital propertydivision 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 thisdone? How the state planning done, or how do you do you findthat there's a lot of people who maybe don't do it? Is it likeyou know procrastination or they don't want to...

...think about dying. Is there?You know? What do you see? Well, I they there are alot 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 peopledown 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 liketo 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 wasthinking who would I pick flows people down the most with the people I runacross? M Yeah, and you know and ask that question because you knowI'll be completely transparent. I think we haven't done it and it's procrastination onour 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 familieswhen you know seniors have passed away. Well, I think that knowing aboutwhat's going on before you get there. He's always very helpful and there area lot of wonderful resources online on different topics that are very good. Oneexample would be the AA ARP. They put out a good amount of stuffand then, you know, call somebody like me and ask I don't chargea fee to explain it and put you in touch with the right groups toget the right information or just show you an article or or whatever you need. But that's, I would say, education. Yeah, absolutely, whichis 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 aPOA is, why they need to have it. They have not donethis estate planning and they just kind of, you know, put it off.Maybe everyone, I think, has kind of like a vague idea ofwhat it is but maybe didn't know in detail. So I really appreciate youbeing on today to explain all of that. I always like to ask us thisquestion because it's always very interesting. But is there a senior who isinspirational in your life. Oh yes, I have to say to just notjust one, because my dad and wants my mom and I talked about mydad, and then my mom is is the other and she's just, youknow, one of those people that just exudes energy and it's inclusive and sheis so smart and she was a teacher...

...and she taught me to love learningjust more than just about anything else and she has been my dear friend andmy supporter and my promote motor through my entire life and I am doing alot of caring for her and point and it. It is such a giftthat 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. Ithink that that's great. We all, you know, want to have theopportunity to give back to someone who's taken care of us throughout our life andhas been such an inspiration. So I think that's really beautiful. So Iappreciate 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 goahead and do the state planning, which I am contact Kelly and we willhave all of her information available so that you can reach her. But she'sa 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 lessconfusing. 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 listeningand we will have all the contact information and a lot of what we talkedabout resources and everything is we always do with the podcast and you can goto 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 seeyou next week, but bye.

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