Shocking Truth: Discover If You Making These Fatal Elder Care Blunders?!

Welcome to another edition of We're Talking Money. I'm Phil Clark, and today we're going to wrap up our three-part series on elder care law. Now, as you recall, we did this interview with Lisa Salinas Mondello, estate planning attorney and elder care law expert, and we broke it into a few parts. The second one, hopefully you didn't miss it, was all about Medicaid. If you did, go back and find it, and maybe watch the first episode, which was more of the basics of elder care law.

Today's show is all about misconceptions and things that people have misunderstood for many, many years, or maybe they just don't know. We're going to take you through all of those things to wrap up elder care law and what you need to know to be better prepared. So you don't want to miss today's show. Stay tuned, we'll be right back.

So let's talk about, now, there's just a couple of more things. One is special needs, huge, huge opportunity for people to plan and plan well, and then guardianships. Those things I think are misunderstood, but boy, they can leave people in a really, really undesirable place. Can you talk to those two for me?

Yes. So when I think of special needs or supplemental needs, I might be talking about my spouse that has a diagnosis or some a traumatic brain injury, or a child, or a sister, or a brother.

But you just said something so important. This may not be just a child with a disability, this could be your spouse.

So when we talk about our spouse, I, clients will say, not to worry, I'm leaving everything to my sister and my sister will take care of my spouse. Okay, so there's problems there, right? Because when we leave assets to somebody else to take care of our supplemental needs family member, spouse, child, sibling, we're assuming the person we give the money to will outlive them, that they won't get sued, that they won't get divorced. So that's not really a safe plan.

And you said earlier that if you leave something to someone else expecting, or make them a joint owner or what have you, everything is exposed to their creditors, to their financial condition. So what you intended to be used to protect or to pay for the needs of your loved ones might not be there when they need it most.

That's right. The other thing is, is that when you're leaving your pension, and people have pensions, who can you leave your pension? If your pension has a survivorship interest, you want to read your pension plan. Emi uh leaving my pension plan to a supplemental needs person, because if I do, that's going to disqualify them from benefits. Maybe we should be leaving it to a supplemental needs trust for them so that they can get the benefit of the pension without losing their benefits. So we want to be looking at that.

This is a critical point that happens quite often, where the pension is left to a person with supplemental needs, they lose their benefits, or the pension is left to some other member of the family with the idea or the agreement they'll take care of the supplemental needs person. Again, that person could die or they could spend the money on themselves, so that might not work.

If I'm giving, if I want to disqual, if I'm going to leave money to my husband, if I don't make the right disposition, then it may end up going to a predator that exploits them. It may go to a nursing home. It may go to a subsequent spouse that is taking advantage of them. If I want, if I say, well, I'm going to just inherit my spouse and leave it to some other spot, well, guess what? What if there's an elective share done, which means that maybe Medicaid will step in and say, well, wait a second, you disinherited your spouse, we want that money for the nursing home. Might they make a claim for their 50 for a long-term men a marriage? So these are things that you want to talk about with your attorney, because these are the things that are going to really have an adverse effect on your plan if that wasn't what your objective was.

These are major blind spots. Major blind spots. People are not thinking about the things that you just talked about in five minutes. People aren't thinking about that. So all of that means that special needs trusts are an integral part of this type of planning.

It, they absolutely. Well, anytime you sit down with a lawyer to do planning, in my opinion, the lawyer should be asking about your family, everything about your family: your parents, your siblings, your children, your nieces, your nephews. Because we want to make sure, as your estate spreads and where it's going to go, who's going to be receiving it, are they able to receive it? We don't want to disqualify them from a benefit that they're entitled to, nor do we want to give someone with a substance abuse problem a loaded gun, and the gun is the money.

Great, great point. So Lisa, talk about for a minute this guardianship. Seems like that is another blind spot, potential landmine, where family discord could really create some problems.

So a guardianship is when the state appoints a person to manage another person's assets and person, their health care. That means that that guardian is going to have the ultimate say on what happens. A guardian can be a family member if the family member maybe was proposed in one of your foundation documents, if there is no disagreement among the family. We see lots of disagreement among children, even in a good family. As people say, I have a good family, I have good kids. We still see them disagree, because everyone grows up with their own ideas of how things are supposed to go. If this is a multiple marriage, we see disharmony, big disharmony, when there's a crisis involved.

And when that happens, current law, because again in North Carolina we're working to change the law, that's happening, but concurrent law, the court doesn't have to put the guardian in place that you proposed. So when there is a disagreement, or there's co-agents named, I don't want to pick between my kids, so I'm going to name both my kids, or my spouse and my child, when they disagree, the court many times will put a public guardian. This is a lawyer in most counties that will manage your affairs. Now, this will be for financial affairs, and they will be paid, and the statute says they could get five percent. That's a lot. Five percent of all of the assets, all the money that comes into the guardianship, and then they get their percentage on the money that goes out.

So if they're bringing money in, or if they're spending the money to take care of you, for example, they're being paid both ways?

Yes.

Wow, that could be a lot of money.

I am, yes.

For example, a three million dollar estate, that could be a hundred and fifty thousand dollars if they moved money in for the sale of all of those assets, so to speak, and then if it moved out for payment of services or whatever. That could become a large payday for this appointed guardian.

Yes. They work hard, because they've got to manage these assets and they have a duty to what they call the person subject the guardianship, but they are paid under the statute. And if you have a larger estate, that's going to, that can be substantial, particularly if they're selling real estate. Now, if you don't own anything and you're only getting a Social Security check every month, then they're not getting paid much.

So for folks that have real estate and savings and other holdings, this could be very costly to their estate.

And it can be emotionally crippling to the family members.

Yeah, I bet. So planning here is paramount. Yeah. So throughout the video, what you're hearing is a lot of planning opportunity. What you're also hearing is that people simply don't plan, and you want to avoid that, because these things can be extremely costly. If you think it's expensive to get the legal documents in place and to buy this protection, where do you see what it would cost your family if you don't pay for the protection?

Before we finish our show, I want to talk to Lisa a little bit about what are some of the risks even if you plan. What are things that families should be looking for, the blind spots that you might never think about? We're going to talk about those right now.

We have many cases where there's financial exploitation, and no one ever thinks it's going to happen to them. But most of the time these folks that are doing the exploiting, they ingratiate themselves to the family. They may act, they may be a caregiver you've invited into the home to help a parent or to help your spouse, and the next thing, in the rhythm of what happens, is that they start to cut the family off. They shut the ringer off the phone and say, you're not caught, the family isn't calling. They change powers of attorney where they name themselves. They have deeds executed where they own the property. They marry the senior without telling the family. And by marrying somebody in this state, you get a certain percentage of death just on the first day you marry, in the first moment of marriage. So on a large estate this could be significant.

So they don't have to do the transfer right away, but they can order the beneficiary forms.

We've seen this where they call the insurance companies and they now name themselves as the beneficiary of the life insurance. They go to the financial company and name themselves as the beneficiary of the financial accounts. The families, they have no idea until it's all done, and because they're not a beneficiary, they don't have access to the information. No one's talking to them. It's just already done.

So this happens, and many times the family has actually invited this person in, thinking that this person is caring for their elderly parents. They have great trust in these people. All the while these people, these caregivers, could be literally taking from that family, and the family has no idea. They could be marrying this senior person, and the senior person could be such that maybe they don't even know what's going on. How do these people that we're serving as our clients, Lisa, what are the things that they should be looking for? What are the signs, so that they can identify these things before it's too late?

Signs of exploitation can be really subtle at first. It can include phone calls not being answered. It can include the bad actor being in the background when you're talking to the senior. Short calls. It can be the parent or the family member questioning why you're asking questions, seeing a bit paranoid. But what's really terrifying is there are cases where the senior is actually afraid of this caretaker, and they're afraid to tell their lawyer, they're afraid to tell their family about what's happening, because the common thread is, if you say anything, they'll put you in a nursing home. I'm the only thing between you and the nursing home. And they'll allow it to go on. The senior will allow it to go on.

We've had cases where a child would go to the house to see their parent, and the bad actor would call the sheriff to have them arrested, and they wouldn't even get access to their own parent. And that happens more than you know. And everyone, it's not going to happen in my family, but it actually is happening in our communities. You can Google it, in our, just in our counties, to see what's happening.

It's hard not to think of a motion picture. This sounds like a movie, but these things happen, and so many movies oftentimes are based on real life. These are real life things that you're talking about, and quite scary. There are certainly safeguards to put in place, and then being diligent with family meetings, being there to see your family members, and learning to watch for these signs. Imperative to be sure that your family doesn't get taken for a ride, so to speak.

Yes. You can create a trust where you're healthy and while you're in control, with a chain of command, so if later you're having an issue with your capacity, your chain of command can step in and remove you in that position of control. By allowing your chain of command to do that for you, you also put up a moat around yourself from the exploiter, because now they can't exploit you to divest yourself of your assets, because your family's there, or other trusted professionals are there to protect you. And everyone thinks, when's the right time? Because none of us want to think it can happen to us, but we're all one fall away from something happening.

I think that's well said. You know what, every time I talk with Lisa I learn more and more that planning really is something that we should all be doing. Otherwise every one of us are exposed to the same risks every day. So if you're a family, or maybe you're listening to this show for your parents or a family member, and you're trying to learn some of these things that can often seem esoteric, if you're trying to learn more to better protect yourself, there's a great way to do it. We'll put the phone numbers on the screen. You can call Lisa's office. Her client base spans a large area, she sees clients all over. If you have questions and you need answers, she's available.

This is extremely important that you get the right planning now. Don't avoid it. Don't think that you won't be potentially one of these victims. Everyone thinks this won't happen to me, but as you said, Lisa, this can happen to people who believe they are well protected, who think that my family's too close, we won't have family disagreements. Lisa, is there anything else that our

Listeners should know there's just so much that you talk about and that you know about as it relates to all of these, I call them land mines or blind spots.

But there's so much. I think that all folks should read their documents that they have, and they should be able to understand the flow of what's going to happen in a crisis or in death. If, when you read your plan, you're not really sure, then it's time to have things reviewed. And remember that the law is changing and evolving all the time.

So when I have someone come in and say, "Yeah, we did this 20 years ago," well, that's probably too long. I would say that if you've done something in the past couple of years, you probably need to go back and have it looked at, because not only does the law change, but you change. Your health changes, your family changes, and that's always a good time to let a professional tell you whether the changes in your life affect the plan you have in place.

Thank you so much. I really appreciate you being on the show today.

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