Saturday, November 24, 2007


The legal issue w/ schizophrenia is determining -- in the absence of a clearly stated threshhold in a power of attorney (and even that is tricky because the person can always revoke the power of attorney) -- at what point a person is so disabled that he or she needs some kind of governmenally approved/ordered assistance managing their money and assets and/or caring for the person.

Governmentally approved assistance includes a representative payee for any Social Security benefits or Office of Personnel Management benefits, appointment of a conservator and/or guardian (nomenclature varies across jurisdictions).

And, usually, obtaining the appointment of a surrogate decisionmaker is the easy part (although it looms large as a threshhold matter). The hard part is exercising those "helpful" powers.

More to come: Powers of attorney; conservatorship; guardianship; representative payee (SSA and OPM).

Thursday, November 22, 2007


Schizophrenia is a devastating disease. Broadly, our culture has no charitable or nurturing way to shelter those who wander and struggle with grinding mental pain. We can only help with long armed tongs. The law is both friendly and frustrating. More on the details in later posts.

For now, on this Thanksgiving 2007, I want to acknowledge those for whom the cornucopia of America is filled mostly with a few grains and some rocks.

Those of us blessed with plenty on this Day need to think of those who don't and who don't on a 24/7/365 basis. And their family who will forever need to be patient, forgive and accept the inevitable anguish and helplessness.

May we remember those least able on this day celebrating the plenty.

Wednesday, November 21, 2007


How living in community lets one live longer, better and eat more fattening foods! Look for the article on The Rosetto Effect on this web site: ELDERCOHOUSING.ORG. The links are: For the Media then Medical Research.


Peace of Mind for You and Your Family
(At least as to planning for incapacity)
Christina C. Forbes, Esq.

People of any age – and particularly people with children or assets or both – need to make arrangements for when they are incapacitated and for when they pass.

One of the greatest gifts any parent can give their child, or a spouse to his or her partner, is the peace of mind of knowing that if anything should happen, a power of attorney or a trust and a will have been prepared so that transitions are taken care of.

Power of Attorney (POA):
· A POA designates someone to act on your behalf if you are away or incapacitated
o A durable financial power of attorney allows someone you trust to manage your assets. If it is not durable, it will be useless if you are incapacitated.
§ You have complete choice as to when the POA becomes effective and who is your agent and who is your successor agent.
§ Some financial institutions require you to use their forms. Plan ahead.
§ To sell real estate your state may require a special POA and it may have to be filed with the register of deeds.
§ You choose all of the powers to be exercised by your agent.
o A health care power of attorney designates who can make medical decisions for you when you are ill or incapacitated. It also has a section or a separate document that describes your philosophy of life and how you want to be cared for under the many different medical conditions.
o These two documents provide a safety net and give a trusted friend or loved one the security that they can care for you and that you have told them what you want.
o You can also designate who would be your guardian or conservator if one were needed (in the event the POA is determined to be inadequate).

Revocable or Irrevocable Trust
· A trust is a much more powerful tool than a POA to assure that your assets and property are managed the way you want. Whether a trust avoids probate is much less important than that it assures that your trustee controls your property the way you want when you cannot.
o The trustee can also be a bank or other fiduciary.
o A revocable trust allows you to change it or eliminate it during your lifetime.
o An irrevocable trust cannot be changed except by a court, for good cause.
o Your property and assets will be managed by your trustee in accordance with your instructions in the trust.
§ You can provide for where and to whom your property will be distributed on your death.
§ You can pour all of your remaining assets into your trust at your death, through your will.

· A will is essential to distribute your property and assets to those you choose. If you don’t have a will, the law provides how everything will be distributed. You don’t need a trust, but you do need a will.
o In a will you designate your personal representative or executor, the person who will be responsible for opening probate and for making sure your wishes are followed.
o You decide which legatees will get what.
o You decide whether legatees will pay the taxes, if any, or whether the estate will pay them.
o You also decide how and where you want to be buried and who will be in charge of your funeral (if you haven’t already taken care of that).

Why plan ahead?
If you are incapacitated, either by accident or illness, someone will need to be appointed to manage both your person and your property. This involves a lengthy court process, is expensive, and can subject families to the stress of possible dispute as to who should be appointed.
If you leave no will, your family, friends and or loved ones may have differences of opinion as to who should be named the executor or personal representative (which is expensive), the law will dictate which heirs will receive distributions, all taxes and debts will be paid by the estate (instead of a legatee to whom you may convey a house subject to a mortgage, for example).
Planning ahead provides peace of mind for you, your family and your loved ones.

Lawyer or book or internet?
You can download a lot of materials from the internet; you can buy a lot of books on how to do all of these things. But, you get what you pay for.
A lawyer will help you to ask a lot of questions that you might not think of and that the books and internet sites won’t give you. Some books don’t give you very good advice. A lawyer will make sure that you have considered all of the ramifications of your choices, so that you can make choices that actually achieve your objectives.
Any lawyer? You will pay most lawyers the same amount to prepare your documents. You will get a better product, by far, by consulting with a lawyer who specializes in estate planning and disability planning.

Good luck.
On a personal note, I always have a great feeling of relief when clients have finally signed their POA and will and trust documents. They now have a safety net that is more comforting than a big broad hammock under a tree.


Christina C. Forbes, Esq.

Aging Today is Not Easy

Medicine can keep us alive much longer than ever before in history
Our lives are becoming more and more complex
As we age, our ability to process complex information declines
These are recipes for difficult days
Our culture is not set up (yet) to make aging easy
Families are more age segregated than any time in history
Many, many tragic stories; a few not so tragic, but still hard
Intestate case examples
Family infighting examples
Aging alone examples
The law sits out there, and most people don’t know what it says

I have three kinds of clients:
* Those who want to plan ahead
* Those who haven't planned ahead (and their family members)
* The families of those who have died

The Legal Tools
The law has a number of excellent tools to help pave a solid ground of security.

This security helps those who are planning ahead for incapacity (never expected).

The law has a lot to help those who are caring for those who didn't plan ahead and became incapacitated or who were born with disabilities or who developed disabilities along in life.

Finally, the law stands by at death, placing fiduciary oversight of a decedent's assets and how they are distributed.

Planning Ahead

Advance Directives
Durable Financial Power of Attorney
Durable Health Care Power of Attorney
Advance Medical Directives
HIPAA Release
If you don’t have these, your loved ones have to jump through hoops
If you don’t do it, the law will do it for you
No simple will
Must look at financial implications:
If you’re rich, worry about taxes
If you’re poor, worry about Medicaid qualification
If you’re in between, god help you (that’s most of us)
Want to think about spouse/partner, children and other beneficiaries
What is my philosophy of life?

More useful and more control than durable financial POA
Useful for segregating (and controlling) money and planning
Avoid taxes
Special Needs Trusts
Protect spendthrift children
Same dispositive terms as a Will
Choose your own financial manager

Incapacity without a plan
Guardianships and conservatorships
Avoidable, but not always: DFPOA, DHC POA
Without those, becomes a necessity in many cases
Expensive, time consuming, hard on family
Don’t confuse with “commitment”

Other Tools
Geriatric care managers
Elderlaw attorneys/local bar association
Hospice workers
Senior Centers/adult day care centers
Public/non-profit resources
Meals on wheels
Visiting Nurses
Home health aids
Area Agency on Aging
Age in place
Banks: Reverse mortgages
CCRCs, Assisted Living, Nursing Homes
Retirement savings
Long term disability insurance
Media for seniors
The Beacon
Guide to Retirement Living
Centers for Medicare/Medicaid
Many web sites
Medicare, Medicaid

If you’re a family member with aging parents or relatives, it’s often heartbreaking
Plan ahead (get them to plan ahead; careful who does the pushing and how it's done)
If you’re aging yourself, what do you do?
Plan ahead
If you have kids, Plan ahead
If you want to give money to a charity, Plan ahead
Just like raising kids, only more so
College = nursing home
Information difficulties
But, kids sort of obey; parents don’t; and it’s hard to obey oneself.