"Estate Planning Essentials for All Souls' Day", Hosts: Frank Hemming and Patty Whelan

November 2nd, 2024. 

Episode Transcript

Speaker 1 (00:00):
Good morning, everybody. This is Life Happens Radio, our weekly
radio program where we talk about estate planning and aging
and what happens if you're not well. So our program
it's for baby boomers and your families, where we address
the challenges we all face as we age. We talk
about aging as a lifestyle, the issues that must be confronted,

(00:20):
and the careful planning that's required to avoid crises in
the future. Will provide you with the tools to educate
and prepare yourself for events like retirement, protecting your income
and assets, planning to pay for a nursing home and
home care, planning for special needs, creating wills and trusts,
and planning for an untimely death, and resolving disputes in
and out of court. As the laws and necessities for

(00:42):
planning and care continue to evolve, Life Happens will help
you make smart decisions to ensure that your goals are
met as long as those of your family. So again,
welcome everybody, Thanks for spending your Saturday morning with us.
I'm Frank Hemming. I'm one of the partners at Pierre
O'Connor and Strauss. We are a full service elder law firm.
Located in Latham and in studio. I have not a

(01:02):
new guest of the show, but a new guest with me.
I have one of our associates, Miss Patty Whalan.

Speaker 2 (01:07):
Hi Patty, Hi, Frank, good morning.

Speaker 1 (01:09):
How are you.

Speaker 2 (01:09):
I'm good? How are you?

Speaker 1 (01:11):
I'm good? And I'm glad to be doing the show
with you, I say, because we haven't done this together before.
So I always warn the co hosts, like, when I'm hosting,
you have to keep an eye on me, because like
you can't give me too much power. So if I start, like,
you know, veering off course, you got to help you.
All right, Okay, So how was your Halloween?

Speaker 2 (01:30):
Oh it was good. It was good.

Speaker 3 (01:32):
It went by very fast, but it was a good Halloween.
I was pleasantly surprised by how warm it was this year.

Speaker 1 (01:39):
Yeah, that was the everybody. Like when I was out
with my daughter walking around our neighborhood, like everybody was saying,
how like last year it was like very cold, and
certainly like once the sun went down, we were all
like freezing, and then this year we were all like
sweating because it was like pushing eighty degrees like depending
on when you were out walking around. But no rain,
and the kids obviously got a great day and stuff,

(02:00):
so that was good. And I was thinking, because you know,
we're gonna get into some serious stuff. But like I
think my wife and I were talking about this a
few weeks ago. So I'm assuming you've seen Nightmare before Christmas.

Speaker 2 (02:12):
I have. That's a great movie.

Speaker 1 (02:14):
Okay, so Christmas movie or Halloween movie.

Speaker 2 (02:16):
Oh, that's kind of hard.

Speaker 3 (02:18):
I would make the argument that it's a Halloween movie, honestly.

Speaker 1 (02:21):
Yeah. See, I think it's more of a at least
it's been a little while since I've seen it. I
was thinking it's more of a Christmas movie. So, like,
I don't know, Like I feel like we have to
get to the bottom of this debate because like I
don't know if anybody really knows the answer.

Speaker 3 (02:34):
Yeah, I mean, I would say it's more of a
Halloween based movie, even though Christmas is in the name
and it kind of you know, the plot you know,
revolves around kidnapping Santa Claus. But I just think the
undertones of the movie are more Halloween to me. But
I think I feel that way about all the Timberton movies,
you know, in a weird way.

Speaker 1 (02:53):
No, it's probably a good point. Yeah, it's there's definitely
like shades of gray in there for sure. So so
all right, so maybe like next time we're on, maybe
we'll have watched the movie between now and then we'll
report back on like whether whether you whether you still
think that or so. So like when I when I'm
on the show, I kind of like to coast in
to to things a little bit. I like to talk

(03:14):
about things about the officer or real life. I tend
to focus on celebrity deaths and things just because I
find them noteworthy. They're they're normally very you know, sad,
because they impact a lot of people. I haven't seen
anybody recently of real big note that passed away, So
if if anybody did and I missed it, then obviously
I apologize because I was I was looking at the

(03:35):
internet this morning, so instead of of saying, like, hey,
the celebrity died and here's like what we think about it.
I do have a case or two that came into
the office this week that I kind of wanted to
talk about. And then if you've got any Patty, I'll
kick it over to you, kind of putting you on
the spot. So if you do, you do. If you don't,
you don't. But I had a consult with a family, uh,
just yesterday, and and I'm not going to give all

(03:58):
the details away for obvious reasons, but more than anything,
it I think the the moral of the story so
far is having a plan, like it's a big deal
and you should have a plan because if you fail
to plan, things, you know, can get very messy, very quickly.
So I was talking with a family. So there are
five children. Both parents are still alive. Unfortunately, Dad is

(04:22):
having some pretty significant cognitive issues and he also had
a recent fall and things, so so he's not doing
well at all, and I'm not sure that he's in
a position really where he's going to mentally be in
a place to do much planning for himself at this point.
That's at least the impression that I got. Mom, on
the other hand, is also having some issues, but it

(04:43):
sounds like they're much more centered around the fact that
she has to care for her husband rather than she
has them herself. So we're kind of hoping that like
Mom can do some things if we you know, if
we want to, if we want to do some planning,
that Mom can do some things. And then maybe if
we get dad settled, mom will kind of stabilize a
little bit. So the issues are this, the mom and

(05:03):
dad I guess retired. I don't know whether they're from
there or they're retired there, but that they live in Maine,
which not exactly close to the capital district. And while
they have you know, five children, and four that were
on with me are all very loving, very supporting, clearly
all want to be involved with their parents care like
none of them live in Maine or close to Maine

(05:25):
like at all. And now we've had these health issues
croup up for dad, and mom's been struggling. And if
that wasn't bad enough, the one of the children, so
the fifth child that was not on the meeting with me,
has some special needs and can't really take care of
herself or at least not not entirely. So up until
this point right there hasn't been much done with planning

(05:49):
with documents or a trust or anything. And now we've
got you know, Dad with cognitive problems, Mom not doing
super well, special needs child who's forty and is an adult,
and now they're trying to move Mom and dad to
now get them closer to everybody more to like this area,
and there's just so many moving pieces because like they've

(06:11):
got a house that they have to sell, so that
has implications and we have to look at whether we
can do that once the house sells. We have to
deal with the money, because if we're talking medicaid, we
can't just you know, PLoP money in their accounts without
thinking about how that's going to go. There's a guardianship
proceeding that's going on in Maine for the daughter that
may have to conclude in Maine before they move her.

(06:33):
So I mean, there's just a lot of moving pieces,
and you know, I don't bring this up to you know,
in a negative context other than to say like this
is like kind of the mess that can happen if
you don't take some steps proactively when things aren't as bad.
That's all. It's not that there's nothing that can be done.
You know. I did lay out some options. We're going

(06:53):
to kind of see how the family feels once they
kind of have a meeting and come together and talk
about what they want to do and ultimately how they
want to proceed. But it's just there's there's there's a
lot of danger in there, and it sounds like, now
that everything's kind of on fire, we're going to try
to deal the best way we can. But just some
of it could have been avoided if they had gotten
out in front of it a little earlier.

Speaker 3 (07:14):
So right, right, So if you met with them, you know,
five years ago, what kind of planning would you have
suggested for them to kind.

Speaker 1 (07:21):
Of that's a really good question. And now so, I
mean the easiest one. I mean, their biggest asset is
their house, so irrevocable trust would have been really good
to discuss, you know, cognitive issues aside of whether that
could have been done. But you know, let's let's just
pretend right everything would have been fine. Certainly a near
vocable trust should have been on the discussion list, making

(07:44):
sure they have powers of attorney, health care proxies, like
all their ancillary documents, you know, things that we're going
to talk about today should have been would have been discussed.
And then if there would have been any need for
guardianship work for their daughter at that time, you know,
that certainly could have come up. You know, if she's
you know, so five years ago, she's approximately forty ish now,

(08:05):
so she would have been approximately thirty five you know,
she's certainly an adult. If she's not well enough herself
to sign her own documents, somebody would have to be
appointed by the court to make her decisions. There also
could be discussions on whether there would have been backup
agents on any guardianship orders or not. I think I
have seen them in both cases where there are and

(08:27):
sometimes there aren't, so so I mean that's just you know,
those are the easy things to come to mind. And obviously,
if if they had been in New York and they
had done some things, you know, we'd now probably be
talking about medicaid, you know now there Since they're not
in New York, there wasn't much we could talk we
could we could talk about with with medicaid for New
York purposes yet because they're not here. But but yeah,

(08:48):
there's certainly some things that that would have at least
been discussed. Now whether people whether they would have gone
for it or not, that's always the client's ultimate choice,
but that would have been some options to talk about,
for sure. So really good question. The other case that
that I'm dealing with, no again, like it's see, and
I didn't want to put the first family in the

(09:09):
light and say like, this is what happens when you
don't plan, because now I have my next story goes
to somebody who actually did some planning, and it's still
not going quite to plan, and we have other things
to do. So in this case, I have a I
have an elderly gentleman. He's a he's a really really
nice guy. He's he's I think he's like eighty six
or eighty eight. I mean, he's he's getting a little

(09:30):
up there, but he's still fending for himself. He's still driving,
he's still taking care of himself. You know, he's doing
really well himself, but his wife is not. And his
wife wound up in a nursing home quite a few
months ago at this point, and he's been paying for it,
and he wanted to come in and talk about some
alternatives to you know, writing checks for sixteen thousand dollars
do the nursing home that she's in. And the unfortunate

(09:53):
part with this one is he has a trust right.
He did he did a trust right. So he did
some of the things that we normally talk about that
you want want to think about and do and get
out in front of the problem is they did it
four years ago and there's a five year look back,
so we're not through the five years yet. So in
that case, we have to talk about, you know, what
the alternatives are of trying to get care in place

(10:15):
when we're not through the five year look back. You know,
he's he's in a position where he has other funds
to pay for a year if we want to do
that to get through the five years. We also discussed
maybe blowing up the trust and kind of undoing it.
That there has you know, some risks involved with that.
And then the other thing that, again I think make

(10:35):
this noteworthy besides what we've already talked about, is there
are also other gifts that Dad has made to family
members in the past five years because he has grandchildren
and he clearly loves them very much, and he wanted
to be a good grandpa and he wanted to help
them out with like college and things. And he was

(10:56):
giving his son money to help pay for college. And
while it's a great intent, you know, it's a great
thing to do, especially if you can financially do those
kinds of things. Now there are consequences to it, because
he's been kind of staggering those gifts over time. To
help make college payments, and now that's all going to
get thrown in the hopper and the medicaid scenario. So

(11:17):
so again like there's an option or there's a there's
a quick story of someone who's done some things, done
some planning, and now just there are now some wrinkles
that have to be ironed out. So so with that,
we're probably right at the spot where we probably should
take our first break. So why don't we do that.
We'll let Zach take us a break, stay with us,

(11:38):
we'll come back. We'll start talking about our topic for
the day, which is All Day of the Dead or
All Souls Day, So we'll talk a little bit about
about that when we come back. Right after this. I'm
Frank Hemming partner at Pier O'Connor and Strauss, still joined
by Patti Whalen. Hi. Yeah, glad to be here. I

(11:58):
made a run for the door. You stop. No, I kid,
I kid. I enjoy doing the show. I question whether
it's always a good idea to let me do the
show doing the show. So I mentioned before we went
to that break, it is a it's kind of a holiday.
I think it's maybe a lesser known holiday. Yeah, and
it doesn't seem like one of those made up ones,

(12:20):
you know, because like every day there's like, you know,
five different holidays, like it's National craft Macaroni and Cheese
Day or something like that. Right, but that's not a thing, right.

Speaker 3 (12:28):
I think yesterday was actually like love your Lawyer Day
or something. Right, Yeah, I think so, man, I know
we missed it.

Speaker 1 (12:38):
Well, we love our lawyers and hopefully our clients love us.
So today is like I said, it's it's Day of
the Dead in Mexico or Mexican countries, and it's all
all saints. There are all souls day, sorry, in the
Catholic faith. So those are traditionally days. Because I did
do a little bit of research on this, where where

(13:00):
you know, people gather as families and they remember people
that have passed on, whether that means throwing parties or
I know in some places they actually build like an
altar in their house and they bring either stories or
food and they offer them in remembrance of the people
that have passed. And I found a quote in this

(13:21):
news story that our marketing team helped put together for me,
and it said people are really dead when you forget
about them. And if you think about them, they are
alive in your mind, they are alive in your heart.
And I was like, Oh, that's really touching.

Speaker 2 (13:33):
That is really touching. That's touching. That's almost actually.

Speaker 3 (13:36):
The plot of that one, that one animated movie.

Speaker 1 (13:40):
Yeah, I think it's Coco.

Speaker 2 (13:42):
Yes, that's a great movie. I really love that movie.

Speaker 3 (13:45):
But I think that's the premise of that movie, where
if you start to forget about them, they start to
disappear and then actually really be gone.

Speaker 1 (13:52):
Yeah. So I have a four and a half year
old and so I'm sitting with her at Breck this morning.
And I'm probably gonna get this wrong now because my
brain barely functions these days. But so I'm sitting there
eating breakfast with her and she looks at me and
she says, Dad, can you can you put on? Can

(14:13):
you put on something for me?

Speaker 3 (14:14):
Right?

Speaker 1 (14:15):
So it means you wants something to put on the TV?
And I said sure. So I said sure, honey, Like,
what what would you like? And I was expecting like
Paw Patrol or you know, one of like the Staples,
and she said, uh, Baranto. And I was like, what's Baranto?
And she was like a movie and I was like, okay, what,

(14:36):
like what what's the like is it on like Disney,
Like what is it? Because I'm trying to think, like
what is she talking about? And she goes and she
looks at me, and I think I got the She's like,
they have a house and and there's a crack in
the house. And I was like, oh, oh, oh in
conto and that's what it was, right, So it was

(14:57):
in a conto, not baranto. And she said that she
laughs and she goes, oh, it's hard for me to say,
and he was like, oh, that's very cute. You're right.
So it turns out, yeah, you're right. I should have
made her watch Cocoa this morning and said, you know,
Daddy needs to do some research for the radio show. Yeah,
because I was actually thinking that, but I don't think
I've seen that movie all the way through. So I'm

(15:18):
glad that you seem to think the same thing, because
now if we're now at least if we're wrong, we're
both ros. So obviously, when it comes to thinking about
people that have passed, I think it's I think it's
logical that people think about like what happens like when
I pass, which is like super depressing, but that's that's

(15:39):
kind of like in the nature of what we do unfortunately.
So so one of the things that we wanted to
talk about today was to give some tips and tricks
for people, you know that if you haven't done planning,
or you haven't done planning in a while, to kind
of keep in your mind of of you know, thinking
about that way when time come, when the time comes,

(16:00):
than when you pass and maybe you're being honored on
a similar day in the future, that your family will
be put in a good place, your assets will go
where you want, and things will just you know, be
handled as you wish. So so we did find an
article and I have a few others because I think
we're going to get through this relatively quickly, but we'll
see how we do that. Has some other things that

(16:23):
I think will be interesting to talk about if we
have time. But so first, first, first thing on our
checklist here is one is to choose your agents. So
so let me let me set the stage here, Patty
for you a little bit, because like the lawyer in
me wants to say, like, sure, that sounds like a
good number one, but like I'm not sure. I think

(16:44):
that might be jumping the gun just a little bit, right,
because you have to be willing to even create the
documents to have the agents appointed. So you can't just
choose your agents if you're not going to actually follow
through and do the documents. Right, So slight technicality there,
But like, let's pretend someone's wanting to do their planning.

(17:05):
They haven't done anything before. They come in to see
people like us, and we talk to them and we say,
all right, have you done anything before? Okay, you haven't.
All right, let's start from Let's start easy. So one
of the documents we talk all the time about is
a power of attorney. So, Patty, why don't you tell
our listeners, just in case there's anybody out there who
isn't familiar with what that is, tell them what that is?

Speaker 2 (17:26):
Sure?

Speaker 3 (17:27):
So, a power of attorney is a document by which
you're appointing an agent or agents to make financial decisions
for you in the event that you're no longer to
you're no longer able to make them for yourself, or
you need help making them, and so in this document
you typically can give your agent a bunch of different powers.
They're typically very broad and they cover things like banking,

(17:51):
tax planning, businesses, things like that. And within this document,
you can appoint, like I said earlier, an agent or agent,
so you can have multiple people act as your agent.
You can have just one person act as your agent.
If you do have more than one agent, you also
have the option of having them act either jointly, so

(18:11):
you know, if you both if you want them to,
you know, have to go to the bank together and
sign the same documents at the same time, you would
have them acting jointly, but I think more commonly we
typically have them act separately, you know, And this provides
a little bit of flexibility for your agents, especially if
they live, you know, far away or they have very
busy lives.

Speaker 1 (18:31):
Yeah, so let's let's unpack that a little bit. So
everything you said is right spot on, so so great job,
you know, A plus for Patty. So certainly it's a
document everybody should have. Like I met with a I
met with a couple yesterday and they they talked about
how they had gone to an attorney a long time
ago and they were all ready to do all all
some of the stuff we're talking about, and then they

(18:52):
never followed through on it, Like they kept trying to
get in touch with that office, and then they didn't
get back to them, and then like twenty years went
by and they were like, oh yeah, we never actually
sign anything. Now Luckily nothing happened in the meantime where
I guess anything was necessary. But you know, plenty of
people don't have just even what we consider, you know,
to be relatively simple documents that are just very important.

(19:13):
So your power of attorney is your document that says
you can do financial things. And Patty's one hundred percent right,
there's a whole long list on that document where basically
anything financial in nature you can think of is in
a really long list. And generally it's it's, you know,
most of the time going to be our recommendation that
your agents get all of those powers because we don't
like picking and choosing. I have seen not often, thankfully,

(19:37):
but I have had cases in the past where someone
went to a different office, you know, maybe didn't get
the best advice or at least didn't make all the
you know, didn't consider all the things that could happen,
and they started picking and choosing powers and they didn't
initial some of the ones that we actually needed, right,
And sometimes that could be Sometimes it might be uneased,

(19:58):
they might not feel comfortab but with someone doing those things,
it also could be like, well, I own it a part,
you know, I don't own any real property I rent,
so like, why would I want to give somebody the
power to do a real estate transaction for me? It
doesn't apply to me. But that doesn't mean that like
you may never have a piece of real estate in
your name. Yeah, right, you could buy a house, you
could inherit a house or something like that. So I mean,

(20:19):
sometimes I think it could be just as simple as
something simple as like, well, it didn't apply to me
when I did it, so I didn't do it. And
obviously a big consideration whenever we talk about this stuff
is a lot of it's updateable, just about all of
it's updatable, but you have to have your capacity to
do it. So in the instances where we've had documents

(20:40):
that maybe don't have exactly what we want or how
we want it, if the person's competent, we can just
update them, you know, we can give them better ones
that will accomplish what we need. But sometimes people don't
have the mental capacity at that point to update them, right,
and then we're putting a really sticky situation as to
what we do. Yeah, so let me ask you this,

(21:00):
and I'm not trying to again, I'm not trying to
put you on the spot. Have you seen a lot
of or have you done a lot of power attorneys
where people are acting jointly. Have you seen a lot
of that?

Speaker 3 (21:10):
I feel like I typically see those more in situations
where you have blended families. So I think the most
common way we see is we have you know, husband
and wife. They're each other's primary agent. But then the
question of who should be you know, their success or agents,
I think is more of a talking point. And you know,
sometimes if they have blended families, so they have step

(21:31):
kids or you know, they have kids that maybe be
you know, wide and age. Sure, you know, sometimes I
feel like in those scenarios they appoint agents to act
jointly one, you know, maybe to balance each other out
and to also perhaps provide guidance to someone who might
be a little bit younger.

Speaker 1 (21:47):
Yeah. No, And I think that's a good example. I
tend to I don't see them very you know, I
don't see that arrangement very much, and I pretty actively
counsel people that that's probably not the best way to
do things. That doesn't always mean that we don't do
it that way. It just they have to make some decisions.
And it's not usually because I don't think people would

(22:11):
work well together. Right. One of the questions we typically
ask clients when they're talking with us is you know,
if you have multiple people that you want to appoint together,
is do they get along? What's their relationship?

Speaker 3 (22:21):
Like?

Speaker 1 (22:22):
Because if people don't get along, if they don't like
each other, then we should not put them together for
obvious reasons, but just from an ease standpoint, you know,
making more than one person act on your behalf at
one time, like unless like they live together, they live
in close proximity, they both have similar working lives, home lives, Like,

(22:42):
there's just so many things that can complicate someone's ability
to be able to do things right when it comes
to needing more than one person. That again, I'm not
saying you can't do it, I'm just saying it's something
that should be considered.

Speaker 3 (22:53):
Right.

Speaker 1 (22:55):
And then obviously on this document and on any other
one where we typically as clients we always want some
backup people. Yes, Like again that family I spoke with yesterday,
they have they have two daughters. One daughter is doing well.
The other daughters is okay. She's kind of struggling along,
but you know, making headway on some things. And I said, well,
you don't, you know, you only have one grandchild. They're

(23:17):
very young right now. You don't seem comfortable putting one
daughter on these which is fine. So if you're going
to put yourself or your spouse and then your daughter
who you do trust, if something were to happen, you
have to consider what happens if something happens to your daughter,
right right? Because because spouses typically don't go together, So
what happens if your daughter that you do like and

(23:37):
trust to handle this can't do it either, yea. And
the look on the mother's face like I actually felt
really bad, and she said, you know, I hadn't really
thought of that. And just the thought of something happening
to to one daughter, if not both, potentially how we
structure this is, you know, is heartbreaking. I said, Well,
part of my job is to say terrible things. It's

(23:58):
not because we like to, it's not that we want to,
it's that that, unfortunately, is something that you have to
consider because something could happen to your agents you know,
if they're younger, if they're in good health. Obviously the
likelihood of that happening is pretty remote, but it's also
not something that we can completely ignore and pretend like
that isn't a possibility. So so on that uplifting note,

(24:20):
we're just about up to the news. So I want
to thank everybody again for being here on this Saturday.
It was raining on me coming down the North Way,
so it might it might not be, you know, the
best day to be outside. So if you're by your radio,
we do appreciate it. So why don't you stick with us.
We will get out of here for the news. We'll
be back after the break and we'll talk more about
Day of the Dead. I'm still Frank and I'm still

(24:42):
here with Patty. Thanks for sticking through the news. So
we're talking uplifting things about like when people are gone
and remembering them and doing some planning so that way
when you're gone, your stuff gets taken care of. So
we were talking a little bit about powers of attorney
and things before before we went to break, and talking
about your agents and Patty, you did a great job
with that. So our next document that I think we

(25:04):
should talk about quickly is a healthcare proxy, so that
documents the document that says who can make health care
decisions for you if you cannot for yourself. We also
incorporate our living will language, which talks about you know,
end of life and whether you want to be kept
alive by artificial means yes or no, or if you
have other specific wishes, those types of things. And the
big thing with this one that again we don't we

(25:28):
don't do it in our office, but I have seen,
unfortunately from from documents that people maybe prepare on their
own or they get somewhere else. So if on this one,
if you're picking people, you can pick however many number
of people in line that you want, but you can
only have one agent at a time. So, so, Patty,
when you're when you're with clients, right, do you do

(25:49):
you get any like unease or anything like from clients
when you tell them they can only pick one person
for this. I'm just curious, not.

Speaker 3 (25:56):
Really, honestly. I think once you explain to them the
logic and the reasoning behind why you can't have you know,
more than one person acting at the same time, you
know it makes a lot of sense to them because
you know at the end of the day, you don't
want there to be any potential fighting or conflict when
it you know, a really hard and usually a quick
decision needs to be made about your health or you know,

(26:16):
other medical related things. So not really Actually, yeah.

Speaker 1 (26:21):
I agree. It's funny because I feel like, and I
don't know if this is true like in actuality, it
might just be true in my head, but I feel
like the power of attorney sometimes people are much more
comfortable with like one and like one person, but then
when we get to the healthcare, you know, before we
can kind of go through it can only be one
person at a time because legally that's what you can

(26:42):
do here. I feel like a lot of people want
to put like multiple people on that one, and I
just think it's interesting because it's like, well, you didn't
want multiple people in your finances to like spread out
responsibility and stuff, but when it comes to your health decisions,
you want multiple people being able to make call the shots.
Like it just as interesting. So for that one, you know,

(27:03):
and I feel like I should say this, So if
you don't have a power of attorney and you lose
your capacity, right then you have to go talk with
somebody like Aaron Connor, our litigation partner, about something called
a guardianship. And I always joke that, like, Aaron's a
nice enough guy most of the time, but if you
had to meet Aaron, you don't really want to be
doing it in terms of needing a guardianship, because that

(27:25):
work can be very difficult. It certainly can be stressful,
it can be time consuming, it could be expensive. Like
there's a lot of things in there that you don't
really want to do. So in the lack of a
power of attorney, there's very little that can be done
other than guardianship. For healthcare decision making, there is an
act on the books that talk about who can make
medical decisions in certain settings, mainly institutional settings, if you

(27:48):
don't have an appointed agent, So like if someone's in
a hospital or a nursing home, there are people that
can kind of jump in line to make decisions if
there's not a proxy. But there's so many other times
where decision might have to be made where there's not
an institution involved, where technically that law doesn't apply. I
just want to, you know, make it known you're not
completely as bad off as maybe you would be. Financially

(28:10):
without the documents. But you know there is a little
bit of you know, like support behind you. We could
put it that way. One of the issues though, if
you rely on the on the law is that they
don't they don't put priority on the level of people.
So like spouse is typically first, right for obvious reasons.

(28:32):
Kids are typically then next. But it doesn't give priority
to like any specific child, right. It doesn't say like
the oldest child or the youngest child, or like the
one with the highest test scores, or like the nurse
or like what you know, whatever it is. So sometimes
you know, if you have multiple kids, it could be
like the first one that made the call to the hospital,

(28:52):
and that might be the most responsible one. They were
the one that was called the hospital. But like, we
also have plenty of instances where children are like meddling
or trying to get involved where they shouldn't be. So
it's all the reason to get your your documents in
place and get your agents appointed. So third one that
we talk a lot about is something called the disposition
of remains appointment. So why don't you give a rundown

(29:14):
on that one, Patty?

Speaker 3 (29:15):
Sure, so this document, you know, takes effect after you
pass away, because it's appointing an agent to you know,
control and decide what happens to the disposition of your remains.
And so similar to the healthcare proxy, you can appoint
as many people as you want, but you can only
have one person acting at a time. And within this document,

(29:37):
you can also include special instructions. So if you want
to be cremated, or if you want to have a
traditional burial, I had some woman who wanted to be cremated.
She wanted her ashes to be put into a bottle
of wine, and then she wanted her agent to center
over Niagara Falls. So you can, okay, so you could
really put in, you know, in the special instruction and

(30:00):
kind of whatever you want. I mean, it's up to
the agent to do their best to try and make
that happen for you. But you can get kind of
creative with what you want to happen, you know, after
you pass.

Speaker 1 (30:10):
Yeah, I've had I've had some interesting ones. I have
had some people that wanted to be cremated in their ashes,
like pressed into jewelry. Not many, but I have had
probably two or three that I've wanted that green burials
or more natural burials are becoming a little more common.
I've had a few of those recently. Yes, a lot
of people, I think generally are still either they haven't

(30:31):
thought much of it and they just want to make
sure that someone's appointed to make the decision. Or so
it could be as simple as you know, buried, cremated,
and then you know, ashes buried or ashes spread, you know,
that kind of thing. It doesn't need to be more
than that if you don't want it to be, you know.
I usually the example in the in the consult that
I use is like, you know, if you want to

(30:52):
go to space, yeah, right and get spread amongst the stars,
you can put that Like most people laugh, but it's
like that you can do that, like I think, I
think Kristin and I we're on a show once where
we talked about that. Now it's surprisingly more affordable than
you'd think. But you can do all kinds of stuff.
It's really your decision. We just want to make sure
that like whatever you want is hopefully going to happen,
or at least you're gonna have an agent that's going

(31:13):
to try to make it happen. That's the point. So
and then the last ones are your will or your
trust whereich are the documents we put together to talk
about where your stuff goes ultimately when you pass. So
if we're doing a trustee, or if we're doing a trust,
we talk about a trustee. If we're doing a will,
we're talking about your executor. Most of the time, these
are going to be the same people that you put

(31:33):
on your power of attorney, if not yourself. In certain context, right,
if you do a revocable trust, you can be your
own trustee, So you know, why put someone in place
on your behalf if you don't want to when it
could just be you. That's the easiest age appointment you
can have. You just pick yourself. You should have backups
just in case something happens. If it's an irrevocable trust,
clearly then as we talk about a lot on this show,

(31:54):
you can't be your own trustee in that context, So
you'd have to pick someone or some group of people
and yourself to manage the assets. And once you're gone,
clearly your executor can't be you, right because you're gone.
But a lot of times again this would mirror the
power of attorney agents because at the end of the day,
it's it's people making financial decisions, and if there's if

(32:15):
they're empowered with the POA, right, there's usually a lot
of overlap between anything that the POA is handling versus
whatever the trustee's handling or the executor's handling at death.
So a lot of time I think people try to
make that as easy as your transition. But again this
is up to you. Right, if a guy had to family,
I just executed their documents yesterday. They had their son

(32:36):
on as their agent on their POA, and their their
first named executor was their daughter. And they said, you know,
they wanted to put her first on something, and they said,
like she weirdly always said she wanted to take care
of that. So that's what they did, right, It's their choice,
nothing wrong with it. And I said, I said to
their son, I said, if anything, if you're good, if
there's a job that maybe you don't want to have

(32:58):
in all of this, that might be the one you
don't want. It's like so and maybe in their own way,
mom and dad are actually kind of doing a solid
because like go into courts, the one that like can
be a little onerous and that could be your sister.
So so so that was our first That was our
first item on our checklist. So we'll move a little
faster on some of these other ones. So second one

(33:19):
is list your assets. I think it makes sense right
figure out what you have. Yeah, my caveat here, And again, Patty,
I want you to chime in here. So I think
it's surprising how many times people will come in. They'll
they'll if they've done their homework, they'll we already kind
of have a list of their stuff before the meeting.

(33:39):
That way we can kind of review things before we meet.
That way we kind of know what you're bringing to
the table. My caveat here is not only know what
you have, maybe you have some idea of like who
you want to get the stuff that you have. So
so again, just in your practice, how often are you
sitting with people where like when you ask them how

(34:00):
do you want things to go? Like, how often do
they not really know that answer?

Speaker 2 (34:05):
I feel like it's fifty to fifty.

Speaker 3 (34:06):
I mean, so you do have like some traditional families,
so you have mom and dad and then they have kids,
and most of the time, maybe fifty percent of the time,
if not a little bit more, they're just okay with
it at being you know, split equally amongst their kids,
however many kids they have. But other times, you know,
some people don't have kids, or they don't have people
that are close to them, and you know, they haven't

(34:27):
really thought about who they want their beneficiaries to be.
So it definitely depends on the person and their circumstances
and the people they have in their lives. But I
think I think it's a it's a toss up.

Speaker 1 (34:39):
Yeah. The one that I think I see it more
because I did this. I did this to people yesterday.
Uh not on purpose, obviously, but you know, again, we
have a we have a relatively small family, right, we
have parents, and we have children. And I said, well,
what if one of your children dies, right, does that
child's portion go to their children, your grandchildren, or does

(35:00):
it go somewhere else?

Speaker 3 (35:01):
Yeah?

Speaker 1 (35:01):
And one spouse said, one hundred percent, grandchildren all the way.
Don't need to talk about it further. Other spouse said,
what are you talking about, Like, not all of them
have kids. You wouldn't want to give it to the
to the spouse and it was and like you know,
they had a pretty fast discussion and kind of came
to a consensus of what they were comfortable about, but

(35:23):
they clearly hadn't talked about that part, right, And for
a second or for a minute or two, you know,
one spouse was on one side and other spouse was
on the other, and I just got to sit back
and just kind of see what was going to happen,
because ultimately it's not our job to decide this, right,
This is up to the clients, and we're just trying
to give advice and counsel and options. Yeah, and I said,

(35:47):
you know, pretty frankly, you can pick whatever you want.
It's not common to leave it to spouses, but you
can have your own reasons for maybe wanting to do that.
You know, in that case, the reason why the spouse
had got brought up was because there were grandchildren from
that particular child. And it's like, well, if there is
a I would say a common or a more common
time where in laws are included, it's because there aren't

(36:09):
any grandchildren from that particular like, you know, part of
the tree. So made sense of why, you know, spouse
had thought that. It also made sense of why other
spouse was so strongly against that and said, you know,
stays in the family goes to either children or grandchildren.
We're not we don't need to talk about this anymore,
but then we did have to talk about it. So

(36:30):
so all right, last thing and then we're going to
take our last break, just because I think this is
very quick. Is the other The other thing right after
it says list your assets is list your debts. Probably
it goes more in line with again like know what
you have and know what you don't have. So like,
for instance, like if you say, well, I have a
house and it's worth five hundred thousand dollars, well that's great,
But if you have a you know, if you have

(36:51):
a mortgage on it for like ninety five percent of
the equity, right, that's going to change maybe the plan
the recommendations are ultimately like what's going to happen if
there isn't really that much money that's going to filter
into the trust, the estate whatever after it's sold because
you got a mortgage on it.

Speaker 2 (37:06):
Yeah.

Speaker 1 (37:06):
So and I again, like I was just speaking with
a family woman was surprised at how large her mortgage
still was. Like she knew she had it, yeah right,
and she knew that it wasn't like real close to
being paid off, but you know, it was probably I
don't know. If I had to take a guess, it
was probably fifty to one hundred thousand more than she thought,
which I mean, again, it's gonna get handled over time.

(37:30):
It's not a concern right now. But like, I don't
think she really had much of an idea. So not
only know what you have, but no, maybe like what
maybe you don't have to all right, So with that,
let's take our last break. So, Zach, why don't you
take us to our third break? Stick with us. We
will come back for the last segment of Life Happens Radio.
Right after this Life Happens Radio, Frank Hemming here with

(37:51):
Patty Whalen. Thanks again for taking the time, Patty, I
really appreciate it.

Speaker 2 (37:54):
Oh, no problems, right.

Speaker 1 (37:56):
So we've been talking about some tips. We to talk
about agents and you know, who goes on your documents,
a little bit about what documents we like to do
for people. We've talked about knowing what you have, figuring
out what maybe you don't have a few other quick
ones here, So number four is list your digital assets
in your account. So I think this one's interesting because
I'm not sure how meaningful this is to to you know,

(38:21):
to anyone particular, but I think it certainly could become
more important as time goes on. So like, for instance,
like I don't have any crypto. I don't understand it.
I know, like you either can make a lot of
money on it or you can lose every cent you've
ever put in it. So to me, it's very you know,
it's very dangerous. And I'm not really a risk person

(38:42):
when it comes to finances just by by you know, personality,
But like if you have crypto, then like you better
know how to like make sure that it goes where
you want when you die, yeah, right, or if you
have I don't know, if it's let's say you have
a really big important social media count or something. Right, Like,
you know, we have people now in society that they

(39:05):
make their living making content and streaming and doing all
kinds of things on online platforms and being a personality,
and I would imagine like people might want to be
able to like control like if their videos are made
on mine, if they're not here anymore, or that kind
of stuff. And it's like I never really thought about that, yeah,
but it is. But you know, but clearly the internet

(39:25):
and technology it's not going away. If anything, it's just
taking bigger chunks of our lives sololely. Yeah, so I
think it's important just to kind of think about those
types of things. And then the last one. Obviously this
does not apply to everybody, but if this does apply
to you, it is certainly important. So you should if
this applies, and that's figuring out who a guardian would

(39:46):
be if you have mine or children as a as
a parent myself, I can say my wife and I
sat down. I don't remember if it was before she
was born or right after, but when we started talking about,
you know, a dating, our plan and putting wills in
place and doing things that like we needed to do,
we said, like, what would happen if something happened to us,

(40:07):
who would get the kid? And luckily I'm very fortunate
my wife and I tend to agree about most things
pretty easily. But we talked about it and like we
made kind of a pretty quick decision. But we have
multiple layers of like this is what we think would
be best. If that doesn't work, we have some others,
and then if that doesn't work, we have another set
because we do come from a very small like I

(40:29):
have a very small family. My wife has a very
small family, so so like we have some family on
there and then we have friends of ours who are
basically like our family. Yeah, but we did spend some
time with that. So if you have kids, right, you
have to unfortunately think about like if you're not there
to make sure that they're taken care of and they're
you know, nurtured, and they're going to school and taking

(40:49):
care of their stuff, and who's going to manage their money? Like,
those are all decisions you have to think about. Yeah,
and it's best to put them down to make sure that,
like they're you're giving it the best chance that it's
going to work out the way that you want. I
will say with this my one thought that I was
going to bring up on this topic. And Patty, I
don't know if you've seen this, thankfully, I can't think

(41:11):
of many times, but I know it's been talked about
with past clients. And that's so in this instance, let's
say we have husband wife right, husband says, if you know,
I want my brother to take care of them, the kids,
and I've had then wife say, well, no, I want
my brother to take care of the kids. And it's like, okay,

(41:31):
well can we find some consensus here, because if we
if we executed the documents with husband saying his family,
wife saying her family, then it's going to leave it
up to order of death potentially, and I don't think
that's really a good gamble to take right Ever seen
anything like that, I'm just curious.

Speaker 2 (41:52):
I haven't. I haven't yet.

Speaker 3 (41:54):
But one of the other things that I'm thinking about
now that we are talking about guardianships is the fact
that you know, you can have guardianship of the person
and guardianship over the property. I'm thinking back to my
parents' own estate planning, which they desperately need to update.
Mom and dad, if you're listening at your estate planning
and so in their documents they have, you know, provisions

(42:15):
regarding what would happen to me. And so if my
parents were to pass and I was still a minor,
which I'm obviously not now, I would have had to
go to Arizona to live with my aunt and uncle.
But then my aunt and uncle in New Jersey, who
are you know, really good at finances, they would have
been the ones managing my finances, being my trustee. But
I would have had to be living in.

Speaker 1 (42:35):
Arizona, so your Arizona family would have been calling the
New Jersey people to get money to.

Speaker 3 (42:41):
Take care of you essentially, Yes, which I thought was
very interesting. And I understand why because I know, you know,
my aunt uncle in Arizona and my family in New Jersey.
I understand why they were both picked for their different roles.
But I just thought that was a very interesting thing.

Speaker 1 (42:55):
Yeah, I have, I have certainly had that conversation because
I think most of the time, clearly not all the time.
I think most of the time people envision the people
that like have custody of the children essentially to also
then be managing the finances that come with the child.
But but sometimes like that isn't the way that they

(43:15):
wanted to go, similar to like what you were just
talking about. Like I know, I can I think I
can remember pretty clearly. I had a couple that came
in and they had younger kids, and they said, you know,
my sister is the best person in the world with kids,
but she's awful with money, right, Like, she would do
anything she could to care for them, give them the
best home. You know, they would have the best life

(43:37):
with her if something happened, but we do not trust
her to do like smart financial things. So in that instance,
like they did put somebody else's like the trustee, and
are like, we know this might make her life a
little more difficult when it comes to the finances, but
like we think this would actually be the best scenario
for the kids. So it's it's certainly not unheard of.

(43:58):
But yeah, it's interesting that you bring that up, because like,
now you know what they're going to do to you.

Speaker 3 (44:03):
I know, I actually would have been very displeased if
they have to no offense, I.

Speaker 2 (44:08):
Really did not want to go to Arizona upset.

Speaker 3 (44:11):
No, so I'm glad they didn't pass away before I
was able to, you know, grow up. But I yeah,
that was interesting for me to find out. I don't
think I would have agreed with.

Speaker 1 (44:19):
It wouldn't have mattered. Yeah you're going to Arizona. Yeah, yeah,
I don't know what my parents are going to do
with me.

Speaker 3 (44:27):
Uh.

Speaker 1 (44:27):
I'm sure I could ask and find out, but I don't.
I don't actually know. Good luck to anybody who would
have got me. Like so, so those are our five
things on our list. So we only have a few
more minutes. So I found another article here and h
I was like reading articles from like bigger news sites
that they talk about estate planning because I'm always curious,

(44:49):
like who are they talking to? Because sometimes like the
information they get is either like really really spot on,
and I'm like, that's really smart, really insightful, and then
the other times I'm like, are you talking about right?
Like I would never counsel somebody to do something like that. So, like,
for instance, so the article is titled ten things you

(45:10):
should leave out of your will. Okay, interesting, I need
to learn what should I not be putting in wills
for clients? Right Number one gifts or requests to a
child or other individual with special needs. What I can't
agree with that. I actively counsel to leave things to
special needs children. You just want to leave it in

(45:33):
the appropriate way, right, And that's actually what the article
says to I'll be fair. I'm not going to say
where the article came from, but it does actually say,
like you need to plan appropriately for that. But that's
not what the heideline says. It says leave it out.
It should be if you're going to do some planning
for someone with special needs or potentially could have special

(45:55):
needs in the future, make sure it's probably being left
in a trust for them. That way, their benefits aren't disrupted,
their things are managed for them, and possibly even the
trust could be destroyed if it turns out they actually
didn't need the trust or wouldn't benefit from it. But
I wouldn't say don't plan for special needs children people,
whether it's children, other family members, whatever. All right, Number

(46:19):
two now, Patty, I think you have some experience with this.
Number two, don't plan for pets or money for their care. Now, again,
I think it's slightly misleading because it says your pet's
not a person and you can't leave something directly to
your pet. Okay, I can agree with that, but I've

(46:39):
had people that are very very very very very close
with their pets and are very concerned with what happens
to their pets if they are not around to take
care of them anymore. So again, it's not don't plan
for them and leave them out of your will. It's
if you're concerned about it, consider doing a pet trust,
or at least setting aside some money to it. A

(47:00):
caretaker or a trusted person to like, take care of
the pets or to manage the pets or whatever it
is that your wishes are, but I wouldn't say don't
put them in the will at all. Yeah, because you've
had some people with pet trusts, right, Yeah, I have.

Speaker 3 (47:15):
I've I've had someone one of the clients I worked with,
had you know, a really good relationship and loved her dogs,
you know, like they were her children, and she wanted
to leave you know, a pot of money for them
so that if she were to pass, you know, she
had someone in line to first take care of them
and then also to have money to take care of them.
So I mean, it's not it's certainly not the most
common thing, but we've had you know, we've had it

(47:37):
done before. And again, I think that that line is
a little bit misleading in that article.

Speaker 1 (47:42):
Yeah, well that's why I'm that's why I'm doing this, right,
because it's like this is why people get confused because
like you could read this from this source and again
it's I think it's a pretty good source, and it's
like I don't agree with this. Yeah. Number three non
probate assets. Okay, I understand the thought of why they're
saying that, but like what happens if like you don't

(48:05):
have a beneficiary around that account then it's going to
go under your will, it's going to go through probate, right,
So again, and or like if it's so, like let's
just say it's a brokerage account, right, I would say
a brokerage account is hopefully going to be a non
probate asset because it has a beneficiary. It wouldn't pass
you know, under someone's estate typically, but if it's in

(48:26):
a trust, right, then you might want to say what
happens to that specific account within your trust. I would
not plan for it potentially if you want to earmark
that for a specific person or for a specific purpose.
So again I was just don't agree. Next one, terms
that leave fixed, high or unrealistic dollar amounts to individuals. Okay,

(48:48):
that what I think I kind of agree with. Right,
if you only have like if your a state is
two hundred thousand dollars, don't put in something and it
says two hundred thousand dollars goes to one person, if
there's other people you want to provide for, right, Because
I think that's the point here. Don't overshoot your goal, like,
don't overshoot your assets here because that could be dangerous
because then the other people you want to provide for

(49:09):
don't get anything. So the advice here is leave percentages
or leave numbers of shares to people. That way you
wouldn't kind of outpace like your assets. I think that's
good advice. The other one, and we're just about at
the end of the show, so the last one that
I think I'm going to leave with here is and
we talked about this a little bit, so it's actually

(49:30):
a good throwback, and it's funeral instructions. Right, don't put
your funeral instructions in your will. And that's mainly because
your will doesn't have power until it goes to court
and goes through probate, and you may want to have
like your remains handled your body prior to the judge
blessing your will and going through the probate process, which
is why you have that disposition. It remains a point

(49:52):
where you can name your people and what things you
want to have happen so quickly, Patty, have you ever
heard somebody say, like, I want it in my will,
what's to happen when I die?

Speaker 2 (50:01):
Yeah, all the time, all the time.

Speaker 3 (50:03):
And then you know we have to be like, actually,
that's not the best place to put those type of instructions.

Speaker 1 (50:08):
So yes, yeah, that's another I don't know where, Like
I don't know, maybe that used to be a common
way of doing it, or people just assume because like
it deals with things when you're gone, like that's a
good place to put that information. I don't really know
like where that misnomer kind of came from. Yeah, but
I certainly have had people say, you know, let's make
sure we put that in a will, and then we

(50:29):
go through about how there's a better place to do it.

Speaker 3 (50:31):
Yep.

Speaker 1 (50:32):
So with that we are at the end of the show.
Thanks so much for hanging out with us on this
gloomy Saturday morning. I get to go home and do leaves,
which is my absolute lyast favorite thing in the world
to do. But why don't you come back next week
join us. I don't know exactly who will be back,
but it won't be me because I'm on vacation. So
thanks Patty for being here, Thanks all for listening. Come
back next week for Life Happens Radio.