March 2024 | Issue 49..............................................................Click to View Online

Learn Estate Planning Information in March from Roberson Law OSBA Certified Estate Planning Specialists

Monday, March 18 & Wednesday, March 20; University of Dayton at Daniel Curran Place located at 1700 S Patterson Blvd

• Kristina Rainer teaches in the estate planning section from 7:30 p.m. - 8:30 p.m.

REGISTRATION: Call 937-229-2347; to enroll online: https://udayton.eventsair.com/fssr/winter24reg

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Long Term Care Panel Discussion

Thursday, March 7; Hilton Garden Inn in Beavercreek at 3520 Pentagon Park Blvd

• Nancy Roberson participates in the panel discussion about Long Term Care from 7:00 p.m. to 8:30 p.m.

REGISTRATION: https://www.askrafi.com/events/long-term-care-panel-discussion

Which choice should you make:

Open a Guardianship or just get a POA?

We get a lot of calls from people who think they need to get a guardianship over their loved one for a variety of reasons spanning from financial irresponsibility to possible self-harm to elder abuse. Deciding between a guardianship or a general durable power of attorney (GDPOA) can seem like a tough choice. When faced with this decision, it helps to better understand the differences between the two.

A guardianship is considered more restrictive than a GDPOA--not just more restrictive for the proposed ward, but for the guardian as well. The probate court prefers the least-restrictive legal arrangement for an individual, so, in order to be appointed guardian, one needs to obtain a physician's statement regarding the proposed ward stating that a guardianship is necessary. In addition, guardians will need to complete guardian classes, and if serving as guardian over the ward's finances (aka guardian of the estate), the guardian will need to be bonded, which requires the guardian to pass a credit check.

Guardians have annual reporting requirements to the probate court. Guardians of the estate also have to request approval from the court to spend the ward’s money. These reports and requests become public records, so privacy is lost in a guardianship.

Guardianships can be contested, even by the proposed ward, and they tend to get expensive due to court costs, filing charges, and attorney fees. With a GDPOA, you have the opportunity to select the person who you want to be in charge of your affairs rather than having the court decide for you. A GDPOA is also very inexpensive to prepare compared to the thousands of dollars required to set up and continually maintain a guardianship.

It is important to get a complete estate plan prepared, which includes the preparation of a GDPOA. You can save time, money, and stress, and the relationship will stay private, by planning in advance for a situation that may require another person to step in and make medical and financial decisions for you. 

We encourage you to read the article that Nancy Roberson also wrote in this newsletter titled, "Power of Attorney Potpourri" about how to correctly execute and use a GDPOA, so that both the Agent and the Client are protected when a GDPOA is used.

Power of Attorney Potpourri

by Nancy Roberson, Attorney at Law

It's that time of year again when we nag you about checking the age of your general durable power of attorney (GDPOA). As a reminder, Ohio law does not require any company or person to accept a power of attorney (POA). One of the reasons that financial institutions give for refusing a POA is its age. Our office has established a guideline of five years old, so if your POA is five years old or older, we suggest that you refresh it.

In addition to our concern about the age of your GDPOA, it should also give your agent authority to deal with your digital assets. This is especially important if you use email, do online banking, or use social media accounts.

We continue to be concerned about how clients add other people's names to their bank accounts. Meaning well, a parent suggests that a child's name be added to the account to enable the child to sign checks. Although a GDPOA arrangement was intended, the bank adds the child's name to the account as a joint owner, which can cause all kinds of problems if there are other children or the child/joint owner has marital or credit problems. Please call us for direction if you are thinking of adding anyone's name to a bank account because there can be serious legal consequences if you do.

We suggest that if someone names you as an agent in a POA and you are beginning to actively serve, you schedule a consultation with us about how to serve as that person's agent. This is a serious responsibility that, again, can result in serious legal consequences if you make mistakes or act inappropriately, because you have a fiduciary responsibility to act in the best interests of only the person you are serving. (That person is called the "principal.") For example, we don't want you to become liable for another person's debts or for changing the beneficiaries or ownership on the principal's accounts. Also, we suggest that you keep a record of your activities when serving as an agent under a POA to substantiate whatever fees or reimbursements for costs you receive. Also, always request copies of any paperwork that you sign, and remember, you should put the designation "POA" or "Attorney in Fact" after your name when signing for the principal. NEVER sign only your name.

Finally, never attempt to change anyone's estate planning documents or ownership of their assets with a POA. If changes seem necessary, call us for advice.

Estate Planning with Beneficiary Designations

by Nancy Roberson, Attorney at Law

Many of our clients add beneficiaries to their financial accounts so that the accounts will be directly distributed to the beneficiaries when the clients die. While beneficiary designations can be a cheap and easy way to avoid probate, there are pitfalls to this approach, such as:

1. Sometimes people who have several children designate one child as the beneficiary, imposing a moral obligation on that child to share the proceeds with the other children. What if the one beneficiary can't or won't share? What if that beneficiary is supposed to pay for your funeral, but doesn't? What if the proceeds in the account create gift or income tax consequences for the beneficiary?

2. What if you designate all of your children as beneficiaries and one of your children dies? Do you know what happens to the deceased child's share? I can't give you an automatic answer because financial institutions differ on how they treat a predeceased beneficiary, and Ohio law does not resolve this issue. The form you completed controls what happens to the deceased child's share. Do you know what that form says? Did you get a photocopy from the financial institution?

3. What if you completed beneficiary forms, you did not get a copy of the forms, and the bank lost the beneficiary forms? This has happened to several of our clients. The banks involved insisted that the accounts be probated instead of being paid to the alleged beneficiaries. ALWAYS insist upon getting copies of any beneficiary forms that you sign at any financial institution, and keep those copies with your estate planning documents. (My experience is that financial institutions do not give you copies of the forms unless you ask for them.)

4. What if you designated beneficiaries on all of your accounts, and none of the beneficiaries want to share in the costs of your funeral or your final bills? We have two of these cases in our office right now.

5. What if the financial institution did not properly complete the beneficiary forms, but you signed them? NEVER presume that accounts are properly set up. Ask your lawyer (one of us) to review this paperwork.

6. You have 4 certificates of deposit (CD) at a bank and 4 children. You designated one child as the beneficiary of each CD. Your agent under your power of attorney cashes one of your CDs to pay a bill for you. That child/beneficiary has just lost part of his or her inheritance.

I could go on and on with questions and reasons why your estate plan should not depend solely upon beneficiary designations. As your attorney, I much prefer that you have your accounts be distributed through your probate estate or revocable living trust...yes, I did say through probate, which is not worse than a root canal despite what you may read on Google.

Elder Law Update: What You Should Know About Elder Abuse and Adult Protective Services

We get a good number of calls in our office about elder abuse or elder neglect. Many times, the call comes from a professional who calls about a client of his or hers who appears to be in distress and has no family or friends to assist. When we get these calls, we almost always refer the person to Adult Protective Services (APS) since we do not practice litigation or handle civil cases at our office; therefore, we are not equipped to handle any cases that involve elder neglect, abuse, or fraud.

APS is a government agency run by each county that exists to provide help to defenseless older adults who have no one to assist them. A caller's name is always kept confidential, and APS has a duty to investigate every call that is made to them. The number to APS in Montgomery County is 937.225.4906 and the number to APS in Greene County is 937.562.6000.

For claims of abuse or neglect within a long-term care facility, contact Long-Term Care Ombudsman Lawrence Wilkins at the Regional Ombudsman Office.

For a list of answers to other frequently asked questions about APS, please read an article published by the Ohio Bar Association.

Do Not Call Registry for Deceased Individuals (and Others)

The Federal Trade Commission cites DMAchoice as a reputable option for managing unsolicited mail, and the DMAchoice site offers the no-cost option to stop mail from being sent to someone who’s deceased (Deceased Do Not Contact List) or to a dependent in your care (Do Not Contact for Caretakers List). Registration for the Caretakers List will last for 10 years. 

If you are not registering for a deceased individual and would like to decide what types of mail you do and don’t want from marketers yourself, register at the Direct Marketing Association’s (DMA) consumer website DMAchoice.org, and choose what catalogs, magazine offers, and other mail you want to get. DMAchoice will stop most, but not all, promotional mail. You’ll have to pay a $4 processing fee, and your registration will last for 10 years. 

DMAchoice.org also has an Email Preference Service that lets you get less unsolicited commercial email. Registration is free and will last for six years. To learn more about what options you have for dealing with unwanted email, read this article on email spam.

National Slam the Scam Day

On March 7, 2024, "National Slam the Scam Day," and throughout the year, the Social Security administration gives tools to recognize Social Security-related scams and stop scammers from stealing your money and personal information. 

Help protect your loved ones and people in your community this Slam the Scam Day by: 

• Educating them about government imposter scams. Let them know they shouldn’t be embarrassed to report if they shared personal information or suffered a financial loss. It is important to report the scam as quickly as possible. 
• Sharing our Scam Alert fact sheet and helping educate others about how to protect themselves. 

Report Social Security-related scams to the Social Security Office of the Inspector General (OIG). Visit www.ssa.gov/scam for more information.

Have you received a survey from Amy Cary and are wondering if it is legit? Yes, it is! 

Help us. Help others. 

In an effort to improve our systems and processes and give you the best service possible, we are starting a survey system that gives clients the opportunity to provide feedback. So, if you receive an email from Amy Cary asking you to complete a survey, please know that Amy is not a scammer, and her email is a legitimate request for feedback from the survey company Levitate. Thank you for helping us in our efforts to continue to maintain the excellent, high standards that have been the backbone of our reputation for over 40 years!

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