We hope our readers are staying safe, socially distanced and as sane as possible in these interesting times. Like you, we continue to adapt to this new way of living, and our office practices continue to evolve as we try to serve our clients as safely and effectively as possible.
On that note, we remain open, although our “on-site” staff is limited and we are no longer scheduling in person document signings. We have started to implement New York’s remote notarization rules with those clients who have video conference capability, and we are using similar protocols for estate planning documents requiring witnesses.
Our fingers are crossed, but thus far we have been able to serve all of our clients with limited interruption. Right now our primary hope is that our readers and their families stay safe and are able weather the storm with limited damage. But if you get tired of baking bread and cleaning closets, we would like to suggest a few other ways to occupy your time and help get your affairs in order.
In our last issue we discussed the importance of “Advance Directives”: Durable Powers of Attorney and Health Care Proxies. These documents ensure that there is a legally empowered agent to make financial and medical decisions for you in the event you reach a point where you are no longer able to do so. They represent two of the most important estate planning documents that we prepare in our office.
Many of our readers will themselves be appointed to serve as agents under Durable Power of Attorney or Health Care Proxy for a spouse, an aging parent or other friend or relative. Many are serving (or expect to serve) in other “fiduciary” roles as well. They may have been appointed as a Guardian by a court, or might be managing funds as a Trustee. Others may know that they have been named as an Executor in a family member’s estate plan.
Well drafted estate planning documents contemplate the possibility that the person who is selected as fiduciary may be unable or unwilling to serve when the time comes, and so they also list successors or alternates. Now would be a good time to take a closer look at your documents to be sure that someone is named to pick up the ball in the event you become unable to serve as a result of COVID-19 (or any other unexpected circumstance, for that matter).
1. If you are named as a fiduciary in a family member’s estate plan (Trustee, Guardian, Executor, Agent under Power of Attorney or Health Care Proxy), check to see that the document names somebody to serve after you.
2. If you are currently serving as Trustee of a Supplemental Needs Trust (or any other type of trust), check the trust document to be sure that it names someone to serve in your place if you are unable to continue. Most trust documents will include instructions on how a successor is appointed, and may allow you to name that successor now, in anticipation of the point when you can no longer serve.
3. If you are currently serving as a court appointed Guardian, check the Order or Decree to make sure that there is someone who will take your place if you are no longer able to carry out your responsibilities. If not, you can ask the court to designate a successor or standby now, such that in the event something happens to you unexpectedly, that individual or entity has already been approved to serve.
We should note that currently New York courts are only accepting what they consider to be emergency applications for judicial review and involvement. A plain vanilla application for the addition of a successor or standby Guardian would likely not meet this criteria, but we have been using this time to help our clients get their ducks in a row by preparing these petitions in advance. If a currently serving Guardian experiences a sudden change in medical condition that would be considered an emergency, we would move immediately and without delay to have the court confirm the identify of the standby or successor. If not, when the courts open up for normal business we expect to be the first in line to get the standbys and successors in place.
Succession of a Different Type
One more suggestion while we have your attention.
Most of us have life insurance policies, retirement accounts, annuities and other investments which name beneficiaries to receive proceeds upon our death. Pull out those policies and see if you have documentation of your beneficiaries. In fact, the better practice would be to call the company directly and ask them to send you a written confirmation of the current beneficiary (or explain how you can print that information off of the company website).
We are often surprised at how many clients sign Wills and Trusts without taking the time to look at their beneficiary designations. You may have a beautifully drafted Will which leaves everything in trust to your two young children, but if you did not update the beneficiary designation on that old insurance policy to remove your favorite aunt Martha (who you named as beneficiary on the policy before you married and had children), Martha gets the money and your children are out of luck.
This review is even more important for our special needs estate planning clients, as the proceeds of a small insurance policy can wreak havoc on eligibility for many government benefit programs. In these situations the beneficiary designation should direct the payment of proceeds to a well drafted Third Party Supplemental Needs Trust established for the family member with the disability.
Let Us Help You
If you’ve taken a look at your planning documents and can’t figure out whether a successor is named, or if you don’t understand the legalese which explains the process to designate one, or if you’ve discovered that there is no one named to serve as Guardian, Trustee or Executor in your absence, we are happy to review the documents and your options with you. We continue to conduct consultations by phone and video conference, and our staff is fully equipped to work remotely should documents need to be drafted or court papers prepared.
The Power of Potential
In this edition of the Special Needs Estate Planner, we would like to draw your attention to AIM Services, Inc.. For 40 years, AIM Services Inc. has been supporting individuals of diverse abilities. Through community-based services, advocacy and education, AIM’s dedicated professionals support people with intellectual and developmental disabilities in achieving their personal goals and dreams, while promoting a sense of self-confidence and independence. In 2020 AIM will serve over 3,000 individuals and families in eastern New York, from the Canadian border to Long Island.
In January, AIM launched its 2020 Annual Fund Campaign: Keeping Their Dreams Alive. AIM chose that name because it so appropriately describes the work and philosophy at AIM. AIM needs private support to augment what Medicaid will provide so that the people served might truly impart meaning in their lives. This is the real work AIM does: it keeps the dreams of their consumers alive and well, even through crises like the one we are all facing at the moment.
We invite you to visit AIM’s website www.AIMServicesInc.org, learn more about them and how you can help, as we all try to do in whatever way we can.