Your bank won’t honor your Power of Attorney…Now What?

Over the years, I have some clients tell me that their bank didn’t honor their Power of Attorney and they don’t know what to do. The stories are consistent, an adult child was named the primary agent for their elderly Mom, since Dad had recently passed. Mom has become immobile so that the adult child must manage mom’s financial affairs and fulfil their agent role under the provisions of Mom’s Power of Attorney. This scenario is exactly what the Illinois Legislature had in mind when they drafted the Illinois Power of Attorney Act.

            The purpose of the act is to recognize that everyone has the right to appoint an agent to make property, financial, and personal decisions throughout the principal’s lifetime, including during periods of disability. It provides a principal with confidence that a third party, like a bank, would honor the agent’s authority at all times. Lawmakers wanted to give principals peace of mind knowing that their affairs would be efficiently handled, despite any present or future infirmity. However, banks, in their desire to limit their own liability, frequently refuse to honor a validly executed power of attorney. This defeats the desires of a principal, who is unable to manage their personal matters. How will the adult child in the above scenario, help their mother pay bills? How will the adult child convince the bank to honor their elderly mother’s power of attorney? This is where an experienced attorney can help.

            The Illinois Power of Attorney Act gives the mother and adult child the ability to use an attorney to put some teeth into the banks refusal to act upon a validly executed document. The best method to take a bite out of the bank is by utilizing an attorney to enforce the Illinois Power of Attorney Act, specifically, 755 ILCS45/2-8(d). The statute states:

(d) each person to whom a direction by the named agent in accordance with the terms of the copy of the document purporting to establish an agency is communicated shall comply with that direction, and any person who fails to comply arbitrarily or without reasonable cause shall be subject civil liability for any damages resulting from noncompliance.

            The financial institution and even the banker personally may be liable to the agent and principal for any losses or damages resulting from the bank refusal to comply with the directions of a validly executed Power of Attorney. Once a client has contacted our office, we will work quickly to ensure the bank’s compliance with the Illinois Power of Attorney Act and ensure that the adult child in the above scenario can act on their mother’s behalf in the most effective  manner available. The Law Office of Jonathan W. Cole has the knowledge and the power to ensure the bank’s compliance, either through a simple communication, or by litigation, if necessary. Give us a call at (708) 529-7794. We can resolve this issue. 

Chicago Estate Planning Attorney | Powers of Attorney

Many clients have been very confused about the meaning and usefulness of the documents called Powers of Attorney. This post will explain what these documents are and how you should use them. To begin there are two types of estate planning documents. One type is documents that have an effect while you are alive and the other type has an effect when you are dead. Powers of attorney have an effect while you are alive. For the most part, their power terminates at your death.

Now that we know when they are effective, what do they do?

There are two types of Powers of Attorney; 1) Power of Attorney for Property, 2) Power of Attorney for Health Care. In general, you as the "principal" designates a friend or family member to act as your "agent". That agent will then be able to make decisions and take actions on your behalf when you are unable to. These documents help individuals who can not take the appropriate actions that will promote their best interests. I know that the preceding sentence seems either confusing, or not applicable to you. I will show you that this type of situation will probably happen at some point during the course of your life.

You may need a power of attorney if ...

• you are in an accident and can not make medical decisions on your own behalf. 
• you are in an accident and you can't update the CD at the bank that came due.
• you are on vacation and you forgot that you had a closing on one of your properties.
• you are on vacation and your cell phone contract came due and you want to keep your plan.
• you have to be in two places at once to sign documents.
• you have mobility issues that makes getting to a location difficult.

As you can see, this is just a small sampling of times when a Power of Attorney can be either crucial or extremely convenient. If you would like to find out more about Powers of Attorney, you can contact my law office in Oak Lawn, Illinois at:

Law Office of Jonathan W. Cole

5013 W. 95th St.

Oak Lawn, IL 60453

(708) 529-7794

www.jwcolelaw.com

Oak Lawn Estate Planning | How do I know if I need an Attorney for my Will?

I will begin this post with the disclaimer that you probably already know, I am an estate planning lawyer. What does this mean for you, perhaps my opinion iss a little biased, but I also have more experience than you in this area. I warn you to take my opinion as one of many you will look up and you will surely find the answer you are looking for. 

So the question is, when do I need an attorney to do my Will?

 My answer is, almost always. You question should be why. I will give you three options that are non-attorney related and the reasons these option will leave you lacking.

Option One: Get a sample Will online and just change the name to my name.

        Why This Is A Dumb Idea: You Google a Will online and think it may fit your situation. You say, "I don't have a big estate anyway, what could go wrong?" The short answer is everything. Wills have state specific requirements. In order fr Wills to be valid, you must comply exactly with the rules of your state. Do you know how many wittnesses you need in your state. Do you know the requirements for the execution ceremony for your Will? Do you understand how your property will be divided after you pass? You will have to know the difference between per stirpes and per capita with representation. You probably have not even heard of the concept of per stirpes before. I am sure you will Google it now though. An online Will may seem to fit your situation, but in most cases, they do not. There is a good chance that you do not understand what parts of that Will do not apply to you and what parts you may need that are missing. An online Will can only lead to frustration for you and your family. 

Option Two: I will simply hand write my own wishes and leave them where they can be found.

     Why This Is A Dumb Idea: Some states do not recognize a holographic Will. I am sure you will be Googleing holographic Will now. If you do not know if your state recognizes it, you are asking for a world of trouble. Additionally, Holographic Wills are easily challenged in court. This option leaves either two results. One, your will was never valid in the first place and your property will be distributed through your states intestate statute. Option Two, is that your Will is challenged and that means your sanity is challenged  This is a horrible process and usually breaks up families that were tight before the process. 

Option Three: Purchase a Will from a legal zoom type website.

     Why This Is A Dumb Idea: You are hiring an "attorney" to prepare you a Will. Your Will will be a template, based upon a few questions you answer in a pull down menu. What are the chances that an attorney will be able to find out the proper information in a few pull down menu? Not very likely. This is not a customer satisfaction survey from an online retailer. No attorney can create a plan from you with only a few questions. This is a sham of an operation. People can only provide you a proper plan if they can ask you a question and get a response that is not forced to fit one of three options. You are not the same as your neighbor and your plan can not be the same as your neighbors. This is you Will, not an I pod. The ability to have a dialog is vital to getting a plan that is proper for your situation. Additionally, the cost of a live attorney is not substantially more than an online service. I call those who use this service penny wise, pound foolish. 

So this leaves you with the final question, who doesn't need an attorney to draft their Will? Only those individuals who do not care where their property goes when they die. If your opinion is that, I am dead and I don't care what happens to my stuff, intestate is the way for you. If you would like to have some control where your property goes, you should get an attorney to prepare a Will for you.

Law Office of Jonathan W. Cole

5013 W. 95th St.

Oak Lawn, IL 60453

(708) 529-7794

Oak Lawn Estate Planning | Medicaid Planning

You may anticipate that you or a loved one will have to go into a nursing home in the future. You are worried about how you are going to pay for nursing home care. You know it costs between $4,000 and $7,000 a month.  This cost is well beyond the means that most families have saved to cover their medical needs. At $84,000 a year, most families can not keep up with the rising long term care costs. I have already spoken on the benefits of Long Term Care Insurance in an earlier post with a follow up on Long Term Care Insurance in this post. The problem may arise if you are too late to apply for long term care insurance. Long term care insurance is mostly for those who are health now. If you did not get insurance, medicaid planning is the method for you.

Medicaid planning is a very technical type of planning. I will start off the section on Medicaid planning with this warning, you should consult a professional before doing any type of asset transfer. I know you may be skeptical because I am a professional who does Medicaid Planning, but rest assured there is a good reason to go to a professional on this area. If you improperly transfer assets, you could be penalized for up to three times the amount of the asset transfer. This penalty is converted into a period of time and you will be excluded from Medicaid benefits for that many months. The purpose of this post is not to talk about the penalty for an improper asset transfer, but know that the penalty is much greater than it probably should be.

So how does Medicaid planning work? There are assets that are exempt and non-exempt. In order to qualify, you must have a total of non-exempt assets that are below the threshold allowable by Medicaid. This threshold is state specific because each state administrates the federal Medicaid program In Illinois, the Spousal Impoverishment Act allows a community spouse to keep $109,560 in non-exempt assets. It also allows a community spouse to earn a monthly income of $2,739 without having to contribute any of their income to the cared for spouses bills. There are some ways to ensure that your community assets meet this level, but the order of asset transfer must be precise and exact. An "auditor" for Medicaid will look back on any transaction that is made that transfer assets for the five years preceding the application to Medicaid or entry into a nursing home. The key for qualification to medicaid if to transfer assets from non-exempt property to exempt property in a method and manner that will not disqualify you from Medicaid benefits. The problem is if you transfer property in an improper manner, even if the ultimate goal is a proper asset transfer, you will suffer a severe penalty from Medicaid.

The other aspect of Medicaid planning is timely action. If you plan for Medicaid five or more years before you will need it, you will have many more options for transferring your money. You will have a myriad of trusts available to you .These trusts can transfer your assets to anyone you choose. You will not be limited to your spouse or disabled adult children. This is a big advantage for many reasons. You may not have any disabled children and you want to take advantage of tax breaks when giving money to your family. Additionally, you are not limited and under scrutiny with what you do with the money you earned.

If you would like to speak to a professional about Medicaid planning, call me at:

Law Office of Jonathan W. Cole
5013 W. 95th St.
Oak Lawn, IL 60453
(708) 529-7794

Chicago Estate Planning Attorney | What is Probate?

You have heard much about it. Probate. It is such a foreign word. You know the kind. The word you here everyone say, but know one seems to know exactly what it is. Probate. What the heck is Probate? You may have heard people on TV say that you need to avoid probate at all costs. Is probate like a trip to the dentist? What about this word could be so bad that it needs to be avoided at all costs. This post will give you the in's and out's of probate. When you are done, you will be one of the few who is no longer muttering this word like it is the evil bogey man of your nightmares. A "Chubacabra" of sorts.

History: The word probate comes from the Latin word "Probatus" meaning proven. But what is proven? In the case of Estate Planning, and more specifically Wills, the Will is Proven. To Prove a Will.  

Now that leaves the next question, What if their is no Will? If there is no Will, the individual is is considered to die intestate. Intestate means simply without a Will. I will leave the whole intestate discussion to another post, but it is important for you to understand that there are two ways for you to find your estate in probate. 

So back to, - Proving What? We have to prove one of two things. If their is a Will, we must prove the Wills Authenticity, Contents, and the Capacity of the Will Maker (Testator). If their is no Will, you die intestate, we must prove and certify the lineage of the deceased both north and south. North meaning those lineal descendants who came before you. Such as your parents and your grandparents and so on and so forth. The descendants who are south are your children and grandchildren and....on and on and on. This includes lateral descendants such as your brothers children as well. 

How Do We Prove It?  I am so glad you asked. 

 
  The method of Proving the Will is simpler than the the intestate method. In order to prove a Will, a court will be the judge of the validity of the will. A Will will be submitted to probate and an opportunity for for people to contest a Will will be set. This time will also allow creditors an opportunity to submit their claims against the decedents estate.  If their are no challenges to the Will, a simple "certification" by the executor of the estate claiming that the Will is valid and accurate will usually suffice. If their is a Will contest, the drama really starts. I will leave that explanation to another post, but rest assured it is a messy and dirty ordeal.

   If you die intestate, the proof is in showing all potential beneficiaries under your states intestate statute. In Illinois, the method that the State disposes of your assets in a manner called "per stirpes". The method of distribution is not important for the purpose of this post, but what is important is that all potential beneficiaries under the per stirpes plan must be identified and either receive a myriad of letters or sign a certification about the probate. The proof come in when you must show the judge that you did not leave a single individual out of the search to notify all potential beneficiaries of the passing of the deceased.

So where does all of this information leave me?

This post leaves you a little more educated about the probate process and what probate is. The next post will help you determine if you would like to avoid probate, or if probate is right for you. Hopefully, your mind is a little more open to probate after understanding what probate is and what is involved in probate.

If you would like to speak to a lawyer about Probate, a Will, a Trust, or the Administration of an Estate, call the Law Office of Jonathan W. Cole at (708) 529-7794. The Law Office of Jonathan W. Cole has been helping people in Oak Lawn and the Chicago-land area with their legal needs and would like to help you as well.

Law Office of Jonathan W. Cole

5013 W. 95th St.
Oak Lawn, IL 60463
(708) 529-7794

Oak Lawn Estate Planning | The Need to Follow Up

The problem with any plan is complacency. With the big three changes always happening, you can not rest on your estate plan forever. The big three being, 1) changes in the laws that effect your estate plan, 2) changes in your assets, and 3) changes in your family structure. In light of this obvious and inevitable change that will occur in the real world, people are stuck believing that their static plan for their assets will be good forever. It is like taking a picture today, only to be curious about why you do not look like this 20 years later.

 The excuses are endless. It costs too much money, it is impossible to know how many changes should prompt me to re-evaluate my plan. I don't have time to update my plan. The list goes on and on. I am always perplexed by the ignorance of people. Good intentions are not enough. You need to take action. If I could yell this any louder, I would lose my voice and my neighbors would be mad at me. You need to take action. If your estate plan provides for your darling two children, who are now both college graduates and getting married themselves, you are long past time. I will give you a rough guide to go by, for determining your re-evaluation period.

No major changes to the big three (see above) - every 7-10 years
A major change to any one of the big three (see above) - every 3-5 years
A major change to any two of the big three (see above) - every 1-3 years
A major change to all of the big three (see above) - see your attorney immediately

If you have a decent relationship with your lawyer, you can probably ask him or her to review your estate plan, and there will be no changes that need to be made or only a minor change. In most cases, this minor change will cost very little and you will now have a current estate plan. In most cases, you would not need to draft a new Will or Trust. All that will be needed is a codicil to your current Will. I can not stress enough how frustrating a stale Estate Plan can be. In some cases, a stale Will or Trust can frustrate the entire purpose that it was meant to support. Please keep you Wills current. As always if you would like to know more about the Will, Trust, and Power of Attorney Process contact:

Law Office of Jonathan W. Cole
5013 W. 95th St.
Oak Lawn, IL 60463
(708) 529-7794

Oak Lawn Estate Planning | Long Term Care Insurance

You are probaby asking yourself, "Why is an attorney talking about insurance?" I thought attorneys estate planing was all about Wills, Trusts, Powers of Attorney, and eligibility for State and Federal programs. That may be true for most attorneys, but to have a real comprehensive plan your attorney should consider every aspect of your future. This includes your life insurance, health insurance, IRA and pension, title of your home, finacial future of your children and even your long term care. If your attorney is leaving out a portion of your future, how can you trust him or her to help you plan.

 You future planning is like a boat. You need everything to be right before your boat leaves the dock. Only a fool would have a great hull on a boat but leave without a motor. No one in their right mind would leave the dock without fule for their engine. Who would like to be on the sea with no fresh water? Obviously, no one would think of heading out into the sea with this type of preperation. So why would you accept only partial planning for your future.

Now you know that a comprehensive Estate Plan includes long term care insurance, but what is long term care insurance. The nutshell version of long term care insurance is that it provides funds for you if you become incapacatated and can not take care of yourself. This insurance does not just apply to the elderly. If you were in an accident and needed to be cared for 24 hours a day for a couple years while you are recovering, long term care insurance will cover it. If you develop a disease where you need help injecting yourself and getting dressed. Long term care insurance will cover it. I could go on and on about the benefits of long term care insurance, but I will give you this fact and let you think about it until my next post. The national average annual cost of a private room in a nursing home is over $79,000.00 a year. That is $217 dollars a day. This type of expenditure can quicky depleate the asses of any size estate. Especially if you multiply this cost by two for a married couple.If you would like to have an estate to leave your children, consider long term care insurance as an integral part of your estate plan. Look for more about long term care insurance in upcoming posts.

 If you would like to know more about how to start your own estate plan. Call the Law Office of Jonathan W. Cole to find out how a will trust and power of attorney can get you on the right tract for the future.

Law Office of Jonathan W. Cole
5013 W. 95th St.
Oak Lawn, IL 60463
(708) 529-7794