Estate Planning for LGBTQ+, Single Parents, and Non-Traditional Families

Are you prepared to ensure your family's financial future, no matter what the structure? Join us in a vital conversation with Jane Dearwester from McIntyre Elder Law, where we challenge the myth that estate planning is only for the wealthy or traditionally structured families. Jane underscores the universal necessity of comprehensive planning tools—like powers of attorney, wills, and trusts—to manage your assets and healthcare decisions effectively, safeguarding your loved ones from unexpected financial burdens.

Discover the critical importance of having a general durable power of attorney and healthcare power of attorney before incapacity strikes. Jane shares real-life stories that highlight the risks of not having these documents in place, such as the misconception that a spouse can automatically make decisions in North Carolina. We explore innovative solutions like the e-docs portal, which provides instant, secure access to your essential documents, and emphasize the significance of a living will and last will and testament to guide your family through the probate process and ensure your end-of-life wishes are honored.

Lastly, we delve into the complexities of Medicaid crisis planning and asset protection. Jane dispels the common misconception that you need to spend down all your assets to qualify for Medicaid benefits. Learn how proactive long-term care planning can protect your hard-earned assets and provide peace of mind for your future. With Jane's extensive experience and insights, this episode equips you with the knowledge to make informed decisions about your estate planning, helping you secure your future and protect your loved ones. Don't miss out on this essential discussion!

Transcript

Jane Dearwester: 0:14

Thanks again for coming Again. My name is Jane Deerwester with McIntyre Elder Law. Thank you all for being at High Wire. How many of you all have been here before? Anyone, I haven't been in this space before. I've been here at High Wire, but I haven't been in the event space. So thank you for hosting us. I hope you all are indulging and sampling all the wonderful things that High Wire has to offer.

Jane Dearwester: 0:38

As you can see from our graphic up here, tonight is the first premiere of our non-traditional family estate planning seminar series. I wrote a guide specifically focused on non-traditional families. That's on our website, which you can find at mcelderlawcom non-traditional and I had someone approach me earlier and I want to say too the same things that we recommend for non-traditional families work for traditional families. So the same things that we're going to talk about tonight powers of attorney, wills, trusts, all kinds of estate planning devices and all the different services that we offer as an elder law law firm they work for everyone. So part of the reason for bringing this idea of non-traditional families to the forefront is the reality of the world is the typical family of mom, dad, two kids, a dog and a house is out the window. That is the exception. That is no longer the rule. More than half of marriages I think it's upwards of 60% of marriages now end in divorce. So you're more likely to be divorced and maybe be on your second, third, fourth, fifth marriage than you are to be in one marriage that lasts a really long time. I'm going to tell you a little bit about myself Speaking of long marriages.

Jane Dearwester: 2:08

I'm the product of a long marriage. My parents have been married over 50 years. They are what most of us would consider a traditional family. I grew up in the Midwest, in central Ohio Me, my mom and dad and my brother, so mom, dad and two kids and now I live in Asheville. Many years later. I am a single parent here in Asheville and I've lived in Asheville area for 20 years, love it here and I love that Asheville really embraces all different kinds of lifestyles, all different types of demographics, and I think it truly is a great melting pot for a lot of different kinds of people to come together. And so we want to recognize that and really highlight that in the estate planning context and realize that everyone needs estate planning, everyone needs to have a plan in place, and I hope I'm not the first person to tell you this. But everyone is going to die. Everybody in this room, including me. We're all going to check out at some point.

Jane Dearwester: 3:16

So you have a choice. You can make a plan leading up to that, like what's going to happen. How do I want to be treated? Who do I want to help me when I'm most vulnerable and I don't have capacity to speak for myself? Or you're going to do nothing, which is option two. So it's doing something or doing nothing. Those are your two options. Yes, so you're going to do nothing, which is option two. So it's doing something or doing nothing. Those are your two options. Yes, so you're going to do something. You're going to make a plan, put a plan in place to protect your assets, to protect your body, to protect yourself. Or you're going to do nothing and other people are going to be stuck with making those decisions or legally have to make some truly impossible decisions on your behalf if you don't make any plan.

Jane Dearwester: 3:57

Estate planning, I think, is the ultimate act of adulting you are truly getting your affairs in order your financial affairs, your healthcare affairs. What's going to happen after you die? Who do you want to inherit your stuff? How do you protect the stuff that you have. What happens if you have a medical diagnosis or something happens where you have to receive assistance, or you have to go into a nursing home facility skilled nursing, at-home care? What are you going to do in those situations? Do you have a plan and are all your assets going to be on the table for medical and long-term care providers to come in and take everything you've worked for your entire life so that they take everything and your family is left with nothing, and potentially not only left with nothing, but left with bills they have to pay on your behalf? We want to help you avoid all of these things, so thank you for being here.

Jane Dearwester: 4:57

All the things I'm going to talk about tonight are great and wonderful, but everyone's situation is unique, so sometimes you'll come in, we have clients come in and we set up foundational documents. These are documents everyone should have, no matter your demographic, your pronouns, your gender identity, your family structure. Everyone should have these four things that I'm going to talk about first and I'm going to highlight them quickly here. They are the general, durable power of attorney, also known as the financial power of attorney. Every person in this room, every person in Asheville, every person everywhere should have the general durable power of attorney. Every person in this room, every person in Asheville, every person everywhere should have the general durable power of attorney, a healthcare power of attorney, a living will and a last will and testament. So those are the documents everyone should have in place, and I'm going to talk about each of those In turn.

Jane Dearwester: 5:51

I'm going to talk about some other things, so let me start and talk about our foundational documents. I want to make sure we get at least through those tonight, and I'm also going to talk about some real estate related items. Number one, because that's my background in real estate. I also have my real estate license as well Pick that up along the way and so real estate is the number one asset that most people are concerned about protecting, for good reason. This is usually the biggest investment we make in our lifetimes. There are also homestead properties that families have lived in or have owned as a family for decades, for maybe a hundred years, especially around here in the mountains. This is like a hundred acres that great great grandfather owned and it's been divvied up all over the years. And are you going to be the one to sell it outside the family or lose your home in foreclosure so that somebody else from outside the family's coming in. Those kinds of things really can cause some wrinkles at Thanksgiving dinner when everybody gets together. So I'll talk a little bit about protecting real estate, because that's always a big question and very important.

Jane Dearwester: 7:01

I'm going to start with the general durable power of attorney, or financial power of attorney. This is, in my opinion, the most important document for everyone to have in place, again, regardless of your family situation, regardless of what assets you have or don't have. The general durable power of attorney is a document where you name an agent and we usually recommend name at least two. Some people say I can't even think of a good one, but at least think of one and this agent, this person that you pick, that you designate under the power of attorney, that person is going to have the legal right to do anything you can do, right. So anything with your bank accounts, with real estate transactions, anything that you could do yourself, you're empowering this person to do on your behalf. So choose wisely, choose this person wisely.

Jane Dearwester: 7:58

I have a case right now in Brevard where a son forged a power of attorney in the name of his father, sold his father's house, took all the money and blew it. And we're suing son right now. And I have to mention he also took dad's dog, not just the $100,000 plus from the sale of the home, he took the man's dog. Who does this? Who does this to anyone? Much less your parent. So there are very strange situations and strange motivations that happen in the world. That's what I'm learning, and so you very much want to pick wisely. Now, in this example, my client didn't choose him. This guy forged the power of attorney.

Jane Dearwester: 8:41

So you want to be very careful what you're signing. First of all, this is just a free piece of free legal advice in general. Read what you sign. But the power of attorney document is going to empower your agent to help you when you're at your most vulnerable point. So when you're still alive but potentially your cognitive abilities are faltering, or if you're in a coma, or if you have some kind of diagnosis where you can't speak or communicate, at that point, when you're in that state where you can't speak, communicate, or maybe your cognitive abilities have declined, you can no longer sign a power of attorney. That ship has sailed. So you want to go ahead and put this into place while there's no question of your competency, while you know who the agent is that you want to designate and you have a choice. The way that we do them by default, so to speak.

Jane Dearwester: 9:37

Again, all the documents are customized. But for most people we recommend, when you sign the document, make the power of attorney vest immediately in your agent so that day when you sign the document they could go to your bank, take that document to the bank and help you do banking transactions. Now some people, for their own reasons, which are completely valid, do not want that happening immediately. They say I don't want this to kick in until I can't make decisions for myself and I want a medical doctor to make that determination Am I competent or not? So that's called a springing power of attorney. We can do that too. It's just a simple tweak to say we don't want it to come into effect now, but we want to go ahead and sign it now while we're competent, while we're thinking about it and get it in place.

Jane Dearwester: 10:29

That's a document, again, that we recommend to record at the county register of deeds. If you live in Buncombe County, we record it here. If you live in Henderson County, which is where our office is, downtown Hendersonville, we record it in the county where you live. The reason that we record it is it makes it easy for third party practitioners like attorneys, accountants, financial advisors et cetera. They can just look it up online in the public registry and see, oh yep, you're the agent for this person, you have the authority to act on behalf of this other person, and it's not something you have to carry around with you, and so it's just an added level of convenience.

Jane Dearwester: 11:10

We've had some clients who are very emphatic about I do not want this to be recorded, I don't want this to be public information. That's completely your choice. Does not have to be recorded to be valid. Doesn't have to start immediately to be valid. You get to kind of pick and choose and tweak the documents to fit your goals and kind of your sensibility, like how you want it to be. You really can customize it.

Jane Dearwester: 11:34

Yeah, that's a great question she's asking if you don't have kids, do spouses usually name each other as their agent and a power of attorney? Yes, most of the time. And then who else? Who would be second? And so, yes, siblings Sometimes people even name their parents Again, if they're in good health, that's not as common, but siblings and we've had people named friends, family friends, even a cousin. So you're really looking at the sensibility of this person. Number one, first and foremost, do you trust this person to make the right decisions and to take care of you and act in your best interest? That person doesn't necessarily have to be related by blood to be the person you trust the most in the world. That person does not have to be a member of your immediate family. So you really can choose anyone you want and just know that if you choose someone and then determine, oh no, I did not choose wisely, you can revoke it, you can change it If you've got it recorded. You've got to record something saying this is no more, that you want to revoke it.

Jane Dearwester: 12:40

The healthcare power of attorney I'll talk about next very similar but, as the name kind of implies, it's just about healthcare and medical decisions, and so this is one that is not a public document. This is not a document that gets recorded and it does not become effective unless and until you're not able to make your own decisions for yourself, and that's maybe somewhat intuitive. You want to retain your own decision making for your body and your medical care as long as you're able to make those decisions. But once you kind of cross over that line and again, a medical doctor not an attorney, not somebody else, but a medical doctor, probably your primary care physician or somebody who's treating you gives a recommendation, this person can no longer make decisions for themselves. That's when your medical agent, their role, comes into play and again, so important for so many different reasons that person will be able to get all your medical records. The healthcare power of attorney includes all the HIPAA authorizations and really allows your agent to be able to seamlessly attend to your care, especially in the case of an emergency. So again, if there's an emergency, you're in a car accident, you're not conscious immediately your healthcare power of attorney will be able to act and to speak with the medical providers and engage with them, just as you would be able to if you were able to, to talk about and discuss treatment. That's a really tough position. The question is about what if the doctor or the facility, the hospital, is not honoring the power of attorney. It certainly does happen.

Jane Dearwester: 14:32

The way that we draft our documents, we draft them to be extremely comprehensive, so there's kind of nothing left to the imagination. And actually sometimes we have clients complain that they're like can you just give me the short form Like this is too much, I don't need all of this. Then, sure enough, something happens where they're like, oh my God, I'm sure glad that thing was on page 17, because that's the thing I really needed and there's no way to anticipate it. So the way we've anticipated it is through experience, through litigation, seeing what things are litigated and we're like, oh, we need to put that in right, we need to put that into our document. We just had a case on this. So we're always evolving, improving and taking from real life scenarios to improve all of our documents.

Jane Dearwester: 15:18

That's a really specific and tough situation if the doctor is not honoring a power of attorney. We don't have too many problems with doctors kind of questioning our forms in particular, but we have clients that have brought that to our attention and I think really it ends up being a conversation between one of the attorneys at our office and the medical practice to really understand the doctor's concerns. My thinking is the doctor is not trying to give anyone a hard time. What do you think is in the doctor's mind? Why are they resistant? They think they're going to get sued. Of course they think you're going to sue them or something's going to happen or they're going to give information to someone and then they're going to have to deal with a lawsuit, a malpractice suit or some kind of breach of privacy lawsuit. So they don't like to get involved in that. We want doctors to be focused on care, but we realize those situations can come up.

Jane Dearwester: 16:20

And just to mention here if you don't do a healthcare power of attorney when you're able and competent and something happens and then you're no longer competent, then what Then? Who's in charge? Does anyone know what happens if you don't do either of these powers of attorney? Pardon, that's good, she's saying whoever takes you to the hospital, which is a good guess. But what happens if you don't designate anyone as either your legal or medical agent? The only way to get help and have someone advocate and act on your behalf is to go through a guardianship process in the courts.

Jane Dearwester: 17:07

So and this is also important very common misconception is people believe that once you're married well, I'm married, I don't need a power of attorney because if something happens to me, you know I'm married, my husband, my wife, my spouse they'll take care of it. Nope, your spouse in North Carolina is not empowered to act on your behalf without a power of attorney in place. That is a very common misconception that people say, oh no, I signed for him or I signed for her, yeah, I'll make decisions for the other person. Nope, not legally. You have to have the power of attorney to be able to act, even on behalf of your spouse in a life or death situation. Yes, you have to have a power of attorney to be able to act. You cannot make decisions for your spouse without a power of attorney, even in an emergency situation. You need to have that document in place.

Jane Dearwester: 18:02

And again, one of the great benefits our firm offers is, once you sign up, we get all your documents in place. Once everything is signed and official, we upload it to a bank level encrypted place in the cloud where you can also give access to your agent or maybe your loved ones, the person you name as your agent executor in your documents, so they will also have access. So you know, not many of us are carrying around these papers with us, but we're all carrying around this magic device that connects us to the internet all the time our phones. So having instant access to all your documents through our e-docs portal is a huge benefit and it doesn't cost anything extra. That's just something that we provide when we set you up as a client, and so I think that e-docs access is really an incredible benefit that we offer, and I know I've heard direct feedback from clients where that has come in extremely handy. Where they've been somewhere where they needed to have that medical power of attorney. They could show it to somebody in an emergency. Look, look, I'm the agent for my spouse or my mother and get her to the hospital. Let's do whatever has to be done. So those documents are very important.

Jane Dearwester: 19:24

Again, if you don't have them in place, you've got to go through guardianship. I've got a handful of guardianship cases I'm working right now. Like anything in the courts, it's slow, it's expensive, people can contest and make it longer and cost more money. So you can cut all of that contingency out and just plan ahead. Once you've designated an agent under the powers of attorney, you don't have to worry about someone needing to be a legal guardian. You've already designated someone to act on your behalf. You don't have to go through that process. Your living will is kind of a misnomer.

Jane Dearwester: 20:00

It's also called the advance directive for the desire to die a natural death, and that is the document where you get to decide if something happens to me and I'm incapacitated or in an incurable state where there's no chance of recovery, it's okay to let me go. Or maybe your decision is no keep me plugged in indefinitely, period. Keep the power bill running to Duke Power. Keep me plugged in as long as possible. And again, this is a decision you need to make, and please make it for yourself. Do you want to be kept alive by machines? Do you want artificial hydration and nutrition? Do you want those to be administered to keep you alive?

Jane Dearwester: 20:46

Again, this is only in the state, if you are in a vegetative state from which you are to a reasonable degree of medical certainty that you are not going to recover from it. So this isn't just hey, I was in a car accident. I've got a broken arm. Don't do anything to help me. This is not this. This is in a very specific, a very serious situation. What do you want to happen with your body? And please don't leave that decision to your loved ones and somebody else to decide on your behalf. Please go ahead and make that decision while you're confident and during your lifetime. So this is not a discussion that your family members have to have when you're in a very you know critical medical state. That is a tough situation for everybody anyway, so let's not add to that by someone having to make these impossible decisions. People lament about those, for the balance of their lives, having to make those decisions.

Jane Dearwester: 21:47

I want to talk about the last will and testament. This is the document that most people equate with estate planning. Right, this is do you have a will? This is probably the most popular document, the document that, again, most people are most familiar with. And, again, most common misconception with a will is people will say oh, I'm all set to go, I've got my will, I don't have to worry about probate, I'm good to go. No, let's pause there. The will is the guide through the probate process. Having a will does not avoid probate. Having a will gives you a guide through probate.

Jane Dearwester: 22:31

If you don't have a will, what happens to your stuff? Does anybody know? If you pass away and you don't have a will, what happens is it's called intestate succession, that's just the legal name of it. But the all-powerful legislators in Raleigh, the North Carolina General Assembly, have enacted statutes to say, hey, if you don't do your homework, if you're not adulting, if you don't put your estate plan, your will, together. Here's how we've decided in our infinite wisdom to split up your stuff.

Jane Dearwester: 23:03

So if you don't have a spouse and just have children, all your stuff goes to those children in equal shares. If you just have a spouse and no other descendants, your spouse will inherit and then it goes. I was just looking at it before the seminar tonight. Yes, right, everything goes to your sister. If she's, if she's, she's your only like biological relative, she would get it. So, um, and then it even goes down to like cousins and uh, again doing real estate work. Um, somebody would die and we'd have to figure out who the heirs were, and sometimes it wasn't so clear and then we'd have to figure it out. It's like oh, you have one 64th of an interest in this property. Those were always super fun cases to be a part of and try to figure out and track down all these people.

Jane Dearwester: 23:53

So if you don't make a plan, your assets are going to be. They're going to go through probate first of all. The court is going to appoint if there isn't anybody available, or if nobody comes forward to be. They're going to go through probate first of all. The court is going to appoint if there isn't anybody available or if nobody comes forward to be the executor or personal administrator of your estate, the court's just going to appoint probably a local attorney to administer your estate and your stuff is going to get split up according to state law. So you're kind of right when you said the state. The state is definitely involved, but it's the state of North Carolina doesn't get your stuff, but the legislature, the statutes of North Carolina, are going to dictate who gets what, and again, it's a long, expensive process.

Jane Dearwester: 24:33

So having your will in place is important, and even better is avoiding probate. So I want to talk at least for a minute on how do we avoid it. So one method to avoid probate is to create a trust. So trust is a private document. This isn't something that gets filed at the courthouse unless there's litigation about it, and there's usually also a companion will along with a trust. So we create this trust and we put your assets the assets that are able to be put into trust to serve as this protective bubble around your assets.

Jane Dearwester: 25:11

And one of the other advantages of trust planning is that you can get really specific about how you want to distribute your assets, particularly for non-traditional families. I see this the most in blended families, where it's maybe like second, third marriage and people have kids from before and then they come together and they have kids together. It's like, well, when husband passes I want part of my estate to go to my oldest children from my first marriage, but I don't want to disinherit these new children from the second or subsequent marriage. So trust planning is extremely important and extremely effective in blended families for that very reason. And, like I said, there's always a companion will that goes along with the trust to say, hey, if I forgot to put anything in my trust during my lifetime when I die, put it in there now. So we call it a pour over will. So it's like anything I have just put it into the trust at my death. It can serve as a very strong, like I said, protective film, a protective bubble. So if they're going to try to get through that, it's really going to be a hefty effort.

Jane Dearwester: 26:28

North Carolina has automatic it's called an incohate marital interest. This is another thing. That's a common. It's not a misconception. People just don't know it. So in North Carolina, if you are married, your spouse owns a marital interest in all real property that you own in this state unless you have a prenuptial agreement that says otherwise. Okay, and so once you get divorced, the divorce severs it. That's right. One of the phrases we use is it takes one to buy and two to sell. Right, so I could go buy a property myself, get married later and my spouse would have to sign off for me to sell the property that I bought myself, because immediately upon marriage, without a prenuptial agreement, that person acquires marital interest in your property. If you feel overwhelmed, I've done my job tonight by sharing this information with you. I truly invite you. Please make a appointment to come in and speak to us. There's no obligation. If you haven't been to downtown Hendersonville in a while, here's your express invitation to come.

Jane Dearwester: 27:27

Our practice does cover a lot of things in the elder law realm that affects the aging population. Not only do we do all the transactional real estate and related litigation, we do all the transactional real estate and related litigation. We do veterans aid and attendance benefits. We work with the VA and try to support our veterans to make sure veterans and their spouses and their children are aware of the benefits offered to military. Our founder, greg McIntyre, is retired military and so we definitely honor our veterans. Greg McIntyre is retired military and so we definitely honor our veterans.

Jane Dearwester: 28:07

We have an entire division for crisis Medicaid crisis planning. We do long-term care planning in advance to put you and your assets in a position where you qualify for long-term care Medicaid benefit. For long-term care Medicaid benefit, you do not have to spend everything and lose everything you've worked for your entire life to qualify for long-term care. That's a very common misconception, as everyone has heard about the spend down. You can't have more than $2,000 in your bank account. So well, we've got to spend all the money we've saved our entire life.

Jane Dearwester: 28:38

No, please don't do that. Please come in and talk to us and make a plan so we can tell you how to structure your assets strategically. It's not shady. There's nothing wrong with it. It's about knowing the rules and setting yourself up for success, and if you don't know the rules, there's so much to know. I've now been with McIntyre Elder Law a year. I can confidently say I literally learned something new in this realm every single day. There is so much to know. So please use us as a resource for your continued education in this realm about how to set yourselves up for success, and I very much look forward to seeing you all in Hendersonville or somewhere in between.