Author: Beth McDaniel

Things to Do Before you Die

By Beth A. McDaniel, JD, CELA 

 

Over the years we have developed a few different resources that we provide to clients when informed of the death of a loved one. For example, there are so many entities which need to be contacted, like voters’ registration and the credit bureaus.

 

Some time ago a client remarked that although such lists are great, what about a list of things to do before you die? I have never forgotten that request. Here are just a few of the many things that should– ideally – be done before you die: 

 

  1. Check your Beneficiary Designations. I advise that beneficiary designations be checked routinely for errors and accuracy, especially as situations change. For example, you don’t want your late spouse to be the sole beneficiary of your life insurance policy. After being married to me for about five years, my husband looked up his 401K beneficiary online and discovered that one of his brothers was listed as the beneficiary. I was relieved when he immediately changed the beneficiary to me. About three years later, he checked it again and found his brother was STILL listed as his beneficiary! Clearly there was a glitch in the system, which thankfully is now fixed.Likewise, I recently checked the beneficiary designations of a few life insurance policies of mine and noticed that my husband’s last name was misspelled. If you have a Will with provisions for minor or disabled children and wish to a minor or disabled child as a beneficiary, it is important that the beneficiary designation states the beneficiary is a testamentary trust (a trust created by your Will) versus directly to a minor or disabled child.

 

  1. Consolidate Finances. Trust me, your spouse or children do not deserve the headache of spending hours and days contacting or visiting multiple financial institutions upon your death – I have one client who had to visit EIGHTEEN different banks upon her loved one’s death. It is a gift for those you leave behind if your checking and savings accounts are at one financial institution and you consolidate all those 401Ks you still have from various jobs so that they are managed in one place.

 

  1. Tackle Your Paper. A client recently commented that her loved one left paper behind in four different parts of the house. It hit me that I too had paper in four different parts of the house (kitchen, playroom, music room, and a filing cabinet in my son’s closet – largely the result of our home office being used temporarily as a bedroom). I am happy to report that now I just have paper records two parts of the house – in our home office and in a few boxes in our playroom – quite the improvement. I have heard many stories of deceased parents who ‘kept every bank statement since 1965.’ Stay vigilant and with keeping paper organized and in control. Keep all your important papers in one place. Take advantage of periodic free community shred events to get rid of outdated statements or statements for closed accounts. Go paperless when possible.

 

  1. Consolidate Passwords. Consolidate passwords for your online accounts and applications. Yes, you can keep them all in a book, but there are also helpful password managers. During Covid, my husband and I moved our passwords to LastPass. It has been a gamechanger. Other password applications include 1Password and NordPass. I suggest researching them to determine which one is right for you. Of course, it is important that someone knows where to find the login information for the manager. Do not forget to document those secret questions as well as someone not being able to answer one may cause headaches. I read about a widow who was unable to remove her late husband’s Comcast account as she did not know the name of his childhood best friend.

 

Yes, there are a lot of little things which can be done before we die to make life easier for those left behind. 

 

In her 2018 book ‘The Gentle Art of Swedish Death Cleaning’ author and artist Margareta Magnusson describes a long process of embracing minimalism and starting the process of decluttering yourself of things that are not meaningful to you, or you do not use on a day-to-day basis. This is done by gradually giving away, selling, donating, recycling, or trashing items . Per the author, a good place to start is with clothes closets as it is easy to determine what no longer fits, what is no longer in style, or what is no longer worn.

 

Part of the author’s ‘death cleaning’ process is to advise loved ones of your intentions and to create a storage system for sentimental mementos and photos.

 

I recommend the book for anyone who embraces the concept of a minimalist lifestyle or desires to make the administration of his or her estate as simple as possible. It is a short read (the audio book takes only two hours and 37 minutes) and the author uses her own experience to illustrate her charming, practical approach.

 

If have questions or wish to make an appointment, please contact our client care coordinator, Margo Passeau, at (425) 296-3121.

 

First Published: December 2022 and January 2023

Avoiding Guardianship and Conservatorship

By Beth A. McDaniel, JD, CELA

 

For political reasons, on January 1, 2021, the minor guardianship laws in Washington state significantly changed and on January 1, 2022, the adult guardianship laws in Washington state significantly changed, as Washington adopted the Uniform Law Commission’s Guardianship, Conservatorship, and Other Protective Arrangements Act. To date, only Maine and Washington have adopted this act.

 

Although we are approaching the end of 2022, I can safely say that the judiciary and lawyers are still learning what this new set of laws entails. Under the new laws, there are more notice requirements, a new vocabulary, new record keeping requirements, and increased requirements to demonstrate that other alternatives to guardianship (for medical decision making) and conservatorship (for financial decision making) have first been considered.

 

One thing that is apparent is that this new law has made Washington counties less uniform than ever in their interpretations of the new laws. As a result, guardianship lawyers are now choosing to concentrate their practices in only one or two counties. 

 

Another result of the new law is that family guardians who have never used an attorney are now seeking legal representation as the new laws too confusing for family guardians to navigate on their own.

 

I recently decided that, for now, my office is not going to accept any new guardianship/conservatorship cases (aside from minor conservatorships), except for those already on the calendar, so that we can focus on our existing case load. We can, however, provide a Snohomish, King, Pierce, or Skagit County referral list and are always happy to be a resource.

 

As always, the key is to avoid guardianship/ conservatorship whenever possible. The best way is to have a Durable Power of Attorney that is regularly updated (at least every four to five years) by a lawyer familiar with elder law issues. Generally speaking, the cases that are most likely to end up in a guardianship/conservatorship proceeding are those in which there was never a Durable Power of Attorney; there was a Durable Power of Attorney where the only agent named can no longer serve; or there is a Durable Power of Attorney that was executed when the individual (“principal”) was already starting to lose their faculties. When this happens, the wrong agent, or combination of co-agents, may get appointed, an inadequate power of attorney may be executed, or an adequate power of attorney may be improperly executed.

 

Whenever possible, I try to use the Washington’s Durable Power of Attorney to augment an existing power of attorney (for example, to add another agent) or to validate a Durable Power of Attorney when there was an attempt to invalidate it with an inappropriate Durable Power of Attorney.

 

This process requires a court petition, appointment of a guardian ad litem, and entry of an order giving the requested relief.

 

I am also becoming a bigger proponent of revocable living trusts. If a neighbor, friend, or family member who would have not been the elder’s first choice convinces the principal to appoint them as agent under a power of attorney, that agent would not have access to the trust assets, which can greatly mitigate the possibility of financial exploitation – which is a common reason to instigate guardianship/conservatorship proceedings.

 

If a guardianship/conservatorship were to become necessary due to a medical diagnosis, such as frontal lobe dementia, where the individual can become angry and distrustful, a revocable living trust can limit the scope of the conservatorship. If there is an appropriate trustee, the assets of the revocable living trust would not become part of the court-supervised conservatorship proceedings.

 

I realize that developmentally disabled individuals typically do not have an opportunity to execute a durable power of attorney or trust. For these cases, I recommend a full guardianship and limited conservatorship. Also, I recommend that the conservatorship be limited so that the representative payee of the SSI (who typically is also the conservator) does not have to account for the SSI to the Court. This can significantly reduce legal fees. It is also possible to initially request a triennial reporting period, which will also save the legal fees imposed by annual reporting.

 

Do you have questions about conservatorship or guardianship in Washington? If so, please contact our client care coordinator, Margo Passeau, at (425) 296-3121 or margo@bethmcdaniel.com and she will get you the information you need

 

First Published: November 2022

Reasons to Update Your Will

By Beth A. McDaniel, JD, CELA

 

There are many important reasons to execute a Will, including to nominate a personal representative; nominate a guardian for minor children; establish trusts for minors, disabled beneficiaries, or irresponsible beneficiaries; and to dispose of personal property.

 

It is possible for a properly drafted Will to be ‘evergreen’ and never require updating if it nominates alternative fiduciaries and provides contingencies for deceased beneficiaries. 

Here are 12 reasons a Will should be updated:

  1. There is a change in marital status. If you marry, it is imperative that you update your Will. Otherwise, the law presumes you ‘forgot,’ and requires your spouse to receive the same amount they would have received if you had died without a Will (intestate). This may not have been your intention, especially if it is a second marriage and you and your spouse have taken pains to keep your assets separate. Likewise, Wills should be updated if you divorce.

 

  1. You cohabitate or are in a long-term committed relationship. If you cohabitate or are in a long-term committed relationship, it is important to update your Will to acknowledge the relationship, even if you do not intend to leave something to your partner under that Will. 

 

Note: the best practice is for both partners to also sign an agreement in which each partner waives his or her right to make a claim against the estate of the other.

 

Otherwise, upon your death your partner could make a claim against your estate, claiming that they were in a committed intimate relationship with you and are entitled to a ‘community share’ of your estate. This very well could have been your intention; but sadly, now your partner is left to pursue a claim through litigation.

 

  1. Life Change for Beneficiary. If one of your beneficiaries becomes incarcerated, drug addicted, disabled, or missing. It is important that your Will properly protects their share of your estate and that your intentions are memorialized.

 

  1. Estrangement. If you become estranged from a beneficiary and no longer wish for them to receive anything from your estate or serve as your personal representative.

 

  1. You were estranged but have now reconciled. Likewise, you should update your Will if you have excluded someone from your Will because you were estranged, but now you have reconciled, and you now want to include them. Sadly, sometimes this happens too late, as the individual may no longer has the capacity to execute an updated Will or the new Will does not get signed prior to the individual’s death.

 

  1. Your net worth changes. Washington has estate tax for estates over $2,193 million (2022). If your wealth has increased to over that amount since your Will was executed, it is important to update your Will to do proper estate tax planning.

 

  1. Wish to Change Fiduciaries. You wish to change your personal representative, trustee of any trusts under your Will, or the guardian of minor children you have nominated under your Will.

 

  1. Changes to Distribution of Personal Property. You may like to change how your personal property or assets are allocated/distributed.

 

  1. Add or Remove Bequest. You wish to add or remove a specific bequest to a charity or individual.

 

  1. Disability of Spouse. Your spouse has become disabled.

 

  1. Relocation from another state. You have moved to a different state (Wills are state law specific)

 

  1. Provisions for Pets. You wish to provide for your pets or exclude provisions for pets that you no longer own. 

 

If do not have a Will and need one, or you wish to review your existing Will, please contact our client care coordinator, Margo Passeau, at (425) 296-3121.

 

First Published: October 2022

Financial Abuse – How to prevent it

By Beth A. McDaniel, JD, CELA

 

Aging parents, relatives, friends, and neighbors are all potential victims of financial abuse. Older adults are especially vulnerable due to consequences of the aging process (e.g., cognitive decline, poor physical health, and functional impairment).

Financial abuse of elders is universally recognized as a significant problem that is only going to get worse. Yet, according to the National Adult Protective Services Association, only one in 44 cases of such financial abuse is reported.

 

Here are some ways to help prevent financial abuse of your loved ones:

  1. Encourage continuous, close contact with multiple relatives and friends, and being as active as possible in local communities (e.g., religious organizations, civic organizations, clubs, and hobby groups).
  2. A durable power of attorney, to appoint an agent to assist with finances, and a health care power of attorney, to appoint an agent to assist with medical decisions, are essential. In addition, a revocable living trust can provide another layer of protection by preventing an abuser from accessing financial assets or selling real property.

These documents should be drafted, and regularly reviewed, by a trusted, competent attorney. These documents should also be discussed with trusted family members and friends.

  1. Autopayment of routine bills should be established whenever possible. This helps prevent a caregiver — or anyone else – from writing fraudulent checks and absconding funds. In addition, autopayment helps avoid late payments, late fees, and possible duplicate payments.
  2. Teach elders to not answer their phone if they do not recognize the number. Instead instruct them to have the caller leave a voicemail. Similarly, tell them to avoid responding to any email allegedly originating from a government agency or company threatening them with negative consequences if they do not provide their personal information or some type of payment (e.g., for back taxes or unpaid traffic fines). Inform them that these are phishing emails sent by scammers.
  3. Urge elders to take inventory of — and photograph — their valuables. Tell them that having a record of all their valuables is helpful if a caregiver, repair person, or other service person comes into their home and steals their property. Inform them that items such as jewelry can be easily taken and pawned or sold, and they might not realize for some time that these items were stolen. Let them know that an inventory is helpful for insurance claims.
  4. Encourage elders to develop a buddy system with neighbors who can keep an eye on them and their home. Instruct them to provide their buddies with contact information for their adult children or other responsible adults. This enables the buddies to contact someone if they believe something is amiss.
  5. Advise elders to contact the police if they suspect financial abuse, regardless of the perpetrator. Advise them that financial abuse is not just a civil matter, but also a crime.

 

For more information, or to schedule an appointment, please call 425-251-8880 or email info@bethmcdaniel.com

 

First Published: September 2022