Food for Thought Archive

A Mosdest Proposal by Phil Runyon

3/15/2018

A Modest Proposal

Many of you have already taken the suggestion to convey your assets to revocable trusts to help your family avoid the winter (spring, summer and fall) of discontent that is probate administration. Often the plan is to hold the nest egg in trust until you’ve shoveled your last driveway, and then to distribute it in equal shares among the kids once they’ve reached responsible ages.

The problem with this plan can be that age alone doesn’t guaranty smooth sailing for anyone. For example, what if you’ve settled on a final payout at 30, but by then a divorce or a lawsuit or bankruptcy has made it treacherous for your offspring to receive - and retain - even a morsel of the egg? Yet the trust says 30, so the estranged spouse or the plaintiff or the bankruptcy creditors want their shares. Or what if 30 just turns out to be way too early - or unnecessarily late - for your folks, no matter how you assessed the situation way back when they were 10 and 12?

Let's also say you want the trust to provide for the children's or grandchildren's tuition somewhere really expensive - that doesn't narrow it down much these days - but you don't want the trust assets to count against them in the financial aid decisions. Or perhaps one of those youngsters ends up spending every nickel he touches on harmful substances or needs disability benefits at some point - and you don't want a trust share to finance their problems or disqualify them from help they may be able to qualify for otherwise.

How about one more scenario: maybe one of the kids or grandkids doesn't really need as much as another, because his spouse has a lucrative career or inherited a lot herself - or maybe needs more, because she's committed to a wonderful non-profit that does important work but can't pay a living wage.

So, what kind of magic tweak might actually deal with nearly all these concerns? Well, suppose you substituted the word "may" for "shall" in the trust provision about distributions, and suppose you took out all the ages for mandatory equal distributions and left it totally up to a trusted person - you know, a trustee - to decide when and for what purposes distributions could be made once you're gone. Then, instead of inserting any specifics into the trust agreement itself - specifics that might have to be disclosed to someone snooping into a beneficiary's right to a quantifiable share of the assets - suppose you left some informal guidelines for the trustee about how and under what circumstances the trust funds might be used. And because those guidelines weren't included in the official document and weren't legally enforceable anyhow, they wouldn't have to be disclosed to anyone. No one's share would really be a share at all, so no third parties could get their claws into anything definite or put a meaningful value on it.

Needless to say, this approach isn't for everyone. Some people don't want others - even trusted others - making all those fundamental decisions. Some people don't even have others they trust that much. And some people just figure that their kids need to leave the nest and fend for themselves at some point - say, at 30 - no matter what happens next. So it's just a modest proposal for your consideration.

LTC and TLC Considerations by Phil Runyon

10/12/2017

LTC and TLC Considerations

It turns out that most people aren't as worried about climate change or whether Twitter will go to 280 characters as they are about spending their life savings on years of nursing home expenses. On the other hand, they're nervous about just turning over their assets to the children (for the reasons I've detailed in a prior message), in order to qualify for Medicaid if and when the time comes - but they also don't want to spend up their nest eggs on expensive long-term care insurance they may never need.

What to do then? For one thing, if a couple owns their home and only one of them needs a nursing home, they can likely keep the home, its furnishings and the family car, and none of those assets will be hit with Medicaid liens. They can also keep more than $100,000 of their nest eggs, and the spouse at home can retain all his or her income from Social Security and pensions. In other words, it may be a nor'easter, but it's not hurricane Harvey.

Still, people want to do something to protect themselves, and they're often lured to risky options that get promoted as miracle drugs. They're told they can put their assets in trusts and still have those funds available to pay their personal expenses - so, voila, they'll get the nursing home financed by Medicaid without even a crack in the egg. The trouble is, it's just not that simple, and there will likely be a battle with Medicaid over the terms of the trust or about whether Medicaid can get their benefits reimbursed from the trust funds.

The problem has always been that the other option - long-term care insurance - is almost as bad, because the premiums are high, and if you never need professional nursing care, it seems like you've cracked your egg for nothing. Now, though, even the companies that sell LTC policies have recognized the drawbacks, and they've come up with hybrid policies that guaranty the return of some or all of your premiums at death if you haven't eaten them all up in payments for nursing care. I'm not an insurance expert, but there are good ones in our own backyard and they can help you decide whether these improvements in coverage are enough to tip the scales for you. Just look into the options soon rather than later, though, because the premiums increase as you get older. What a surprise!

Much of what I write about comes from actual situations I've been witnessing, and here are a couple more. If a family member needs someone to handle his or her legal and financial business or to make health care decisions, make sure to have them execute the necessary documents before a physician has declared that the window of opportunity has closed. If a person can no longer make intelligent and knowledgeable decisions, then they can't sign legal documents, and the only recourse is guardianship - an expensive and divisive process. The same goes for will or trust revisions, as I've had several family members recently say that "mom would never have wanted those [old] arrangements any longer," but she never got around to changing them.

Finally, and here's the TLC part, one of the greatest gifts you can give your family is not to leave them with a real mess once you're gone. I'm not talking now about the legal documents, because you may have been scrupulous to keep those in order. I'm referring to what, in fact, you've left behind, where to find it all, and what to do with it once the family discovers your secret hiding places. You may have a shoe box full of krugerrands or all the vintage baseball cards your mom never threw out, but where are they and what are your thoughts about what to do with them? We've even had to re-open estates when unknown assets surfaced years later in the back of a desk drawer.

Likewise, does anyone in the next generation have any idea where you came from and what you did before they came along? And do they know who your college roommate, second cousin or Army buddy was and how to contact them once you're gone? This isn't the kind of information to fill up the documents with (even though we don't actually get paid by the word), but that doesn't mean it's not just as important. If you need prompting about these and other topics you might cover, please let us know and we'll forward a form that could help.

Posted 10/12/2017 - Misc.

EnABLEd Accounts by Phil Runyon

7/11/2017

EnABLEd Accounts

We've probably all at least heard about so-called "special needs trusts", even if we've never met one in person. They're intended to provide supplemental assistance for people receiving - or who may be eligible to receive - those special public benefits. They're also usually long and complicated, because there are lots of rules limiting what the trust funds can be used for without upsetting the public benefit apple cart. Enter the recently-enacted ABLE account, which is short for Achieving a Better Life Experience, and which, under the right circumstances, can be much more user-friendly than a tedious and restrictive special needs trust. Here's how:

Let's say a young person with special needs has had a Uniform Transfers to Minors Act account that was set up by a caring parent or grandparent. If she applies for public benefits after turning 21 (when UTMAs must pay out), those funds will be counted against her in the application process. If instead those UTMA funds are transferred to an ABLE account before she turns 21, the government authority will be unABLE to count those funds against her in determining her benefits.

OK, but how does an ABLE account work, and who's in charge of it? That's the beauty part, as they say, because instead of having to work through an independent trustee for every expenditure, the young person can be in charge of the account and can determine the use of his funds. That may not work for everyone with special needs, but in the right case it can be extremely empowering and can help build a vulnerable person's self-esteem. The enABLEd person can also use the account to save up for important purposes like buying a home or getting married.

Another ABLE advantage is that the account can be used for the person's own household and living expenses, which would likely be disqualifying expenditures for public assistance purposes if those payments were made from a special needs trust. Again, if a person with such an account can pay her own way, so to speak, that can result in a feeling of independence and promote a sense of personal responsibility that's unheard of in the special needs trust world.

As I said, an ABLE account may not work for someone with severe needs, but it might be partnered with a traditional special needs trust to provide a person with control over at least a portion of the available funds. Any degree of self-determination in these difficult situations can be life-changing.

Sure, there are some limitations on ABLE accounts that go beyond a message you may be reading somewhere by the water, but maybe this will plant the seed.

Posted July 11, 2017 - misc.

Ask the Right Questions by Phil Runyon

10/31/2016

Ask the Right Questions

Most of us won’t ever run for public office, but that doesn’t mean we don’t engage in important public service. I venture to say that everyone reading this is now or has fairly recently been serving on a non-profit or municipal board or committee of some sort. And when we were asked to serve, our questions were usually, “How often are the meetings?” and “Do I have to ask people for money?” While those are still important questions, we should now be asking this one, too: “Does the organization have directors’ and officers’ liability insurance, and will it cover me for the things that might cause potential liability?” Actually, the last part of that question could be the most important, so don’t leave it out.

Here’s what I mean. Let’s say you’re on the board of a private school or day care center. Will the organization’s D&O policy cover you if suit is filed against the board because one of the teachers or caregivers molested a student or child, or sexually assaulted or harassed another employee? Will the policy cover you if the board is sued because the business manager filed fraudulent tax returns to cover up a history of misappropriating the organization’s funds - and will it keep you from having to make good personally on those obligations? Also, will the board have coverage if one of those employees is terminated and then files suit for wrongful termination? And if you’re sued personally - it happens frequently in these cases - will the policy provide you with legal representation and pay the fees – because we all know how expensive lawyers can be, right, even if we win?

Needless to say, there’s almost no chance that the person you pose these questions to will have the answers. Don’t let that deter you, though, and don’t settle for a squishy response that doesn’t really give you the information you need. No, I suggest you ask for a written explanation of coverage from the agent or carrier of the organization’s D&O policy – as I did when I asked Tim McMahon of the Bellows-Nichols Agency about all this. You’ll probably be doing the rest of the board a great service at the same time. Then, if you get the right answers, you’ll be good to go; you’ll have immediate cred for insightful brilliance; and you can serve with distinction and peace of mind. But if you don’t hear enough to put you at ease, either the organization can do something about it for the whole board’s benefit, or you can make your mark elsewhere. Either way, you’ll be ahead of the game.

Posted 10/31/2016 Misc.

The Conversation by Phil Runyon

6/10/2016

The Conversation

I hope your good weather activities are off to a fast start – and that all your hiking and biking are making estate planning less urgent, shall we say. On the upside, longevity authorities now predict that the first person to live to 150 has already been born. Still, as far as I know, mortality is holding constant at 100%.

Perhaps because of that last statistic, I often get asked whether I find it discouraging that despite all my best planning efforts, I end up losing most of my clients eventually. In the spirit of the campaign season, I usually dodge those questions by asking whether people have made the same inquiries of their physicians.

But let’s not dodge it here. Most of us have come to the realization that we’re not going to make medical history on the order of Methuselah; we just want our brief sojourn here to end the way we hope. That is, please let us die at home, in our own beds, with all our faculties intact, after a vigorous life and a nano period of decline, and with all our loved ones gathered around. Yet, the truth is that 80% of us will die in a medical institution of some sort, and at the end, 50% of us will be incapable of making decisions on our own behalf.

So what do we do to fight back? Well, we could all make sure we have a good, current health care directive, so that if we’re “out of it” near the end, our best interests are in the hands of people we trust to do the sorts of things we’d do for ourselves if we could. But you know that, and most of you have already taken that important step. (You’re in the minority, though, because nationally the percentage is just 25%.)

The problem is, even that’s not really enough. You need to have “The Conversation”, to use the term coined by Dr. Sanders Burstein of Dartmouth-Hitchcock Nashua (and probably others). In other words, you need to get a lot more specific about what you want than the basic choices given you in the canned documents the statute prescribes. Even our versions, which expand considerably on those selections, still aren’t enough.

You need to talk – a lot – with the person(s) who will be in charge if that unhoped-for time comes. Sure, it’s a conversation no one wants to have, which is why it happens so infrequently – like when you need to have that birds-and-bees talk with your teenager. So have it before the time comes, when you can still make dark, nursing home humor about it, even while being completely serious. And someone should be taking notes, including quotes, if possible. If you just can’t bring yourself to broach the issues, though, or if no one will sit down and listen (which is sometimes the case with family members in denial), then put it in writing for them and attach it to the official document. If we’re holding your directive in our safe, we’ll be happy to supplement it with your specific guidelines.

What am I really getting at, you say? Here’s my very brief stab at it: “I love to read history, follow my favorite teams, get together with my friends and family, and take walks on nice days, and I’ve always thought it important to feed myself and make private use of the bathroom. If it gets to where I can’t do the majority of those things, and I can’t decide about what to do myself, then I don’t want any efforts made to keep me going by medical procedures or drugs. I want nature just to take its course, and if it looks like that’s happening, I don’t want anyone to interfere with that process, except to keep me as comfy as possible. You may be reluctant not to do all you can to help me hang on, but that’s not what I want. Life here will already be over for me, so let me get on to wherever else I may be going. I sincerely appreciate all you’ll be doing for me, and I hope being clear about my wishes will put everyone's mind at ease.”

Not bad for a start; I actually feel better already.

Posted 06/10/2016 - Misc.

Peering Over the Horizon by Phil Runyon

3/2/2016

Peering Over the Horizon

My wife and I were just in Cuba and spent much of the trip admiring those beautiful '50's cars of our youth. However, with no seat belts in them and exhausts still belching the byproducts of leaded gasoline, it's a good thing the island has national health care.

The one thing we didn't see any evidence of was a nursing home, probably because the youngsters just take care of their elders at home - like Americans once did. Some still do, of course, but with families all out working to make ends meet and with the explosion of senior care facilities, it's often easier for everyone to choose one of those alternatives. And if you need more care than the family can provide, you may have to start paying for care anyhow - usually at alarming rates.

Consequently, people keep asking how they can arrange their affairs so they can get the care they need, but not spend up everything they've worked a lifetime to accumulate. The knee-jerk solution is often to give it all away to the kids, so the parents look like they don't have anything and can qualify for Medicaid. I've talked about the shortcomings of that course before, so I won't repeat the disadvantages here.

But let's really look at the current state of affairs. True, a pretty nice nursing home can cost in excess of $100,000 per year. Yet the odds of needing one are in our favor. Even as long as we're living today, only about 40% of us will need a nursing home at all, and the chances of needing more than 3 years of care are only 25%. If my math skills haven't failed me, that means there's only a 1 in 10 chance of needing to pay more than 3 years of expenses.

So what does this mean? For one thing, it means we'd be crazy to give everything away - or make other inconvenient arrangements - just to avoid a 10% chance that our funds would be depleted by nursing home bills. Does it mean, though, that we'd be better off hedging our bets by paying the premiums for long-term care insurance? Maybe, but that involves a further calculus. Do we have a family history of Alzheimer's or some other debilitating condition that might afflict us, as well? Can we get LTC coverage at reasonable rates we can afford? The latter will depend on our ages now, our current health, and how much coverage we want to spring for. If we don't have any lurking family skeletons, though, maybe our risk of needing a nursing home will be even lower than 1 in 10, and perhaps our best insurance will be eating right and exercising. And some of us may even have old-fashioned families who say they want us to enrich their lives with tales of mail with stamps and phones on cords.

One way we might have our cake and eat it would be to forgo the insurance, but to pretend we're paying for it by contributing what we can afford to a rainy-day investment account. If we're still young enough to make IRA or 401K contributions, then ramping those up would be the way to go. If we never need the nursing care, we've buttressed our retirement savings or our grandkids' college funds, but if we do have to pay a nursing home, at least we'll have saved something extra toward those costs.

Clearly, if we knew what was over the horizon, we'd know exactly what to do. We certainly wouldn't bother with any insurance until just before we needed it. On the other hand, I guess we wouldn't waste time and money writing all those wills and trusts either - that would only improve on things for one of us!

Posted 3/2/2016 - Asset Protection

Another Planning Resolution by Phil Runyon

1/25/2016

Another Planning Resolution

In addition to resolving to being nicer people this year, let's also resolve to keep our planning documents in good order - and let's start with our trusts.

Many of us have trusts that say to use the assets for our children's or grandchildren's "health, maintenance, support and education" (HMSE) until they hit certain ages, and then to distribute what's left to them outright. Maybe the children (or a particular child) have already reached those ages but still need some oversight to use the assets responsibly. That might call for pushing the distributions out a little farther, or at least dividing them into two or more installments so poor choices at one age won't completely drain the tank. But consider . . . .

The HMSE standard for distributions can itself be problematic these days, in the event a child is faced with divorce. More and more courts (most recently in Massachusetts) are holding that trusts based on that standard can be valued and considered in property settlements with the child's soon-to-be-ex-spouse. The better plan in this judicial climate is to make distributions to or for the children completely discretionary by the trustee - so there's no quantifiable expectation of distributions at all. And to eliminate all specific ages for final distributions - so there's no way to compute (and award the ex-spouse) the present value of what may eventually be distributed. Needless to say, it's also important that the child not be his/her own trustee, or the court will see right through that arrangement - so consider using either an independent trustee or multiple trustees who would have to act by majority or unanimous consent. Of course, if you figure your kids just have to sink or swim at some point, then fine as long as you understand the issues.

While we're on trusteeship, consider this issue, as well. Many banks and brokerage firms have gotten extremely skittish and aren't willing to allow an agent to act for a trustee through the trustee's power of attorney - no matter what it says. That can cause real problems if you've gone to the trouble of titling all your assets in your trust's name (say, to avoid probate), but you're still the sole trustee. If you want a child or another agent to be able to act for or with you, you may need to appoint that agent as a co-trustee of the trust, or even to resign so the successor trustee can carry on for you.

This emphasizes how important the role of successor trusteeship can be, and why it's critical to make sure the ones you've designated are still right for the job. Maybe they've had health or financial setbacks of their own, or perhaps a new job has taken them several time zones away. Maybe if they're your contemporaries, you just need a new generation of trustees who can carry on as long as the trust is likely to be needed.

Finally, if your trust is more than 10 years old and hasn't had a recent physical, it's time for one. In addition to what I've already said, maybe the people or organizations you named as partial or contingent beneficiaries are no longer the apples of your eye; or perhaps the joint trust you have with your spouse says the surviving spouse can't make any revisions after you're gone, and now that seems like a good safety valve to include. And these are just the low-hanging fruit.

Posted 01/25/2016 EP

A Holiday Parable by Phil Runyon

12/22/2015

A Holiday Parable

Here's a story that might be useful to you or a family member or a close friend.

Many years ago I had a "senior" client who had become estranged from his daughters. They were upset because he'd married another woman several years after their mother died, and although their father's second wife was a fine person who did her best to embrace the family, the daughters would have none of it. They wouldn't speak to the new wife or even visit their father because "she" would be there. Finally, even the lines of written communication were severed.

The father was distraught by his daughters' reaction, which he viewed as extremely selfish. I heard his lament many times: Couldn't they see he wasn't replacing their mother, yet they were denying him the last smidgen of happiness he might have? Eventually, the situation also angered him, and he executed a new will that left the daughters out completely. I wrote the will the way he wanted it, but it always nagged at me that the outcome seemed more like a family tragedy than good planning.

A couple of years went by with no thaw in relations. Finally, I just called the father one day and asked whether I could contact the daughters and make a pitch for reconciliation. He said he would really appreciate that because he, too, had been feeling badly about where things stood. I called each of the daughters, and it was as if the floodgates had opened. They also felt terrible, as it turned out; they just didn't know where to start to repair the damage they'd done.

The story has a happy ending. The father eventually died, yes, but he and his daughters - and the new wife - made up in time.

The trouble is, this scenario repeats itself too often. Family members drift or break apart for any number of reasons. Sometimes they can't even remember exactly why. Then, as more time goes on, the ice thickens, and no one knows how to break through. Everyone worries that their overtures will be rebuffed, so no one picks up the phone and just says, "I'm sorry, let's fix things." Saying "I'm sorry" is critical, whether it's really your fault or not - and frankly, who cares at that point.

Anytime is the right time to make that call - but right now is the best time of all. No one held it against Scrooge that he did a 180 and became the lovable uncle. Bygones were forgotten, and no one looked back. In fact, being the one to break the ice not only feels really good, but it puts you squarely on the high ground, and may even short-list you for the Nobel Peace Prize - you could do worse than that.

Posted 12/22/2015 Misc.

Those Unavoidable Topics by Phil Runyon

12/1/2015

Those Unavoidable Topics

Remember several months ago when I explained how you might maximize your Social Security benefits with a technique called "file and suspend". It looked too good to be true then, and now Congress has said it is, starting in April of next year. So you do still have time to put it in place if you qualify, and if you're already reaping the benefits, they'll last up to 4 more years. To learn the ins and outs, though, I suggest you read my message on that topic and then contact your local Social Security office (I gave you the numbers) to see what your remaining options may be.

To some of you Gen X and Millennial folks, it may seem like all I talk about are senior and elder law issues. But remember, most of you still have parents, maybe even grandparents, and you need to know what to do when they need your help. Lately, I've seen a number of you really scrambling when you lost one of those senior partners and then had no idea what to do about it. That may be more their fault than yours, but you might have helped them create a better road map for you. So what to do? You can work with them on getting a form completed like the one I've attached here, or if you want to go more extensive and commercial, you can head to Amazon for The LastingMatters Organizer. Then you can start a lively discussion about all the important decisions that need to be made. By the way, at least 82% of people surveyed say writing down things for their families is important, but only 28% actually do it.

One of the "things" people should be clear about - that is, if they have any wishes at all - is the disposition of their actual selves. And unlike many post-mortem issues, like parceling out the family photos, this is one that needs to be attended to pretty quickly. There's lots of law on this subject, but let's just hit some high points. You can specify in writing who gets final custody of yourself, but it's probably not best to do it in your will, as that may not get dragged out for a week or two. Instead, one of those documents I mentioned in the last paragraph would be a much better place. If you don't say anything at all, the decisions default to your heirs in order of relationship - your spouse first, then your children, next your parents, then your siblings. If you're going with a funeral home, they know the drill, and while they get paid almost as much as lawyers, having someone else who can just take charge at a moment like that can be worth it (and I'm not being paid to say so). Even if you're not buying into the full array of services, however, the pros can handle "removal" and either arrange for burial or cremation. And if you're choosing the latter, you've also got the option of going straight to the Cremation Society of New Hampshire. One final point here: there's no law requiring embalming, no matter which option you pick, and there's no requirement that you be buried or cremated in any particular receptacle.

OK, let's assume all the final bodily arrangements have been made; then there's where you'll spend eternity (whatever you think that means). Clearly, a little guidance from you on that topic would be helpful, too. I mean, are you envisioning the family mausoleum at Mount Auburn, or under the venerable oak in the backyard that you climbed as a child? The former is easy, but the latter is also a possibility in New Hampshire; that is, unless your town has an ordinance against private burial sites. Better check it out, if that's what you have in mind. Even if that's allowed, though, you're required to notify the local cemetery trustees, and here's an important factor: if there's a burial site on your property - and that includes both bodily remains and urns of ashes - you're required to state that location in the deed when you transfer the property. Better mull that over before you make a final decision, as it could seriously impact the property's marketability, even way down the road. For more on all this, including increasingly popular "green" burials, you might check out nhfuneral.org.

Posted 12/01/2015 - Misc.

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Protecting Your Most Precious Assets by Phil Runyon

10/23/2015

Protecting Your Most Precious Assets

t's always important to get your affairs in order - just in case things happen unexpectedly - but there's one organizing job you really can't put off: your own kids!

The first thing to decide on would be who the kids would actually live with - and they'll need someone to provide a home base at least until they're legal adults at 18. That should be spelled out in a will, or you'll be leaving it to the rest of the family to sort it out for themselves, with results that could be totally different than you'd have wanted, not to mention perhaps contrary to the kids' best interests.

I mean, you certainly love your bachelor brother in Manhattan, or your sister in Nebraska who's already got a brood to keep her busy, but are they ready, willing and able to alter their lifestyles to do their best for your gang? And is either of those locales where you'd want the kids to grow up, no matter how well they might be cared for there? Or let's say you pick your thoughtful and caring parents, whom the kids love but who may not be able to hang in there as long as the kids might need them. An alternate choice would certainly be wise under those circumstances. Keep in mind, too, that your picks don't have to be family members at all, if you've got friends close by whom the kids think of as aunts and uncles and whose children are your own kids' best buds. But you've got to name those folks in your wills for sure, because most courts aren't going to choose friends over family otherwise.

Alright, let's assume you're over that first hurdle of who it's going to be, and you've gotten their OK to stand in for you should the need arise - you need to do that, too, of course. Now you might want to provide them with your parenting plan, preferably in writing, without sounding like you're a know-it-all or don't really trust the folks you're counting on. I've seen this done both well and very badly, but the best statements usually make your points by describing a typical day or week in the life of your present family. So, for instance, do the kids have chores and help out a lot; are they pretty conscientious about their homework or do you need to make sure the dog hasn't eat it; how do you feel about technology and all those social media distractions; and do you monitor the kids' every coming and going or generally trust them to make the right choices? You get the picture, and you'll want your stand-ins to get it, too, even if they decide to alter the rules as they see fit. After all, you do trust them, right, or you'd make another choice? Then, like everything else in life that morphs over time, you can adjust your thoughts in a new version as the kids get older, prove their good judgment and responsibility - we all hope - and make the honor roll or spend their afternoons in makeup study hall. Don't fret, I'm sure your exceptional parenting will shine through.

Posted 10/23/2015 Estate Planning

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