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

Episode · 4 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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For more senior resources and to sign up to the newsletter please visit:

Topics discussed:

- Power of attorney

- Guardianship

- Estate planning

- Advanced directives

- Probate / trusts

- Preparing your will

Welcome to aging and stall with me,larry williams, i'm an optimist by nature, and i believe you can followyour dreams at any age. My grandmother's journey with dementiaignited a passion and meta work with seniors. I've spent the past thirteenyears learning about seniors and aging. In my mid s, i followed my own dreamand 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 dinoseach week to meet senior living experts and inspiration seniors who arefollowing their dreams. The fact is, we're all aging, so why not do it instyle? I welcome to another episode of agingand stall with larry williams, so glad you're here today. Our topic is allabout caring for our aging loved ones and how it can be complicated andconfusing when we get into sort of like the legal terminology, and it comes upa lot like what is a power of attorney and what's a you know, a living willwhat durable power of attorney all these different legal terms that comeup and people are confused about it. So i have the perfect guest today we havekelly walling who is on and she is an attorney here in dallas. She was bornand raised here and she practices probate, a state planning, guardianshipand business law, both drafting documents and handling disputes. Shehas two kids andrew who's in college and catherine, his thirteen and shestarts on the board of directors of justice for children, a nationalorganization for abused and neglected kids. So thank you kelly, i'm so gladyou're here. Thank you for having me. So how did you decide to be a lawyer? Ialways like to ask people how they chose their careers. My dad was alawyer a really starting. As soon as i could walk, i would go with him to theoffice as much as he would. Let me and i went around the court house with hima lot. I was allowed to sit in the judge's chairs because i was there sooften, and i everybody knew me by name and then i spent a lot of time workingin his office, which was the funnest legal office. I've ever seen, and the purpose that he had was so pureand he made it so fun and learning the keeping abreast of the field wascritical to him, and so i got to see it with with great ethics and graindevotion and great happiness and great fun, and so those are the things thatdrew me to this profession. That's so wonderful, and you know i've known youfor a while, and i did not know that. So i'm glad i asked that question and so what you do you work withseniors a lot. You do the estate planning and you post and publish a lotof really interesting articles. All about that, which is why i just knew i had to haveyou 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. There are twodifferent kinds of powers of attorney... texas: one is called the statutory,durable power of attorney, which is also known as the financial power ofattorney, and then the other one is the medical power of attorney and both ofthese become active upon your incapacity. The financial power ofattorney gives the person you choose the right to make all your financialdecisions, including changing your accounts. You know emptying youraccounts and putting them in different investment funds. It's a veryresponsible position that somebody takes on your behalf and you need to dothose before you are incapacitated because onceyou'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 youbecome 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 tochance or the doctor. You know you really would like to leave these twothings up to people who love you and have your best interest at heart andwho know you and know what you would like to have done and both of those documents will keepyou out of a guardianship. I know everybody has heard of a guardianship.We use them often for age, people who are incapacitated and then also forpeople with disabilities who might be younger. Those are the two most commonsituations where you need them and guardianships are very expensive. They are very time consuming. They aredifficult to get. They require a lot of lawyer participation, they're easy tomess up the our lawyers like to say that if you you do a guardianship, keepall of your receipts and down to every last one, because you're constantlyreporting to the judge, who has discretion over what you can and cannotdo, and it's just. I consider it to be alast- ditch option, and it's really, if you can avoid doing a guardianship bydoing these two powers of attorney you're in much better shape in justabout any way. You can think of yeah, that's great to know. So when do youadvise people to go ahead and have that set up? Probably you know younger thanwe would think just the senior right. Of course i meana lot of people, don't do it until their seniors, but i did mind i didmine three weeks after i had my first child because all of a sudden i realized ihad a child. You know things mattered to somebody and i needed to beresponsible for this child, but but a lot of people don't do that until theyare getting older and having some kind...

...of health events. My personal opinion is that it is nevertoo soon because you've disabled at any point in life for one reason or anotheryeah, that's a really good point. So a lot of times when i'm talking to afamily, usually it's an adult child and say you know the dad has dementia orwhatever you know. If they don't have power of attorney. That can be aproblem. They can't get in there and find out what's going on with dad. Soat that point you know if someone has dimension- and i share this with you-you know. Sometimes we have people who dad has dementia he's at home and theycan't move them forward. They know he's not in a safe environment, but theyfeel like they can't do anything because they're going against hiswishes. What can they do in that type of situation? We they're alreadymentally capacitated in some form. So what can they do? They can go, get aguardian, shot, okay and really the and that's about it. So that are theseother two documents, the medical and financial powers of attorney- are socritical. So do those now before there's an issue? Definitely, okay, iguess what's kind of involved with getting the power of attorney, it'sjust pretty much a legal document and you name the people or the person thatyou want to be in charge, correct, correct. That is correct, and usuallynot only are you going to have that first person that you choose to be youragent, but you would want to choose an alternate as well. Usually i do twoalternates for people and i feel more comfortable making sure that, ifsomething happens to your first or second, you've still got somebody. Ifyou don't have that many people don't worry about it. You know. If you onlyhave one that's better than none it's just if you happen to have othersaround that, you would feel comfortable having it again it. You know just itplans for another contingency that way. Okay, and then we hear the term living will alot. What is a living will, okay, that that term makes me crazy, becauseit has the word will in it, you know, and so, and it has a word living in it,which is when people make their regular wills. So it's a little bit confusing.It's also known as an advance directive, it's a form of advance directive andwhat it does is that it deals with your medical health. When you are close todeath, it is about life, sustaining measures, what you do and don't want.Typically, it comes into effect when you have your terminal, basic okay, andwhen we talk about a state planning. What exactly like? What does that cover?Like all documents, if someone want it to be completely covered, have theirstate they want to? You know they want to plan for everything, so their kidsaren't having to deal with making decisions for them. What all does thatencompass? Okay? Well, that would be a will and then you would have medicalpower of attorney and you would have a statutory, durable power of attorney,which is the financial one, and then... would want a hip of release so thatwhoever has your agency and your medical power of attorney can actuallylook at your records, and that makes their job a lot easier and then anadvance directive or living will. There are other documents, but those are theones that as a matter of course, you need to keep together and do all of atone time, okay, good to know, and that's something everyone should do nomatter your age. If, especially like you said, if you're, if you just haveyour first child, i mean that's kind of when you're really thinking about it, but for anyone would be important to dothose documents. Another thing that comes up- i had this happen with thefamily not long ago, where they did not have power of attorney. I believe thehusband did, but the wife he was not making good decisions for her. Theywere covering up for the family. They had no idea how poorly she was doingand they went it was during ovid, so they weren't able to get in and take alook and every time they call. There was an excuse why she couldn't get onthe phone well, when they finally got over there to see she was completelybedridden. She was in a very bad state, she had wound soars and everything itwas. It was just awful well, they had to get call aps to get involved andthey moved her into a nursing home. So, in a case like that, i guess what'sgoing on because they didn't have. The daughter did not have power of attorneyas that, her only recourse and something you know that type of asituation. She can go to court and explain, what's happening and challengethe power of attorney and ask that it be removed and asked that she besubstituted or that somebody else be substituted, okay and port. Okay, or ina case you know something like that. If no one had power of attorney at thatpoint, would they gain guardianship? That would be their only recourse? Yes,okay. Yes, so i cross paths recently with a gentleman who shares my passionfor seniors. His name is jimmy zola and he shared with me that, after both ofhis grandparents had moved into a singer care community, his family'sworld was just turned upside down, as they became caregivers over night. Asyou know, being a caregiver to someone close to. You is often overwhelming andthere's just so much for you to manage, even with the support of living in thesenior care community like making sure your loved one is all the products theyneed and keeping them stocked when stuff runs out. Well, jimmy have thatproblem too, and he was scrolling through all of these product reviewsacross the internet and like most of us in the sandwich generation. We don'thave enough hours in the day, so it can end up being way too time consuming andfrustrating he wished. There was a simpler way to shop for hisgrandparents and then, of course, the pandemic head, which preventedvisitation to the communities, making this process even more difficult. Sojimmy decided to launch his own business to solve this problem. Hefound it joe and bella to make shopping for older adults simple. They carryeverything from comfy clothes to...

...creative gifts. They even have toilettrees that can be automatically reordered in tech. That makes caregiving easier and what i love- and i know y'all will love. This too, is thateach and every product and jo imbelle has been carefully selected by care.Giving experts jimmy is giving us an exclusive offer for the listeners ofthis podcast. You can use promo codes style to receive ten per cent off yourfirst purchase at joe and bellecombe. That's cold s, t y l e style for tenper cent off at joe and bellaconda know, and then we also hear- and i know thiskild go into a really long talk, but i mean what is like probat when we hearthose terms. What exactly does does that mean that happens when somebodydies having property of some kind or another? What you do is you go to courtand you ask the court to help you figure out what all that property is,what all the debts are: pay off, that depths, that need pain, distribute therest of the assets to the beneficiaries and then just close it in okay, so thatit's legally a closed state. Okay and then, if you have a will and have allyour estate planning done, do you still go to probate or no? Yes, you do. Okay, there are ways toavoid probate or to minimize it significantly, andoften trusts are used for that purpose. There are also ways to transferresidential real estate outside of a will or a trust. A lot of peopletransfer all their assets into non probate is state assets, and by that imean that some of these, these assets don't go through a will, even if youhave a will and those are specific properties like life, insurance and retirement benefits.Those are not considered to be part of your probed estate, so that stuff, thecourt 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, andit has a status with the irs. It's recognized as an entity with the irsand what it is. Is you put your asset or assets into the trust for the trustto hold? You remain the beneficiary, so you get the benefit of ownershipwhatever that might be, but you have a trustee who is in a fiduciaryrelationship who is managing the property and deciding how and when todistribute 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 knownot, i guess not get taxed or sae as much as possible. Well, you know really the the trustsare becoming more and more popular oklahoma. For example, almost you knowit's very, very common. A lot of people...

...up there use them. We have been areluctant state, so we're not fast in coming to the process, but we have infact 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 the ownershipinterest transfer at the time of your death and and profit can take a while.So you know people get get stuck paying house payments and motor vehiclepayments on assets that have debts that aren't anybodies. Yet you know, and andi've got a man right now whose mother just passed away and she doesn't haveanything in trust, so he's paying her house payment, he's paying her motorvehicle insurance payments, he's paying her car payment and it with those twospecific assets. The house in the car you can actually transfer those withoutgoing through probate. Those are, if it documents we can also do for you andit's just the more you put in the trust, the less you have to deal with andprobate, and the advantage of that is that you get to it much faster m. Okay.So if you had just this kind of made me think of an example, but if you had acouple an elderly couple- and you know they did not do any estate planning,they do not have poa or anything and the husband suddenly passes away. Whathappens you know for the wife? Does something happen with her accounts, imean because she still access the checking accounts. I mean what actuallyhappens. Well, you know it depends on how the account is held and, to some extent, banks do make their owndecisions. The like you're supposed to have one power of attorney- that'saccepted everywhere under the sun, but i would not recommend relying on thatbecause i have seen banks turn them down. So i always encourage people tohave their own conversations with their own bankers and find out exactly like. I was dealing with. U bs theother day and the gentleman who was who was the financial advisor said to me,but we have our own poa form and they're not supposed to they're they'renot supposed to have that, but sometimes they will and you would wantto fill that out in advance to and if you have an account that is held asjoint tenants in common, then that would be a situation whereyou would have access to the kan account because your name is on it. Ifyou are on it as joint tenants with right of survivorship. Not only do youhave access to that account, you have ownership of the entire account. Instead of its being half and half likea marital property, division would be so it just. It depends on a lot offactors. Do you find that a lot of seniors,don't you know, have all this done? Have a state planning done o? How doyou do you find that there's a lot of people who maybe don't do it? Is itlike? You know procrastination or they...

...don't want to think about dying? Isthere you know? What do you see? Well, the there are a lot of people who don'thave it done, and i think it it's partly procrastination.It's a lot of work. You have to you know, get together. What are all yourassets? What are your debts? You know, i think, probably one of the biggestfactors that sloe people down is picking these people to be executive ortrustee or their power to hold their power of attorney. Those are bigdecisions and, and people don't like to to make them yeah. I could see that iknow i was just sitting here thinking. I need to get all this done to so youand are going to need to talk, but then i was thinking who would ipick yeahs people down the most with the people. I've run across yeah andyou know- and i ask that question because you know i'll be completelytransparent. I think we haven't done it and it's procrastination on our part. Iwould say i'll be completely honest there. So so i'm sure i'm in goodcompany sure you are so. Is there anything else that thatyou think that you've seen you know for people especially seniors that theythat would help you know survivors or families when you know seniors havepassed away? Well, i think that, knowing aboutwhat's going on before you get, there is always very helpful and there are alot of wonderful resources online on different topics that are very good. One example would be the aarp they putout a good amount of stuff, and then you know call somebody like me and aski don't charge a fee to explain it and put you in touch with the right groupsto get the right information or just show you an article or or whatever youneed, but that's, i would say, education yeah, absolutely, which iswhy we're doing this podcast, because i know these things come up like i saidall the time, people you know don't know what a poa is why they need tohave it. They have not done this state planning and they just kind of you knowput it off. Maybe everyone, i think, has kind of like a vague idea of whatit is, but maybe didn't know in detail. So i really appreciate you being ontoday to explain all of that. I always like to ask us this questionbecause it's always very interesting, but is there a senior who isinspirational in your life? Oh, yes, i have to say to just not just onebecause of my dad and want to my mom, and i talked about my dad and then mymom is is the other and she's just you know one of those peoplethat i just exudes energy and is inclusive and she is so smart and shewas a teacher and she taught me to love...

...learning just more than just aboutanything else, and she has been my dear friend and mysupporter and my pro motor through my entire life, and i am doing a lot of caring for her witand it is. It is such a gift. I d that did i get the opportunity to give backto her, that's beautiful. I love that and i'm glad that you can be there forher. I think that that's great, we all you know, want to have the opportunityto give back to someone who's taken care of us throughout our life and hasbeen such an inspiration. So i think that's really beautiful. So iappreciate you being on today and, like kelly said, if you have questions youknow just defining what this is or if you're ready to go ahead and do thestate planning, which i am contact kelly and we will have all ofher information available so that you can reach her but she's a greatresource, and i just i love that you explain things so clearly, so it's youtake something that can be confusing and you make it much less confusing. Soi appreciate that about ue. You're. Very welcome an me today, sir. Thankyou for being a guest, and thank you all for listening and we will have allthe contact information and a lot of what we talked about resources andeverything as we always do with the podcast, and you can go to my website.If you have questions and what you know, additional information and it's lauriewilliams dash senior services com. Thanks for joining us and we'll see younext week, bye bye, a.

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