​Family gatherings, holidays and special events are perfect opportunities to check in on your aging loved one’s health and well-being. If you suspect your loved one may be struggling with their mental health, here are a few signs you can watch for at your next visit:
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1. Confusion, or increased problems with decision-making.
2. Loss of weight and decrease (or abnormal increase) in appetite.
3. New complaints of fatigue or insomnia.
4. Difficulty managing finances or calculating numbers.
5. A noticeable change in personal hygiene, appearance, or home maintenance.
6. Memory loss, especially short-term memory issues.
7. Depression symptoms lasting more than a few weeks.
8. A change in social habits; withdrawal from events and people they normally enjoy.

​The last of the children have moved away from home. You’re officially an empty nester! If you’re like many parents, adjusting to this new found freedom and income will take some time. Here are some great tips to keep in mind as you plan for your future:
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1. Schedule an appointment with a reputable financial planner or accountant to review your retirement plan and make any necessary adjustments to your savings and investment plan to accommodate the lifestyle you want to have in your post-retirement age. For example, you may want to lower your household budget because you no longer have expenses related to raising children, but possibly increase your personal spending because you would like to travel.
 
2. Examine your estate planning documents, old will and powers of attorney and make sure they still reflect what you want to happen if you can’t act on your own behalf. A few things you should consider: (a) Do any of your children have legal or marital concerns that might put their inheritance at risk? (b) Are any of your beneficiaries receiving government benefits, whose eligibility might be jeopardized by an inheritance from you? (c) Do you still want the same people acting as your health care or business powers of attorney? (d) If you plan to become a “snowbird” and travel out of state for extended stays, do you know if your current estate planning documents will be honored in your secondary state of residence? (e) Has your net worth increased significantly since you signed your will or trust? (f) Do you still want the same people named in your original will or trust as beneficiaries? (g) Have any deaths or births occurred within the family that would require an amendment to your will or trust? (h) Have you acquired any titled assets since you did your original estate plan (real estate, minerals, investments, vehicles, business interests, etc.)?

Q: My parents are in their early 70s and have done no estate planning. My mother has wanted to do planning for the last several years but my father refuses to discuss the subject. They own their home as joint tenants, and they have a couple of bank accounts, retirement accounts, and some life insurance, as well as their vehicles. Can my mother do her own estate planning, even if my father still refuses to cooperate? 

A: Yes, your mother can and should do her estate planning. While she may be limited with what she can do since your father is unwilling to cooperate, she can do some important basic planning. Without your father’s consent and cooperation, she may not be able to utilize the most advantageous tax saving options, but she will be able to get some very important legal safeguards in place for herself. At the very least, some basic documents that she should immediately request include a health care power of attorney, a financial power of attorney, a living will (if she wants to dictate how her end of life treatment will be handled), and, if possible, a simple will or trust.
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With a Health Care Power of Attorney, your mother will be able to appoint a person, or a group of individuals whom she trusts, to make immediate health care decisions on her behalf if she becomes incapable of making decisions for herself. Without this important document, in an emergency, the physician or hospital may require additional paperwork and permissions prior to treatment. This document becomes especially important if the emergency occurs outside your parents’ local area and your mother’s regular physician is not present. The time that it takes to gain additional permissions and paperwork could drastically impact your mother’s care in an emergency.

Q: “My mother, who resided in Kansas, died in June. She had a Last Will and Testament and owned several pieces of real estate. She told us children that we would receive an equal share of her estate. How long will I have to wait to receive my share and what situations might delay the distribution?”

A: Because your mother chose to use a Will as her estate planning strategy, her estate will require a probate action initiated by the filing of a Petition for Probate of Will with the District Court in the county of her permanent residence. Filing must happen within six months after the date of her death. Failure to file her Will within this six month period will result in her estate being handled as if no Will existed. Anyone having knowledge and access to her Will may offer it for probate at any time within the six months following her death. Usually, the Executor or Administrator named in her Will is responsible for filing the Petition with the assistance of a probate attorney. 

Your Mother’s estate may need to file a federal estate tax return. Kansas currently doesn’t have an estate tax, so no state estate tax return should be necessary, unless your Mother owned property in another state. Tax payments are due no later than nine months after the date of death. For your mother’s estate, these tax returns must be filed and paid (if applicable) no later than next March, unless an extension has been properly requested. Additionally, if your mother owned property in a state other than Kansas, a separate probate action in that state may be required.

After the Petition for Probate of Will has been filed, you generally can expect the Executor or Administrator to be appointed by the Court within 4 to 5 weeks from the date the petition is filed.

If your mother had outstanding debts due to creditors, they have 4 months after they have been notified to file their claims against the estate. Any distributions of an estate will typically not occur until after this time period has run.

Since each estate is unique, no exact time schedule can be given for the length necessary to probate an estate. Distributions to beneficiaries generally don’t happen until the estate is ready to close, but if circumstances warrant it, the Executor or Administrator may do a partial distribution prior to that time.

Some factors that may delay an estate closure and distribution can include:

1. Appraisal of real property, equipment and household items. A certified appraiser is not always available in a timely fashion, especially for rural residents. Certified appraisers are often booked out months in advance, or must travel long distances, so obtaining a quick appraisal for the real estate isn’t always feasible. If family members are contentious, multiple appraisals may be required to satisfy the parties involved, which can add to the delay.

“An ounce of prevention is worth a pound of cure.” 

You may be familiar with this famous quote by Benjamin Franklin and think advice from the 1700s would be inapplicable for business decisions in 21st century. However, our experience tells us otherwise. 

Business owners who try to act as their own attorney when entering into a legally binding document, like a commercial lease agreement, assume a tremendous amount of financial risk. Many intelligent individuals find themselves in the middle of what would have otherwise been a preventable legal or financial mess if they had only sought proper legal advice. 

Some common items that often trip up business owners when it comes to commercial leases are the exclusion or deficient use of the following clauses:

1. Attorney Fee Clause: If your contract dispute requires litigation, attorney’s fees and court costs should be paid by the person who loses the litigation. Including this clause acts as a deterrent to the filing of frivolous claims.

2. Use of the Property: Avoid surprises by ensuring that the tenant’s intended use of the property is explicitly permitted in the lease.
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3. Approval of Alterations and Signage: A commercial lease should require the landlord’s prior written approval prior to the tenant making any substantial alterations to the property. There should also be language requiring that any alterations made be in a workmanlike manner. Finally, the landlord should have to approve in writing to the tenant’s outdoor signage. This is due to the fact that many signage require making permanent alterations to the exterior of the building.

​What is the best way to revoke or change your existing Last Will and Testament? As with many things in law, it depends on your individual circumstance. Some common reasons you may wish to revoke or change your Last Will and Testament include:
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• You, a fiduciary, or a beneficiary has changed their name;
• You are recently divorced;
• You wish to add, delete or change beneficiaries;
• You have sold, transferred or gifted away assets previously included in your Will;
• You have acquired new assets you wish to leave to a specific beneficiary;
• Your financial status has changed and your estate could now benefit from more sophisticated tax planning;
• You have married or remarried;
• Your family has grown, either by birth or adoption;
• One of your named beneficiaries is now receiving government assistance for a disability and an inheritance from you may disqualify them from such program;
• Your spouse or another named beneficiary under your will has died;
• Your beneficiary’s life is unstable (financially irresponsible, drug or alcohol abuse, credit problems, rocky marriage, etc.) and you now wish to include some type of limitation or protection for their inheritance. 

In Kansas, you can revoke your existing Last Will and Testament in one of three ways: 1) Revoke your original Last Will and Testament in writing; 2) Destroy your original Last Will and Testament and all copies; or 3) Execute a new Last Will and Testament that includes a provision stating that it replaces all previous Wills and Codicils signed by you. In practicality, you also can sell or gift away all of your assets during your lifetime or set up all of your assets to transfer by way of beneficiary designations at the time of your death and nullify the effects of your written Will.

A word of caution however: NEVER, EVER destroy your original Last Will and Testament before you have

In the State of Kansas, a guardianship or conservatorship is an attempt by the state to provide help and protection for a person when that person is incapable of acting in his or her own best interest. A guardianship refers to the need for assistance with physical health, safety or welfare. A conservatorship refers to the need for assistance with managing a person’s estate or business affairs. A guardianship or conservatorship is not necessarily intended to be forever. The State’s objective is to restore the person to complete decision-making capacity and to close the guardianship as quickly as possible, according to the Kansas Guardianship Program. 
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In order to gain the legal right to assist the person in need of care, a guardianship and/or conservatorship must be filed and the Court becomes involved. The Court subsequently appoints a Guardian and/or Conservator over the person and/or their estate/property. When discussing guardianships and conservatorships, we generally are referring to one of two types of individuals in need: adults or minors.

Adult –

An individual over the age of 18 is considered a legal adult. Adults are assumed to be capable of making their own health and financial decisions unless a court determines otherwise. If a mental or physical condition renders an adult incapable of making sound decisions and acting in his or her own best interest, the court may appoint someone to make decisions on that person’s behalf. A guardian is appointed to make decisions relating to the individual and a conservator is appointed to make decisions relating to the individual’s finances. In Kansas, adult individuals are only deemed in need of a guardian if they are impaired AND there are no appropriate alternatives for meeting essential needs.

Minor –

A minor who needs a guardian means a person under 18 years of age who otherwise meets the definition

Attorney Megan L. McCann, partner at the Law Office of Davis & McCann, P. A., Dodge City, Kansas, has been appointed by the Ford County Commissioners to represent Ford County on the Southwest Kansas Area Agency on Aging sub-region council. 

Southwest Kansas Area Agency on Aging (SWKAAA) is a planning, coordinating, and funding agency providing services to older Kansans in the 28 counties of southwest Kansas. Sub-region council members elect representatives to serve on the SWKAAA board of directors and act in an advisory capacity for the board.

As elder law and estate planning attorneys, Davis & McCann, P. A. provides specialized legal services in the areas of estate planning, long-term care, Medicaid (advance planning and crisis planning), and special needs planning, among others. Davis & McCann, P. A. is a member of Wealth Counsel, a national consortium of Estate Planning Attorneys. Ms. McCann is also a member of the National Academy of Elder Law Attorneys (NAELA), a professional association providing education and training for professionals in the areas of elder law and special needs planning.  
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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, simple and complex real estate matters and more. The firm represents clients in counties throughout the western half of Kansas. 

Thinking of getting remarried? Whether you are divorced or widowed, there’s quite a few things you should consider, in addition to whether you and your new love are ready for marriage. Couples with children from previous relationships should be especially mindful of how to provide a future that is fair for both a surviving spouse and the children, should one spouse die. Here are just a few of the things couples planning a second or subsequent marriage should consider: 

Tax consequences. Depending on the planning done with your prior spouse, certain tax advantages may be lost once you remarry, such as portability of a deceased spouse’s unused exemption. You should visit with your accountant prior to your remarriage to fully understand any tax implications your new marriage will have on your tax situation.

Update your beneficiaries. How unfortunate would it be if an ex-spouse received some of your assets because you failed to update a beneficiary designation on your retirement or life insurance account? It is not sufficient to just declare your distribution plans in your will or trust. You must update your beneficiary designations to match your new estate plan. Your estate planning attorney can assist you with this step if you need help.
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Have a solid estate plan, IN WRITING. We cannot stress this enough. Put your wishes in a formal, written will or trust. If you have children, a simple will likely will not be sufficient, so look at creating a trust to address all the various needs of your blended family. Include a distribution list of personal items such as jewelry, photos, heirloom dishes and keepsakes. Without a written directive, your family heirlooms may not be passed along to your next generation, even if that was your verbal request. This is a great time to talk with your children about what items they consider emotionally important to them. Having a written plan, such as a prenuptial agreement, is one of the best ways to begin a secondary marriage. A prenuptial agreement will specify what is “yours”, “mine”, and “ours” and what will happen to the distribution of those items upon divorce or death. Because this agreement transpires BEFORE the marriage, much of the stress 

You’ve been named as a beneficiary of someone’s Last Will and Testament! What does that mean and what can you expect?

As a beneficiary, the Grantor of the will named you to receive something from their estate. It could be anything from cash, stock, investments, real estate, minerals, or a personal possession. An Executor is the person the Grantor named to be in charge of managing estate assets, paying estate bills, working with the estate accountant and attorney, distributing the estate assets, etc. This is the first person to whom you should address your questions about the estate. As a beneficiary, you have certain rights in the probate case. Here’s a few pointers on what you can expect from the Executor and the probate process:

Executors have fiduciary duties and must put the interest of the estate before their own personal desires, even if they also are a beneficiary of the will. Although Executors are required to act prudently, many Executors lack the skills or knowledge they need to handle an estate administration. Without professional guidance from an experienced attorney, Executors can easily mishandle an Estate and be subject to monetary and legal ramifications.

Executors must:

1. Put estate beneficiaries’ financial interests above their own;
2. Protect estate assets by preserving their value until final distribution;
4. Be impartial toward all beneficiaries regarding distributions;
5. Follow the instructions given in the will;
6. Keep good financial records of all estate account activities and provide a copy of these records to beneficiaries upon request;
7. Pay estate bills and beneficiaries when deemed appropriate by the Court or according to state law (creditors are paid before beneficiaries, so final distribution amounts may be lower than what is stated in the will); and
8. Communicate with creditors and beneficiaries pursuant to state law.

Executors cannot: