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Welcome to Healthcare Redefined: Advocating for Aging Adults and Their Families, where we empower families to navigate the complexities of aging and healthcare. Presented by Your Nurse Advocate Consulting, we share real stories, expert advice, and practical tools to help you and your loved ones confidently navigate aging with dignity.
We explore topics like creating collaborative care plans, demystifying Medicare, handling healthcare crises, and preparing for the future. Join us as we transform uncertainty into understanding.
Pam Dunwald: [00:00:00] Well, welcome back to Healthcare Redefined, advocating for aging adults and their families. We're continuing our season two conversations on getting your affairs in order. And because planning ahead can really make a big difference for aging adults and the people who love them.
Linda Kritikos: [00:00:15] That's true. It's very true. And this episode, we're going to talk about some legal and practical pieces families often avoid until they're in the middle of a crisis. Things like estate planning, wills protecting their assets, and real estate issues connected to an aging loved one's estate.
Pam Dunwald: [00:00:33] These topics can really feel overwhelming, but they are really important. Having the right plans and documents in place can really help reduce confusion, protect what matters most, and give your family more of a peace of mind. We're joined today by Pedro Hernandez, an associate attorney who is a mindful real estate and litigation attorney who specializes in complex civil litigation and appellate cases, and Stephen Howitz, associate attorney whose work includes probate trusts, estate planning and family law. Together they're part of the team at Zimmer and Rens LLC, a firm committed to providing exceptional legal services with integrity, excellence and a client centered approach since 2021.
Linda Kritikos: [00:01:19] So before we begin, a quick reminder today's conversation is for educational purposes only. It is not legal advice. Every family and every situation is different. So please reach out to a qualified attorney for guidance based on your specific needs.
Pam Dunwald: [00:01:36] Be sure to check the show notes. We're going to have our resources related to the episode and resources that are shared by our guests today. So Pedro and Stephen, welcome to Healthcare Redefined. We're really glad you're here to be able to share with us your expertise. Thank you both for joining us. And Stephen, if you want to go first, if you could each just take a couple of minutes and just share a little bit about your background for our audience.
Stephen Howitz: [00:02:02] Sure. I've been in practice since 2010, so 16 years now, Marquette Law School graduate. I've always focused on probate and estate planning. There's a little bit of family law and some civil law, but that's mostly what I've been focused on. I was with a small firm for about ten years, then went solo for about five, and now I'm with Zimmer and Rens here, and I head up most of the estate planning that's done. Me and Pedro work together on it, and my goal is to help families find solutions to whatever the problems may be in a cost effective and elegant manner.
Pam Dunwald: [00:02:42] Thank you. Pedro, would you like to share a little bit about yourself?
Pedro Hernandez: [00:02:46] Sure, I'd love to. I've been practicing for about half that time since 2017, so about nine years now. And the majority of my work has been real estate focused. But in addition to that, there was a big need to also know estate planning work, right? Because hand in hand, a lot of generational wealth is held in property and real property and assets. So seeing that need, I also started doing that kind of work, especially for both my English and Spanish speaking clients. And yeah, since then and now at Zimmer and Hanz, working with Steve, part of the goal is helping people be prepared and not caught unawares of what happens, right? Especially after for me, it was after the pandemic that really showed it because people were super caught unaware in 2020 with all these things and just helping people scramble and try to get ahold of these assets really taught me to be preventative and not reactive.
Pam Dunwald: [00:03:53] Which really leads into kind of the first question that we have. So feel free, both of you to chime in or however to share a point. But why do you think estate planning plays such an important part of preparing for aging and for those adult children and caregiving?
Stephen Howitz: [00:04:12] I guess I'll start. Everyone's going to need it. So it's not really a question of 'if', it's a question of 'when' and you can't buy time. So things like powers of attorney for finances or health care are by far the most important documents that you need during your lifetime. That's going to allow somebody to step in or step up. If you can't make those decisions and you need something in place, you know, if you don't have powers of attorney, you're going to need guardianship. That's going to be much longer, much more expensive, time consuming estate planning can be whatever you want to see happen. You really do need help now, and you never know when that's going to hit, a car accident and emergency and illness. Anything can happen at any moment. And you'd rather be protected moving forward and not hindering people who are trying to help you is essentially my goal with practice.
Pam Dunwald: [00:05:10] Pedro, is there anything you want to add to that?
Pedro Hernandez: [00:05:14] I think another thing to note is I think from, from birth to, from birth to passing away, I think there's always a price attached, right? Whether it's paying for medical costs associated with birth, but also there's a bunch of costs with just passing away. I can't put a number to all the folks, both personally and as an attorney, where folks were caught off guard by the share costs, whether it's funeral costs, whether it's going into probate, whether it's not understanding how to access bank accounts afterwards. Um, you know, every stage of our life, unfortunately, has a price to it. So like Steve said, you know, it's a matter of when. So the sooner the better if you are able to.
Pam Dunwald: [00:06:06] Yeah. Thank you for that. And that really leads in again to my next question. Families often misunderstand. Linda and I try to do a lot of education about getting your affairs in order and why it's important to have them in place. Can you share a little bit about why it's really of essence, so to speak, to try and do these ahead of time before a crisis hits?
Stephen Howitz: [00:06:30] Well, if you're medically incompetent, you can't do any of the things we're talking about. So that's a medical determination. Courts rely on that. If a guardianship needed to be sought and you can't go backwards. That's the thing. Attorneys. The one thing we can't buy is time. So starting early, starting and being proactive. If these things matter to you or you have specific wishes or desires, it's important to communicate that in writing or to your agents, depending on what matters to you. But estate planning can change. You can change beneficiaries. You can retitle a house, but if you need help in that moment, you have to have those documents such as powers of attorney in place, or you're really hamstringing the people trying to help you and your family.
Pam Dunwald: [00:07:21] And if either one of you wants to come in and then I'm going to turn it over to Linda. But can you maybe explain to our audience what that guardianship process is? I mean, who is actually making decisions with a guardianship? How does that work?
Pedro Hernandez: [00:07:35] I'll go more general first, and I'll let Steve give more of the details of the process for me. Guardianship, if I had to explain it. Very basic in layman's terms is that the court system is going to try to figure out who is able to make the best decisions for the person who is now medically incompetent, for basically for their best looking out for their best interests. So compare that to a power of attorney, right? It's a matter of something that is a document that could have taken maybe a couple days to do, depending on what information is needed versus now you're in a court process that will probably involve doctors, may involve care, social care workers, things of that nature that will take the span of months. So and in the end, God forbid, you might not be picked as the Guardian. It depends. Right.
Pam Dunwald: [00:08:43] That was a question to me, could a guardian be someone in your family? Or could it be a complete stranger?
Stephen Howitz: [00:08:52] Both depending on the circumstance, but it starts with a doctor's report. So an examining physician's report is the term, and that's represented to the court. That's a medical opinion that says you're incapacitated and can't make either financial or medical decisions for yourself. Then it's a process. So I put it to clients that powers of attorney are the easy way. Guardianships are the hard way. You're going to get the care you need. If you fall and break a hip, you can't just be let out of rehab facility or a care facility, whatever that may be. There's liability there. So if they released you too early and you went home and broke the other hip or rebroke that hip, guess what? Now we're suing them. So there's liability there. And doctors and medical professionals need to do what they need to do to protect people. So the power of attorney really allows for a lot more flexibility. That is somebody you're choosing that is an individual you trust and have communicated with. The court process may be different. It could be an entity, it could be a nonprofit. You might have never even heard of them or know them. And it could be somebody different. Things like felonies or not being able to get a bond or having credit are limiting factors for somebody being a guardian. So the court has to appoint who they feel is in their best interest, and who's going to do the job respectfully and essentially not rob you blind. And that may be more difficult to suss out. And it is going to take months. It can go to trial. It can get you a public defender. It's a very rigorous legal process they need to follow to declare you incompetent. And it's very hard to come back from that. It's very hard to be medically declared re-competent, if you will, for lack of a better descriptor.
Pam Dunwald: [00:10:44] I have a question, in regards to that. And so in the meantime, while this whole court process is going in and going on, who's making decisions for this individual?
Stephen Howitz: [00:10:56] There will be a temporary guardian appointed. So you can request that quickly. Normally that's going to be family. A lot of times it's the care facility. So it's their social worker or somebody working there. But yeah, it may not be somebody you even know, you may not know the party because you're obviously going to be out of it anyway. And so it varies. And it may be somebody you don't know or have never even spoken to, but that's why the POA is so important. You can nip that in the bud and cut that off at the pass. People should take that opportunity and do so.
Pam Dunwald: [00:11:32] Yeah. Linda. Okay. And turn it over to you.
Linda Kritikos: [00:11:36] Okay then. So that's going to lead us right into this next section, which is I want to talk a little bit about wills and trusts and basic estate planning tools. If you guys can keep it very layman oriented. I just wanted to because a lot of people don't understand those terminologies. We do because we're nurses and we work with that. And you guys do because you're attorneys. But some of these people don't even understand. I mean, I had a client that had no idea what POA meant or what it was, or how to even get it or what it was. So when people hear the term estate planning, what does that actually include? I mean, if someone says to you, you need to do some estate planning or we tell them you need to do some estate, what does that actually include?
Pedro Hernandez: [00:12:26] Sure. So estate planning, what I would say is anything that you own, anything that you have, anything that is in your possession, what is your plan for it when you are unable to either make decisions for yourself while you are alive, or for those when you are not here anymore? So that is essentially the broad thing for that. Or also not even just about things that are in your possession. It's also about yourself. What happens to you prior to you leaving this place on this earth and you're not able to make decisions for yourself anymore. These are all questions that you should have a plan for in the estate including both. That whole aspect of law is also about you and your belongings, your property, your asset, but in a way also like what are your goals? What is the future you want to leave behind your legacy? So generally that's what that entails. So that means any real estate, any life insurance policies, any bank accounts, any retirement plans, any dues, bonds, things of that nature, anything that you can put a price to. But also any benefits you would have, whether it's Medicare, whether it's any other government assistance that you might need in the future.
Linda Kritikos: [00:13:57] Okay. So it's in saying that, what is the difference between a will, a trust and other state planning, estate planning documents. What is the difference between will and a trust? And if you could tell us the difference between a revocable and irrevocable trust and what is the difference between a will and a DNR? Because a lot of people think that if they do a DNR, that's their will. That's not necessarily it.
Pedro Hernandez: [00:14:26] No.
Pam Dunwald: [00:14:27] I know we've had to say that same word. No no no no no.
Stephen Howitz: [00:14:31] It's so will a trust. All of these things can take over after you pass. A power of attorney would be for you free during your lifetime. A do not resuscitate as a DNR would be for while you're living. A will is only subject to what is subject to it. And I know that that's a complicated sentence, but what I mean is title to everything matters. So if you've got something that has a beneficiary, something that's jointly titled, something that's terminated on death, or something that is payable on death, that's not subject to a will, that's not subject to a trust, that's not subject to probate, it's subject to whatever you've done with it. So life insurance is common. You could leave that to your kids or your spouse and it goes directly to them. You could also leave things to your estate. So the estate is a process that takes over after you pass away. That's where a will would come into play. If you don't have a will, everything would flow by statute. But again, what is everything? So with advanced planning and estate planning, you determine how you want each of your assets to go, and you take those proactive steps to retitle them and make the changes, the act by the party of naming a beneficiary or going to the trouble of making this a terminates on death deed, something like that, that is compelling in the eyes of the law and courts, because that shows positive intent and very decisive action.
Stephen Howitz: [00:16:01] So those are tough to undo. Those are outside of probate, but a will is essentially a probate process that occurs through the courts. It gets kind of a bad name. People don't really like them. Trust also are administered after death. Revocable means you can change it, hold things in and out as you see fit. Irrevocable means you don't. You cannot change it. The material aspects of the trust have to remain. And legally speaking, you don't own those things anymore. The trust owns them. So think of it like a corporation. You're switching ownership into that trust. And that's what that would be for. You see a revocable trust with Medicaid planning, disability planning, funeral trusts are irrevocable. Irrevocable is a lot less user friendly, so to speak, revocable. You can pull things in and out all day long and that is still fine. But after you pass, then it's what's in the trust is the trust funded and where do things go?
Linda Kritikos: [00:17:03] Okay. In saying that, in regards to revocable and irrevocable trust and things being taken care of at death, does a financial power of attorney end at death? And what would you need to do in order to be able to access those assets? If you were the financial power of attorney and that ended at death, would you need to be the owner of those accounts or the executor? I mean, if you could explain some of that stuff.
Pedro Hernandez: [00:17:33] I mean, I can take that. So your representative, under the power of attorney, may not be the same as your personal representative as you designate it under a will or under a trust, should it be? Probably. It just would make sense to have the same person be able to execute these documents if that's the case, right, for consistency purposes, but for a trust, like what do they need to do to be able to access these documents? Well, in the trust formation documents like Steve says, it's kind of like the equivalent of an account/LLC or some corporation. You designate a representative, a trustee, a person that manages the trust. And if the Po representative is the same as that trustee, it'll be an easy transition because they'll have access to those accounts already with those documents upon death in the will as well. If you designate them as the executor or personal representative in charge of disbursing the assets or making sure that the will is carried out as intended and as written, they will have access to these accounts as well. So that's what I would say for being able to make sure that there's an easy transition from having that power in life and in death.
Stephen Howitz: [00:19:05] I'd probably add that powers of attorney do stop at death. So healthcare and financial both cease. An executor named in a will needs to be appointed by the court. So a lot of people think that, well, they named me executor in the will. That means I'm an executor. It's not that quick. It's not that easy. So you'd need a death certificate. You would need to open probate potentially depending on the assets. You would essentially go to the entities, stop in at a bank. Talk to them about how things are titled. Everything hinges on how things are titled. So if I have a joint checking account with my wife, I pass away. She brings in the death certificate. They took me off the account. It's hers 100%. That can be an example of any different asset that you've got, retirement stocks, bonds, investments, anything like that. But you do technically need to be an executor before you've got power. There is sort of a gray area right after death because nobody legally has the ability to act. It's kind of a Wild West for a few months until somebody wants to do something in either open probate or maybe get an affidavit by transfer. But just because you're named in a will doesn't mean you get to hold that or Lord that over people, so to speak.
Pedro Hernandez: [00:20:25] Yes. And that's the and that's for the will. But, Steve, regarding a trust, would that be different?
Stephen Howitz: [00:20:32] Yeah, correct. A trust can be funded and you would have immediate access if you're the successor trustee with the death certificate. So if you put things into the trust, that's the other thing I would stress about people really like trusts. They feel safe, they hear a word and they sleep better at night. And if the trust isn't funded, that's where the problems arise. So if you don't put things into that trust, real estate, bank accounts, assets, retirement, whatever, then it's hollow. So then you'd need to have an estate, you'd need to have a trust administered. That's double the amount of time, double the fees, which I certainly don't mind, but it's not great for clients. So you've really got to make sure you do the work during your lifetime. If you want to see these things happen. Because by taking those steps and doing the work, you're avoiding me getting double fees, essentially.
Pam Dunwald: [00:21:29] I do have Linda. I just have one question before we move on with that on this point. So by having a will or a trust, I think a lot of our clients and a lot of lay people don't understand the probate process. So being prepared, having these documents in place, does that affect the probate process at all as far as length of time or how does that work?
Pedro Hernandez: [00:21:54] Yeah, I mean, anything where you have a, I mean, so with a will the probate process, probate, I mean, is essentially when you get the courts involved, as we discussed with the trust, the courts will probably not be involved or very minimally involved if there needs to be clarification or there's some challenges to it. However, with a will, you still needed to get validated. You still need to get an executor assigned as Steve said. However, wills are, you know, have the express stated intent of the person that left it. So the court is essentially reading off an instruction sheet. So in trying to validate it and keep it going. So it's a lot less time if there is a will than if there isn't. Because now if there isn't a will, let's just say that anybody that could be an heir to the person or has an interest in the assets is going to have a larger voice. And trying to fight for whatever they think is what they were supposed to have in the end, rather than before, where they're notified that there's a will and a probate opened. But the wills got to be respected unless it was done incorrectly, which is why you should probably talk to an attorney to make sure it is done correctly, so that whatever you intended to happen happens.
Linda Kritikos: [00:23:29] So in moving forward. So when should an aging adults or children of the aging adult. When should they begin these conversations? We talked about early planning. You talked about starting sooner than later, but when should they have it? Is there like an age frame or a time frame that this should happen?
Stephen Howitz: [00:23:51] Yesterday. Really. So no, there's no there's no wrong way. There's no right way. I think a lot of this sounds very intricate and sounds very daunting and intimidating, and that's not the goal. So I understand that we work with these terms and these documents on a daily basis. But as a layman, just take the first step, start, do something positive, reach out to an attorney, start the ball rolling, and don't feel intimidated. Don't feel scared. Ask all the questions you want. There's no stupid questions. That's what we're here for. That's what you're paying for, is the service of our knowledge and our ability to help you guide through the process. Is there an age? I'd say probably in your 40s or 50s? Depends if you have kids. Depends if you've got real estate. Depends if you. So there's no wrong way. There's no floor. Obviously choices. If you're 85 and have COPD and a bad heart are going to be a little bit more limited than if you're 40 and run triathlons. So do it sooner rather than later. But just take that step, start the process. Rip the band aid off and get comfortable with especially powers of attorney. Even if you're not going to do estate planning for after death, you really need help during your lifetime. And that's going to make it easier for friends and family. And the other thing I'd point out is that being power of attorney is incredibly hard.
Pedro Hernandez: [00:25:20] You guys know this as nurses. This isn't a fun job. This isn't a walk in the park. You're living your life and also somebody else's. You're getting intimately involved in every detail of their finances, of their medical decisions, of the most intimate portions of their being. People need to want to do it. So you've got to have that discussion. You've got to get people willing to do it. Everybody loves to backseat drive and say they could do a better job, or you're doing this wrong. Well, then step up and do it. It's very difficult to throw stones at a glass house if you're doing the hard work and taking care of mom or dad. But it's really important to talk to your kids to get their consent, to have them understand what this entails, because a lot of people take it on and get overwhelmed and scared and confused. And that's when everybody else starts to suffer around them. And that's not fair to your agent either. You don't want to do that to your kids. You don't want to do that to your loved ones. You don't want to do that to anybody. But just appreciate the fact that you're asking them to do an incredibly difficult service.
Linda Kritikos: [00:26:39] I agree with that. I'm actually my dad's health care power of attorney. And it has not been an easy I mean, the phone calls at 1 or 2:00 in the morning regarding decisions that need to be made, you know, input, you know, from other family members in regards to this and having to explain to them why decisions are being made the way they're being made is not an it's not easy. Sometimes it's like, I'd love to be able to go to Europe and travel on vacation. But I'm concerned that as things get closer, my dad's life. How will that affect him, they're not going to be able to get a hold of me. They're not going to be able to do things. So it limits some of the things, the freedom that you do have. So what happens and what happens if someone passes away without the right documents in place, like they don't have any of this stuff in place or they have a trust, but not everything is put into the trust. So how does this all happen?
Pedro Hernandez: [00:27:52] Well, I'll tell you. I mean, the simple, straightforward answer is if you want things resolved, you're likely going to have to go to court, open up a probate case, let everyone know who, as I referred to earlier, is like anyone who could be an heir needs to be notified about this case. Now, here's the practical way that it would look like the person passes away. You may be strapped for cash for funeral costs. Maybe you didn't personally plan it in your budget to now be paying for funeral costs or anything associated with that, or in the burial or cremation, whatever you choose. You're like, well, they left some money probably in their bank account. You go to the bank. The bank says, I can't let you access that account, even if you're their son, even if you're potentially their spouse, if you're not named on the account. What else would it look like? Okay, they have a life insurance policy. Maybe I can access that. Well, if you're not a beneficiary on the life insurance policy, you can't do that either. Oh, maybe the house that my person lived in needs to be fixed, or there's taxes that need to be paid. Maybe you could pay the taxes. However, you can't get certain programs, certain help or certain loans to make those repairs in the house or even sometimes negotiate with the mortgage companies on satisfying the mortgage or refinancing anything you need because you haven't been designated as the person able to do that. So all these institutions that were responsibilities of the person that was alive now are going to be able not going to be able, but also kind of forced to shut you out until there is an actual decision made. So that's why you got to go to court. That would take months. So that's the practicality of what would happen.
Stephen Howitz: [00:29:55] I think you've got to title things correctly too. Yeah. So if that's where the joint things come in, that's where a prepaid funeral comes in. The mortgage is the biggest problem I see. We'll oftentimes get people where the house is already in foreclosure, and that's not uncommon. Now you can get paid back for these things if the estate has money. But once somebody dies, essentially what we need to figure out is where are the assets? What are the assets? How are they valued in the title? So the one thing I encourage clients to do is during their lifetime, please keep track, keep an inventory, keep a spreadsheet, talk to your loved ones about quote unquote, where the bodies are buried. Pardon the pun, because what you need is information. If we don't know, no attorney has more knowledge about your loved one's life than you. And if you come and say, I don't know what they own, the answer for me is likely going to be, well, neither do I. So there isn't a central registry. There's not a place you can just go to online to see who's got what and where. That's not how these things work. And if they did, people would, I'm certain, abuse it. So know as much as you can. Go through the mail. Talk to your loved ones.
Stephen Howitz: [00:31:13] I've got my mom who's made a spreadsheet of account numbers, phone numbers, balances, where these things are. Because if she passes, my dad's going to have no idea what to do. So in reality, you need to step up a lot sooner than after death. But you need information. And the more you have, the more complete picture, the better you're going to feel, and the more likely you'll think you got 100% of everything, because there's never going to be a guarantee. You don't get to cross a finish line. You know, there's no clear indicator that you're done and things can come up. Things can fall through the cracks. We see stuff from 15, 20 years ago where nobody did anything with real estate, and now you've got to come to me and we got to open an estate for somebody that died back in the late 90s. That just happens. That's life. But deal with it. Proactive, head it on. Don't think it's going to get better with time because as people pass away, this gets worse, not better. So by the time you come to me, you probably need an attorney. Five years ago, maybe ten. And now it's going to be a much more expensive unraveling of the rubber band ball, so to speak.
Linda Kritikos: [00:32:29] Well, now I'm going to send it over to Pam because she's got a few more questions for you.
Pam Dunwald: [00:32:34] Thanks, Linda. And this next set of questions really focuses on protecting assets for aging adults and reducing the stress for their families. How to help avoid conflict and confusion and really connect legal planning to family communication. And I'm going to use as I get into these questions, I'm going to use my situation as an example. My husband and I have a blended family of seven children. Not all seven children get along. So you know how. What are some common ways families can protect assets as part of a larger estate plan?
Pedro Hernandez: [00:33:12] Sure. So I think I won't use you specifically, but let's just talk about the blended family in general. That's very common. What can you do? There's a bunch of instruments that you can do. I mean, if you have a spouse, you have to make sure that any instrument you write respects. I think your right of survivorship, right of survivorship is that the surviving spouse inherits the marital assets. So that's the first thing. And marital assets are, we can get into that some more. But it basically is anything that is in the marriage or comes into the marriage and also is jointly owned. I would say make sure that once your spouse is taken care of, that it's clearly written whether. Then again, it's like if the blended family also is like if the assets are not super complicated, maybe there's only one house, then maybe short of some other documents, you might want to do what we call a transfer upon death deed. So designating a beneficiary that where the house, upon the death of the parents just immediately transfers to a person. And that would be something you register with the register of deeds in your county, and that would help you avoid probate, avoid in the estate plan. Make sure, like Steve said, I think the most important thing is to title everything correctly. Make sure your beneficiaries are properly designated as you want it. Make sure your powers of attorney are the people that you want. Have the powers that you want to do. Your trust is exactly the way you want it. Like this is who the trustees are. You are the successor trustees. Once we pass away, and this is who the beneficiaries are, and these are the terms and conditions for it. That's my best advice, especially for a blended family, because clarity is the best tool and also your best friend.
Stephen Howitz: [00:35:26] I guess I'll add something. Sure. It's. If people didn't like money, I wouldn't have a job. So that's pretty much the basis of every estate plan. And the reality for a blended family is to try and make your wishes known in writing as much as you can. The correct title. The other thing to consider is you can only control what you can control. If your kids are going to fight, that's going to be something that's beyond your control to stop 100% anyway. People are who they are. You can only control what you can. But it doesn't have to be that bad if the planning is sufficient and you've taken other routes to provide for your family. But estates can be sibling divorces or blended family divorces. Well, that's not my mom. I don't care what happens to her. Those types of sentiment aren't uncommon, but the law protects surviving spouses. The law protects kids. The reality? With all the state plans. I may want my parents money. I may like their money. I certainly would take it if they gave it to me. I have no legal right to that. So if you spend all of your money during your lifetime on your care and die penniless, that's the point. You did it. And kids don't like to hear that. And it's a tough thing to sell because there's that expectation or the feeling of entitlement, but really use the stuff up during your lifetime. Give things away during your lifetime. Wouldn't you rather see somebody enjoy your gun collection or the Harleys or whatever the case is going to be? But if your family's going to fight, there's never a 100% way to prevent it. And really don't lose sleep over it, because the good news is you're not going to have to worry about it because you're dead.
Pedro Hernandez: [00:37:25] You have a proper estate plan. Right, Steve. So you already laid out what you could lay out, and that's the best thing you can do.
Pam Dunwald: [00:37:35] In this type of planning, what are some of the mistakes that you see families make when they try to handle these issues too late on their own?
Pedro Hernandez: [00:37:44] Don't try to make everybody happy. You've got to do what's best for you, and your needs come first. And it's hard for people to compartmentalize that because you want to take care of your kids, right? I've got two daughters. That's the whole point. That's the reason I get up in the morning and I'd like to leave them things. But at some point, your best interests are what matter, so it's not where mom wants things to go after her death. What does mom need during her lifetime? How can we care for her and make sure she's in the least restrictive environment, getting the care that she needs and that she's happy? So the mistakes I see are guardianships. I see a lot more of those now, and that's just planning up front. That's an emergency situation. Catching somebody off guard, nothing being in place. And now here we are. And that's going to cost, you know, ten, 20, $30,000. Trials aren't cheap. And at the end of the day, you're still going to get the help. But use what you can use. Give away what you can give away during your lifetime. It's very hard to argue with things that the testator or the deceased did. So if you gave away your train collection, it's really hard to challenge that years or months down the road if that was done under your own volition, you can do that with money. You can do that with real estate. You can do that with anything you want. Now, could it have Medicaid implications? Yes. Would I recommend that people just start giving everything away? No. But it depends on the circumstances and what your goals are. If you come to an estate planning attorney with goals and an end point, we can help you get there. We start on the one yard line, and if you know where the touchdown is, we can help you plan that route.
Pam Dunwald: [00:39:32] That's a great point, Stephen. That leads into my last question on this section. And that's what documents or what information do you like to see families bringing to you when they're first meeting with an estate planning attorney?
Pedro Hernandez: [00:39:48] I think when they're first meeting with us is. I think sometimes I have clients that come in that. I think the most common thing they know of is powers of attorney and wills. So I think just generally what I ask folks to do, first and foremost, other than documents or whatever, is what do you want to do? And by that, I mean, what do you have and how do you want to allocate it? Like, what is your goal? And after that, Steve and I can advise you, these are your options and these are your best options to make sure that happens. It may be a power of attorney. It may be a will, it may be a trust, it may be a number of other things. So first and foremost, please have in mind what your goals are. Like, this is what I have and this is how I want it to end up and where to go. Or this is who this is, what I'm going through, and this is what I want to make sure I protect myself for. Or these are the people important to me, and I want to make sure that they're set up in this way. So how can I make that happen? In addition to that, I think just normal documents know what your bank accounts are, what assets you have, what pensions you may have, anything that has a monetary value to it.
Pedro Hernandez: [00:41:14] And then also maybe, and this goes on a case by case basis. And Steve was basically saying it like model trains or whatever. What are things that are sentimental to you? Maybe that has been passed down in the family that you want to make sure a particular person has, because although it may not have the market value that a court will look at, it has a lot of special value. Maybe it's your great grandfather's like or your grandfather's World War two medals or letters during. I just keep thinking of the war, the letters from the war or whatever that they kept but has historical value, has a lot of emotional family value, a veil or a wedding dress rings. You want to make sure like if you have those things in mind, come to us like when you go to an attorney, it's like, I want to make sure I have these things protected or make sure that they go to the right person and by the right person is who I want them to go to.
Pam Dunwald: [00:42:16] Thank you for that. Steve was I want to add to that.
Stephen Howitz: [00:42:19] Sure. Asset information is the number one thing. What you've got, where you've got it, ballparks. I don't need account numbers and balances, just an idea. And then what you want to see happen. So the goal is correct. The other thing is estate plans. And I think this might be a later question, but state plans aren't going to last you forever. They should be looked at every 3 to 5 years. Now look, that doesn't mean changed. Doesn't mean you have to go spend more money or call your attorney. It means look at your documents and make sure that this is still what you want and how you want things done. Life is going to happen. People are born, people die, people get married, people get divorced. Make sure that you account for that and update things accordingly after major life events. So the other thing is things that haven't been updated in a long time. I see that a lot and it's tough when everyone else has passed away or you're the last one remaining. But make sure that you look at your estate plan and make sure it still works for you.
Pam Dunwald: [00:43:25] Thank you, Linda, I'm going to go ahead and turn it over to you for our next set of questions.
Linda Kritikos: [00:43:30] So in just bringing this conversation along, uh, we talked a lot about things that belong in a trust or in, you know, in a will. And we talked about assets such as a home. And to a lot of people, their home is their largest asset and it's the one that they treasure. They've worked hard for, for the last 20, 30 years. But it is part of their largest asset. So can you tell me a little bit about some of the issues that families face when they own a home and that individual passes away? I mean, what are some of those common issues that they're going to face?
Stephen Howitz: [00:44:12] Paying the bills? So number one is going to be the mortgage because the mortgage doesn't care if you're alive or dead. They still want their money. The other one would be power. The other one, keeping the utilities on. The other one I see is vacant houses. So sometimes that's a concern with burglary. You need to alert your insurance company to those things. A vacant house is insured at a much higher rate than a normal home because of the likelihood for crime or people vandalizing it. But it's that status quo in the meantime, right after somebody dies. So if you pay things on behalf of mom and dad or you make a couple mortgage payments here and there, again, you can get paid back for those things. You don't have to pay them out of your personal funds, but to keep things afloat for that initial 60, 90, 120 days, that's usually what this is. And mortgage companies will work with you. A lot of lenders understand they want a death certificate and some sort of plan, be that selling the house, or somebody else is going to assume it or pay off the mortgage, whatever the plan is. A lot of people don't know what to do initially and get kind of overwhelmed and scared, but just maintain the status quo, do whatever you can to keep things normal on time and pay if possible. And if not, then you need to start actively moving towards probate or trust administration to get liquid funds to pay those things.
Linda Kritikos: [00:45:42] So how, if that is the title, could you talk about titling things? If the how, if, depending on how the home is titled, will that affect the probate process?
Pedro Hernandez: [00:45:55] Yeah. I mean, let's say you're not even married, you never get married cohabitation and well, what on the streets and common culture, they say common law marriage, right? People that just are joint partners for life but never get officially married. Wisconsin doesn't have marital property for folks like that. However, like, so the these two, I'll give you two different ways to think about property. Real property can be titled. There's what we call a concept of joint tenants in common, which is the most common version of buying a house if there's multiple owners that aren't married. And then the other one is joint tenants with a right of survivorship. Now, if you and that person basically are married, but everything but legally have that designation, if your joint tenants in common, and you don't have anything written down will trust or anything when you go to probate your partner, if they had children and it's a blended family, they may have a right to at least his part of that property. Now, if there's a joint tenants with right of survivorship, that partner that you had that you never married gets essentially that property in the same way that a spouse would, because they have the right of survivorship and it's been titled correctly.
Stephen Howitz: [00:47:27] I could add that will the title to real estate affect it 1,000%? That's one of the biggest things that's going to determine if it's in an estate, out of an estate, in a trust, out of a trust, if it goes to a spouse, if it doesn't go to a spouse. So adding people to your title can transfer it. But realize that adding the one I see often is adding kids to the title during your lifetime. They won't give it back. The trouble is if, if you own a home with your kids equally, and you only own a third of it and they own two thirds, technically they could evict you potentially. Now, I'm not saying they're going to. And evicting your parents is certainly one of the more morally questionable acts I could think of. But the issue is that by deeding things and how things are titled, it's 1,000% the most important legal aspect of probate and estate planning. That's where everything starts and stops.
Pam Dunwald: [00:48:31] Linda, before we move on, I just want to make one statement. We have a lot of listeners from all over the country. Are any of the things that we're talking about? Could they be state specific? I mean, do we need to make mention of any of that?
Pedro Hernandez: [00:48:43] Yeah. Like I said, in Wisconsin, we don't have common law marriage, but there are states, and you should check with your local attorneys across the country to see what your rules are on, quote, marital property, on domestic partnerships, on any status of relationship that you have. Because cohabitation, co-mingling of assets, however you treat your money with your partner can trigger rights for the other person. So please consult with an attorney. I think that is one of the biggest areas that comes to mind, particularly that would differ state by state a lot.
Stephen Howitz: [00:49:25] The other one is deeds. So certain states don't allow terminations on death deeds. Some of them call them life estates. Some of them call them Lady Bird deeds. But check your local state. That's certainly something. Most include them. But places like Florida and Arizona don't. They really want the probate down there, they want the money, they want the fees. The courts do and the counties do. So there are ways to avoid probate. And trusts are a great way to do that. But state specific advice is extremely important.
Linda Kritikos: [00:50:00] So what should families consider then before they sell or transfer or keep a parent's home? When do you know, when they're looking at estate planning?
Stephen Howitz: [00:50:14] I mean, first and foremost, I mean, for keeping a parent's home specifically, I would say, is it worth it? Have they kept up the house?
Linda Kritikos: [00:50:23] And that's a good point though. It really is a good point, I think.
Pedro Hernandez: [00:50:27] I mean, Steve hit it on the head. A lot of the questions with estate planning aren't easy. And it's compounded by the fact that a loved one has passed away and that it's affecting everyone. There's ripples throughout, just pragmatically in your family. So like, is keeping the house worth it? And if it is, consult with your local attorney. Make sure that you do the deeds correctly. See how everything is titled. Make sure everything's in place. If your parents are still alive, make sure that they are medically competent to do the documents. I think the worst situations for me that make me feel bad, but also I'd rather not go forward with some representation sometimes is that a parent has been diagnosed with dementia or something of that nature, progressively worsening disease. And by the time they get to us, like I, I just ethically cannot do it because they would be my client and they are struggling to answer basic questions and I can't do it like they are not competent enough. And now they have to go through guardianship if they want to do something or go through these other other avenues. So if your parents are medically competent. Talk to an attorney immediately. Go to a local legal clinic. God knows there's a lot of law schools. So go talk to somebody in your local area. Come talk to us. If you're here in Wisconsin, that's what I would say.
Stephen Howitz: [00:52:10] So can I add one point?
Linda Kritikos: [00:52:12] Oh, sure.
Stephen Howitz: [00:52:13] Sure. The thing that I would distinct or at least to distinguish on is are they alive or are they passed away? If this is post them passing, it's a different equation. If there's any reasonable expectation that they can return to their home medically with a ramp, there's those barriers that you need to be able to complete: toileting, getting up and showering, things like that. If they can return home, I wouldn't necessarily sell the home for a Medicaid type concern. Because homes are traditionally primary residences are primarily exempt from Medicaid. You would be converting it into a cash asset, potentially, which is money that's going to have to be used towards mom and dad's care. If they could potentially return home, you know, it has to be a slim percentage, 1% a percentage. You may want to keep the home during their lifetime. So that's an equation where you talk to an individual estate planning attorney based on mom or dad's medical decisions at the time and their condition, but just don't sell things willy nilly because you could be creating more liquid cash or less liquid cash. It could count against you for Medicaid. Get advice before you buy or sell anything at that point.
Linda Kritikos: [00:53:32] So I guess that goes into my last question for you guys. So I guess there are some legal and financial problems that can come up if property planning has not been done in advance correctly.
Stephen Howitz: [00:53:47] That's why I have a job. So yeah, yeah, it's if people. The number one thing I see as an attorney and it's been a while is dad said I was going to get the house I took care of dad. I was working there. My house. Now I'm not diminishing the work. Obviously, that's a value to dad. That's a very admirable moral thing that you've done. You kept your dad in his house. You took care of him during your lifetime. You're a heck of a son. Does that mean you get his house automatically? No. If dad did nothing to effectuate that and would simply just tell you? Because the fact of the matter is, he might have told that to your sisters, too. Or he might have told that to the neighbor or the mailman. Who knows? It has to be in writing. It's got to be documented. Word of mouth is too difficult. Somebody saying it on camera isn't always compelling. So be careful having the high moral ground you do. But in the eyes of the law, that still doesn't mean entitlement without written agreement and consent.
Pedro Hernandez: [00:54:52] I don't want to quote any movies, but if you've seen Knives Out, you could be giving your house and wealth to Ana de Armas. You know, if.
Linda Kritikos: [00:55:00] What was that movie again?
Pedro Hernandez: [00:55:02] Knives out. Beautiful.
Linda Kritikos: [00:55:03] Oh, yes. Yes.
Pedro Hernandez: [00:55:05] Yeah. With Daniel Craig. So not not a sponsor, but. Just want to make that shout out.
Linda Kritikos: [00:55:15] Okay. All right. So let's go on to our next arena, which is let's bring this back to the caregiver responsibility. So Pam, are you ready to take that part out?
Pam Dunwald: [00:55:27] Yeah. These couple of questions we want to just talk about, you know, Linda and I deal a lot with aging adults and they're wanting to feel independent and they want to feel in control. So can we talk a little bit about how estate planning helps families during health challenges or care transitions or just to have that aging adult feel like they're still in control. How does estate planning benefit that?
Pedro Hernandez: [00:55:53] Well, it would keep you in the least restrictive environment. So even a guardianship or a power of attorney wants to place you in the place with the most freedom to you. There's a misconception that a court's going to throw you into a nursing home and lock the key. That's not really the case. Everybody has a right to leave a nursing home if they're medically cleared. If you did a straw poll at any care facility anywhere, I'm sure darn near close to 100% of the people would want to go home. Right? It's just not possible if they're not doing the rehab, if they're not medically cleared. So doing the work keeps them in control of this. It shifts the burden from the medical providers to the party, and you can do a lot at home now. There's in-home care, there's a lot of supervision that you can get 24 hours if the resources are there. You don't have to go to a quote unquote nursing home and be forgotten about or thrown away or relegated. Doctors don't want to do that. It's what insurance will cover. What can you medically do to clear yourself? And who's making those choices for you? That's where family can step in and speak up for you. And a lot of it comes down to what you're willing to do. My grandmother went into a nursing home at 70. She was supposed to get out in six months. She died at 92 in that same nursing home. Why? She didn't do any of the work. She loved it there. Now, that's an exception. But it's not meant to punish. It really isn't meant to be jail or some sort of large housing type crisis. But if you do the work and you're medically cleared. You can go home. You can go where you want to be.
Pam Dunwald: [00:57:38] So what Linda and I entail a lot is, well, we work a lot with the adult children of the aging adults. And they'll say, you know what? I've been trying to get mom and Dad to get their affairs in order. It's a really tough conversation. They always say they don't want to talk about it. Is there any recommendations or any advice you could give these families to help encourage the aging adults to get their affairs in order?
Pedro Hernandez: [00:58:05] I'll share a personal story. My first clients in quotes were my parents. When I was in undergrad, my dad had an on site work accident, which put him in the hospital for two months with traumatic brain injury. I had to see my mom navigate closing a business, do all these things by herself because I didn't know how to do it. But I would help translate and go to all these hearings later on for worker's comp and setting up a special needs trust. And these documents, right. I have seen it and personally felt what it's like not to have a proper plan later on. I mean, that was an eye opener for my mother to have updated Will and all these other documents afterwards. Thankfully, my dad is still with us, but he's permanently incapacitated. But he's still with us. We have a special needs trust, but navigating all of that, I can tell you, without a special needs trust, without all those plans, benefits, and planning around it, it would be extremely difficult and you never know when to expect it, right? For me, my dad had his own roofing company. He was like Superman right when I was younger, especially when I was younger. But all it took was one bad fall. And now we had to scramble to find all these other things. For adult children, I mean, parents sometimes. I mean, we all have them. They're going to be who they're going to be. And sometimes they're very stubborn. But I mean, whether it's convincing them of these kinds of situations that they want to avoid, whether it's framing it in a way of like, hey, if you don't put it, that guy you don't like, or, you know, like this could be where it goes. Like also, the government, maybe the government angle is the way to go. Do you want the government telling you how to get yourself or who it goes to? Like, come on. Right.
Pam Dunwald: [01:00:15] Their pain points there.
Linda Kritikos: [01:00:17] Yeah, exactly. If you're their child, you know what annoys them. So find a way to angle that to make sure for their benefit. So that's what I would suggest.
Pam Dunwald: [01:00:29] That makes sense. And the last thing I want to ask about this, and I know we touched on it before as far as what to do to prepare to come meet an attorney. But again, you know, even a small step sometimes it takes a little bit to get your aging adults to move forward. So is there one small first step families can take this week to kind of get this ball rolling?
Stephen Howitz: [01:00:53] Start the conversation. I mean, it's going to be baby steps. Pedro's right that you know your parents better. You know how to approach this. If it's a group mentality, if it's a neighbor or a friend or somebody they trust, you know how to. And I don't want to say the manipulation, for lack of a better word, although it's not because you're helping them, but you've got the ability just to start. It's not going to be quick. It may not be immediate, but it's baby steps. And if you can build any momentum or you can start even if you can get out of them, who would you like as your agent or what would you like done with this? You can prepare draft documents. And then once they're real and in front of them, potentially that can do some things. But just don't give up because you will have this conversation either when it's too late or beforehand. So it's coming one way or the other. And the sooner the parent realizes that, the better. But I know you can't make up. You can lead a horse to water, but you can't make them drink. But that doesn't mean you stop trying. So keep trying. They're worth it. This is going to be worth it for you and your mental health as the child and theirs, and it really benefits them. So just don't quit. Even if it's hard, even if it's frustrating, even if it's difficult because I've made my own parents sign a medical against lawyer advice type form. So similar to the against medical advice form when you're released from a hospital, because I wanted them to understand that I've explained everything. We've talked about it. If they don't want to make that choice, that's up to them. And they're essentially removing me of all my morality and my moral duty to these things. So I'm off the hook. It's my brothers. It's my brother's fault now.
Linda Kritikos: [01:02:39] There you go. That's the buck. Pass the buck.
Pedro Hernandez: [01:02:42] Right. And I think another aspect like, you know your parents passed also, but I think an aspect to life and death and estate planning is the faith aspect too. Now we deal with the legal part, right? But if you want your faith respected in how you dispose of the body or move to that new transition of life and death, or how assets should be divided according to your faith, whether it's Judaism, Islam, or another religion, your estate planning is important because we do have separation of church and state in the country, and our laws are one thing. And maybe what your faith dictates is something else. So you're going to want to talk to an attorney. And maybe that is also the angle to tell your parents, because the way they want to divide the assets may not be exactly what a judge would say.
Linda Kritikos: [01:03:40] That's actually a really, really good point. Yeah, that's a really good point that they really need to think about. So as we get near this closing, I want to just go through some practical next steps that someone can take. Pam had alluded to this, and you guys have given us some great information in regards to that, but I'd really like some final wisdom from both of you to kind of reinforce the educational nature of this episode and the value of having such great professional guidance. So what would be one thing that you wish every family understood about estate planning and protecting their assets, and what would you say that would be?
Stephen Howitz: [01:04:25] It's worth the money. Every dollar you spend now is going to save you five. Down the road and maybe even more down the road. I don't know what the economy is going to look like, but start gathering information. Start with baby steps and learning about these things, asking your parents where the accounts are, getting information. But I know people don't want to spend this money. I know that it can be difficult to drop a chunk of change on a trust or an estate plan, but it really is worth your time. It's going to save your kids a headache. It's going to make your wishes known. To Pedro's point, my mother prepaid her funeral 15 years ago down to the color of the casket. Now, I'm not going to give her the red casket. And she knows that because I've made that quite plain. We're going to go purple because my choice, I'm calling it. But if it matters to you, do it because she's done everything down to the details of shipping the body to a different state. Religious custom, it's Russian Orthodox. All this spending money now, it doesn't count against you for Medicaid. It's a good investment. And by the time you need it, it's too late.
Linda Kritikos: [01:05:39] Mhm. So what would be one of the most, I guess this would also be one of the most important takeaways from today's episode is that, planning and doing this early, as early as possible is really the way to, to initiate this and having these conversations early.
Pedro Hernandez: [01:06:00] Yes. And I think I would just reiterate what Steve said earlier. For me, the biggest lesson is your estate plan. Now, if you're not going to make everyone happy. So at the end of the day, you have to be confident that you are doing what you believe is correct and what your beliefs state and what your goals are.
Linda Kritikos: [01:06:23] So in saying that, where would someone start if they realize they need this legal help with estate planning or real estate issues, where would they start?
Stephen Howitz: [01:06:34] Start gathering information. Yeah.
Pedro Hernandez: [01:06:37] Well, that to start gathering information with what Steve said. However, come talk to your attorney. Come talk to an attorney. Whether if you're not in Wisconsin, find a legal clinic, find a local attorney through your state bar, through your county bar association. Talk to somebody. If you're in Wisconsin, luckily you have Steve and you have me at the very least. And guess what? We cover both languages because I am bilingual. Steve. Not yet. Steve. Maybe in the future, but I have hopes, Steve. But we got it right. So come talk to us if you don't know where to start. But once you have what you know, what you have, what your assets are. Gather information. Like Steve said.
Pam Dunwald: [01:07:28] Pedro and Steve, thank you so much for being here and for helping us talk through this really, when you look at the realm of estate planning, this is such an important issue, the legal planning part of that. So I just want to really thank you, uh, for joining us today.
Linda Kritikos: [01:07:47] Yeah, I double that. I mean, this has been such an eye opening experience for me. And I've learned so much from, from listening to both of you with your expertise talk about this. And, you know, these conversations are not easy. I know that as healthcare po for my, my parents, but, you know, it does make a huge difference for families who want more clarity and less stress and better preparation for the future.
Pam Dunwald: [01:08:18] And again, we want to remind our listeners that today's episode was shared for educational purposes only and not specific legal advice, because every situation is different. So please connect with either Pedro and Stephen or a qualified attorney of your choice in your area, your state, really to address your specific needs.
Linda Kritikos: [01:08:39] And don't forget to check the show notes for resources related to this episode.
Pam Dunwald: [01:08:44] You know, and if this conversation was helpful, please share with a friend, a family member, or another caregiver who may need to hear this information.
Linda Kritikos: [01:08:53] And be sure that you subscribe to Health Care Redefined advocating for aging adults and their families so you don't miss the rest of season two.
Pam Dunwald: [01:09:02] And we're so glad you're here with us. Take care.
Linda Kritikos: [01:09:04] So until next time, take care of yourselves and the ones you love.