We often talk about the proverbial “crystal ball” in our office. If only we knew when our death will occur, we could wait until the last minute to get our affairs in order. Unfortunately (or maybe fortunately), very few of us receive notice that our death is imminent while we are healthy enough to take care of these things. Perhaps we receive a terminal diagnosis, but we believe we’ll “have more time” to take care of the details involved in our estate. Or, we pass away due to an unforeseen accident. The reality is we “think” about getting our estate in order but, time seems to slip away. We encourage everyone to assemble these important documents during their younger years, so when a health crisis or death occurs, there is one less stressor on the family.
Here are some helpful tips we gathered from the National Institute on Aging, as well as some of our own, that may assist you in getting your affairs in order:
1. Gather important papers and keep them in one place. Create a file and place everything in a desk or dresser drawer. Notify a trusted family member or friend where these papers are located. You also can notify your lawyer as to their location. You may wish to list the information and location of papers in a notebook. If your original papers are in a bank safe deposit box, keep copies in your home file. Check each year to see if there is anything new to add.
2. Give permission in advance for your doctor or lawyer to talk with your caregiver as needed. There may be questions about your care, a bill, or a health insurance claim. Without your consent, your caregiver may not be able to get needed information. You can give your approval in advance to Medicare, Medicaid, or your doctor. A HIPAA authorization form and/or Health Care Power of Attorney may be used to accomplish these tasks.
Q: Why do I need a Durable Power of Attorney if I own everything jointly with my spouse?
A: While you generally would have access to jointly titled bank accounts and brokerage accounts, owning everything jointly with your spouse does not give you the power to manage every asset if your spouse is incapacitated. Without a Durable Power of Attorney, you could not sell, rent or lease jointly owned property. Without a Durable Power of Attorney naming you as your spouse’s agent, you could not manage or draw upon your spouse’s IRA, even if you were the beneficiary, until your spouse dies. You cannot sign tax returns on behalf of your spouse or access information regarding his or her social security or other government related accounts without a valid Durable Power of Attorney.
While joint ownership can be an economical estate plan, it is not fool-proof. Everyone over the age of 18 should designate one or more persons to act on their behalf should they become incapacitated, with the use of a Durable Power of Attorney. Your Durable Power of Attorney can be drafted to provide your agent(s) with all the powers allowed by the State, or you can limit their power to very specific matters and time periods. The agent(s) can be given immediate authority to begin acting on your behalf, even if you are perfectly healthy, or the Durable Power of Attorney can be effective only upon your incapacity.
Small Business Week is celebrated May 5-11 in recognition of the entrepreneurs who saw a need in their community and stepped out in faith by opening a business to provide a solution to that need. These business owners are key to our economy and without their ingenuity, hard work and dedication, many of our communities would be suffering.
Small business owners hold a special place in our hearts at Davis & McCann. In fact, we’ve helped over 100 businesses get a start in Western Kansas in the past five years alone. There’s something inspiring about listening to someone share their dreams and visions to make their community better. We want to see people succeed and do well in life. Being able to play a small role in someone’s success by helping them get started with a new business venture allows us to end our day feeling content, knowing we’ve helped make our community just a little better than it was yesterday.
Fledgling businesses often find themselves full of doubt when times get tough. With so much business being lost to internet sales, local businesses often fail to see the value they are providing to community members. What are some ways you can encourage your local small businesses? Here are just a few ideas that can go a long way to keeping that entrepreneur flourishing in your local community:
1. Like, share and comment on any social media the business may post. Sharing and commenting on a post will help the information stay visible on social media to a broader audience, and potentially draw the attention of prospective new customers.
2. Leave a positive review for the business on Google, Yelp, or their social media or website. Positive online reviews help attract new customers.
2. Encourage friends and family members to check out the business. Word of mouth from trusted sources carries a lot of credibility.
3. Lend moral support. Stop by and bring a cup of coffee or a snack and let your favorite business owner know you appreciate the service they are providing in your area. Encouraging words go a long way when days are difficult.
4. Don’t expect free goods or services. Businesses aren’t open just for laughs. It is extremely common for
Elder law may not be on your radar yet. However, if you live long enough, it will be. May is designated as National Elder Law Month and is sponsored by The National Academy of Elder Law Attorneys (NAELA) specifically to draw attention to legal issues related to seniors and their families. As you or your aging parents encounter an increased need for legal and financial assistance, you will find elder law attorneys can help with a wide range of legal topics, including healthcare directives, financial powers of attorney, long-term care planning, Medicaid planning, guardianships, special needs planning, and similar matters.
You or your parents may not feel the urgency for legal guidance in any of these areas today, but with the passing of time, it will become more relevant. There is significant risk involved by waiting to develop a long-term care plan. If you wait until the point when you realize an elderly parent can no longer manage his or her money, or their health has declined so much that immediate intervention is necessary, then the pressure is suddenly on to act quickly to prevent significant losses, which often results in higher costs and more difficulty in the planning process. Rarely are optimal decisions made in high-pressure situations. Advanced planning provides you the peace of mind that in the event of something unforeseen, you have a plan in place that will immediately meet the needs of the senior. It also is especially important for adult children who live at a distance from their elderly parent and cannot respond immediately in a crisis.
What are the key questions you should ask yourself or your aging parent when considering estate planning and long-term care planning?
Attorney Megan L. McCann, partner at the Law Office of Davis & McCann, P. A., Dodge City, Kansas, recently completed a specialized Medicaid planning course focused on solutions for individuals and families.
The course, offered by Mike Anthony, JD, CMP of Edgentus, covered an extensive review of government benefits provided by Medicaid, the rules and regulations governing those benefits, and specific techniques available to attorneys to assist clients in maximizing the protection of personal assets during the Medicaid application process. Anthony is one of the foremost experts on the subject of long-term care planning in the U. S. He also is the author of the “Medicaid Planning Guidebook,” the largest textbook on the subject of long-term care Medicaid planning.
“As baby boomers enter their advanced senior years, we’ve seen a spike in the need for assistance with long-term care planning and Medicaid applications. It’s our goal to provide affordable, high-level legal care to our clients, without them having to drive halfway across the State to receive the advice they need. We’ve offered more basic long-term care planning services for the past 2-3 years, but we believe advanced training such as this, although a sizable investment for our boutique law firm, ensures we can fulfill that commitment to our clients,” McCann says.
As elder law and estate planning attorneys, Davis & McCann, P. A. provides legal services in the areas of estate planning, long-term care planning, Medicaid planning (advance planning and crisis), and special needs planning, among others. Specialized training in these areas of law is required to provide competent service to clients and ensure proper implementation of legal strategies. The advanced training acquired by Davis & McCann, P. A. will allow them to address more advanced and complicated long-term care plans for their clients. Davis & McCann are members of Wealth Counsel, a national consortium of Estate Planning Attorneys. McCann also is a member of National Academy of Elder Law Attorneys (NAELA), one of the best professional associations that educates and trains lawyers and others on elder law matters and special needs planning.
In addition to long-term care planning and Medicaid planning, Davis & McCann, P. A. offers services in simple and complex estate planning, business and farm succession planning, business formation, probate, trust administration, real estate and more. The firm represents clients in most of the counties in Western Kansas.
Aunt Ethel died a few weeks ago. Her remaining assets are fairly modest. Their value doesn’t justify going through the expense of a full probate. What’s the family to do if the beneficiaries still want those remaining assets? How can the assets be transferred to the beneficiaries without costing an arm and a leg?
Enter the Small Estate Affidavit.
In Kansas, if there is no real estate involved (including minerals) and the personal property of a decedent (a/k/a deceased person) is valued under $40,000, a Small Estate Affidavit can be used to transfer the estate assets to the beneficiaries. Small Estate Affidavits are forms used to grant authority to a person (usually an executor or beneficiary named under a Will or an heir of the decedent) to transfer and take responsibility for a deceased person’s personal property assets. However, if the value of the personal property exceeds $40,000, or if real estate is owned in the estate, a different probate proceeding will be required to transfer the estate assets.
Providing a copy of the following items during the estate planning process will assist your attorney in determining which estate planning options would best match your goals and budget. Similar to a medical professional needing access to your complete medical history, your estate planning attorney must have a complete picture of your asset holdings before he/she can make a good recommendation for your estate plan. In addition to the following list of items, you should inform your attorney if you are a current or future beneficiary of any Trust, a party in a litigation matter, or if you anticipate a substantial inheritance in the foreseeable future.
Current Estate Planning Documents:
• Copies of any currently existing estate planning documents, including any powers of attorney for financial or medical, living wills, Last Will and Testaments and any trust documents.
• Copies of your most recent statements for all checking, savings and money market accounts.
• Copies of certificates of deposit.
Investment and Mutual Fund Accounts:
• Copies of your most recent statements for all investment and mutual fund accounts.
Stock and Bond Certificates:
• Copies of all stock certificates.
• Copies of all bonds.
Starting a new business is exciting but the decisions you make in the beginning can have long-lasting impacts on your future profitability and success. If you’re ready to start your new for-profit business in the State of Kansas, here are a few basics on the various business entities available to you:
• Although arguably the least complicated way to set up your business, it also creates the greatest liability risk for the owner.
• No annual minutes are required and no reports or filings, other than income tax filings, have to be made with the State.
• With this form of business entity, the owner is 100% liable for the company debts and obligations.
Q: What happens when you own property with someone and the co-owner dies?
A: The answer depends on how the property is titled. For Kansas residents, here’s the short and sweet version of how property will transfer if a co-owner dies:
Tenancy in Common:
If the owners are “tenants in common”, the deceased owner’s interest will transfer according to his/her estate plan, or intestacy laws should he/she fail to make a plan. The surviving owner(s) will not obtain the decedent’s interest unless they receive it under his/her estate. The surviving owner will continue to own the same percentage of property, but they may end up sharing the property ownership with a new co-owner(s) after the decedent’s estate is settled.
If the property is owned as “joint tenants with rights of survivorship and not as tenants in common” and one of the owners dies, the deceased person's interest transfers to the surviving joint tenant. For the surviving owner to obtain clear title, her/she must file an original death certificate of the decedent with the Register
If the probate process confuses you, you’re in good company. Here are some common misconceptions surrounding probate:
1. If you have a Will, your family will not have to go through a probate. Not true! In fact, if you do Will-based planning, you are planning for a probate. This means your estate will go through a court process, open to public examination, before your beneficiaries will receive their inheritance. According to a 2018 EstateExec survey, on average it takes almost 16 months to settle a U. S. estate. That’s a significant wait time for beneficiaries to receive the assets you intended them to have.
2. Probate is a simple and speedy process. While this sometimes can be true with uncomplicated estates or low value
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