Elder Law Report
Elder Law Report
Keeping Your Love Story Strong: Protecting Each Other with Legal Tools
Can a marriage certificate truly safeguard your assets and protect your loved ones? Join us as we explore this provocative question with attorney Brendan Begley and Samantha Gordon from McIntyre Elder Law. In our special Valentine's Day episode, we promise to uncover the truth about marital rights and estate planning, debunking common misconceptions along the way. Brendan and Samantha share captivating real-life examples that highlight the essential role of wills and powers of attorney in ensuring seamless asset management and decision-making, particularly in cases of incapacity.
Throughout our conversation, we shine a light on the potential pitfalls of neglecting an estate plan, including how North Carolina's intestate succession laws could lead to unintended asset distribution. Discover why even spouses need a power of attorney to handle individual accounts and manage shared property effectively. We emphasize the necessity of establishing foundational estate planning documents to avoid legal complications as you age, especially if minor children are involved. If you're contemplating the future of your family's security, tune in for valuable insights and learn how proactive planning can safeguard your family's legacy. For those seeking personalized advice, McIntyre Elder Law is offering free consultations to help you take control of your estate planning needs.
Hi, I'm attorney Brenton Begley, attorney and partner with McIntyre Elder Law. I'm joined by Samantha Gordon. Say hi, Samantha.
Samantha Gordon:Hi everybody, Happy Valentine's Day.
Brenton Begley:It is our Valentine's Day episode, where we're going to talk about how to protect the ones that you love, especially your spouse or your significant other, in regards to the legal risks that you face as you age. So you know, I think this is a good context to talk about some of the misnomers that folks have when they are doing estate planning. So we do quite a bit of estate planning. We are estate planning elder law attorneys. We see a lot of people all the time, especially couples. The majority of our clients come in the form of couples, right, they come together to do their estate planning together, and we give a lot of seminars. So we get a lot of the same questions and the same reactions from people.
Brenton Begley:So one of the things that I've noticed, amanda, is that a lot of folks don't quite understand the importance of having estate planning documents in place when it comes to their relationship with their loved ones. So specifically, I'm married. Why can't I act on my wife's behalf? I should already have the ability to make decisions on her behalf. If she can't, why would I need power of attorney?
Samantha Gordon:Yeah, every time that I explain that to a potential client or a current client they are baffled by that. They don't understand why, just because they're married, they would not have access to their spouse's individual accounts. So in North Carolina if your spouse has an individual account or even if you own property together, you can't just automatically sign off for your spouse if you're married or get access to their individual account if they were to become incapacitated. You actually have to have a document in place, a power of attorney, that says I am my husband, my wife, whoever it is my spouse's agent and I can make those decisions for them. I can access these accounts, I can do this, I can sign off on real estate. You have to have a document in place that actually says that.
Samantha Gordon:If you don't, I've been in a situation before where I actually had to have a husband come to our office because his wife became incapacitated after a cruise, could not access any of her accounts, could not handle her real property. We had to pursue a guardianship through the courts for him to become the guardian of his own wife because there was no power of attorney in place. And so people just don't know that. And it's so important to understand why documents while you're alive are just as important as documents when you pass away.
Brenton Begley:Right, you know, unfortunately that can be more common of an occurrence than we'd like it to be where a spouse is seeking guardianship of the other because they never put a power of attorney in place and get to a point where they need to act on their spouse's behalf because their spouse became incompetent. It's too late to put a power of attorney in place. So you know, you mentioned, you know, individual accounts. Individual accounts are not accessible by anyone other than the account owner unless you have power of attorney. And same thing with real property, as you mentioned.
Brenton Begley:The old saying goes it takes one to buy, two to sell.
Brenton Begley:So what that means is that if you're in a couple and you're married, one of you can go out and buy property.
Brenton Begley:But if you want to turn around the next day and sell that piece of property, you got to have both spouses sign off on the transfer of that.
Brenton Begley:So that means you can't even put a protective deed on a property or put it into trust on behalf of your spouse if you don't have power of attorney for your spouse and your spouse is not able to sign that deed legally because they lack the capacity to do so. So very important to have that in place and again, it makes sense too. Here's the way I explain it is you know how long it takes to get a divorce in north carolina one whole year in a day, right? So you have to be separated for a year before you can get divorced. So imagine if you know, if spouses could act on each other's behalf for the full year that they were separated, right? Maybe switching properties around each other's names, trying to take each other's you know assets. So it you know, if you think about it that way, it makes sense that spouses don't automatically have the ability to act on each other's behalf by virtue of just being married.
Samantha Gordon:Correct.
Brenton Begley:That being said too, here's another misnomer that I see all the time. I don't need a will, because when I die, everything's going to go to my spouse anyway. What about that one?
Samantha Gordon:Nope. So in North Carolina there is something called interstate secession, where North Carolina has already determined who your heirs are. If you do not have an estate plan in place that says otherwise. And if you're married and say you have two children and if something were to happen to you, your spouse is entitled to your assets, but only a certain amount, and then it could be split between your spouse and your children. So your spouse automatically, unless you have things designated with beneficiaries, unless you have an estate plan in place, not everything would just go right to your spouse. And if you have minor children, that could present a very big issue where now your spouse and your minor children could inherit from you, which will cause a lot of headaches because you'll have to go through a lot of court processes in order to make sure that those assets can be distributed appropriately. So that's why it's so important to have an estate plan in place that lists exactly what you want to happen and who actually gets your assets.
Brenton Begley:Yeah, and practically speaking to you know, even if you're like, okay, I'm cool with my spouse having you know their 50% of the estate or whatever, then you know they still have to figure out what those assets are. What comprises the 50% of the estate? So it's not just some verbal agreement or what you've stated in the past does not carry. It has to be within some type of operative legal document. And, that being said, having a will is a nice thing, but it does not guarantee that the assets are going to go to your loved ones because of the possible risks of probate. Remember that's the opportunity for a to go to your loved ones. Because of the possible risk of probate. Remember that's the opportunity for a creditor to make a claim against the estate, possibly divest the estate of certain assets that would otherwise flow to your spouse. So really, one of the best ways to protect a surviving spouse if you were to pass away, is to make sure things pass to them automatically outside that probate process, because it can be so dangerous to leave those behind.
Brenton Begley:Another misnomer, you know, is hey, you know I may have my spouse named as my healthcare power of attorney, but you know I'm going to. How about? I'm going to rely on that or someone else to make the life or death decision to remove me off of life support if that ever comes about. So what I see as a problem there is if you're relying on a health care power of attorney to make that life or death decision. That number one is a hard decision to make.
Brenton Begley:I wouldn't want to have to give that decision to anybody. And number two, you know you can have a family fracture over that decision, especially because I don't know if you know this, samantha but families are not great at communicating, so you know. And they don't like to talk about life or death things, right. It's a hard conversation to have. A lot of people don't have it. It can be awkward and really make Thanksgiving dinner very awkward.
Brenton Begley:To talk about whether or not to remove me from life support, right? So a lot of people avoid that conversation. So they may tell the person they've named as their health care power of attorney and then leave out. You know that conversation, you know everybody else, right? So so the person, you know that conversation, you know everybody else, right? So so the person, you know who makes that decision. They may know what the wishes of mom or dad is, or husband, wife is, whereas the rest of the family members may not know. So I think personally that it's really important to have a living will in place, to have a formal declaration for your desire to die an after death. That way, if someone's taking you off life support and it's supported, their decision is supported by, you know, this document that you've signed, it's been witnessed, it's been notarized and really that is your decision instead of it being their decision.
Samantha Gordon:Yeah, and the way that you know I usually explain the, I also call it an advanced directive.
Samantha Gordon:Sometimes people get confused with the term living will as the last will and testament, and so I generally refer to it as an advanced directive. But it deals with three possible situations that you can be in If you have an incurable or irreversible condition, advanced stages of dementia, or if you're in a coma and a doctor has determined to a high degree of medical certainty, whatever, that means that you are not coming out of that situation and a decision needs to be made. And so the advanced directive can be presented to the doctor and it says hey, this person my wife, my husband has already determined that if they were ever in this situation and decision needed to be made. This document says that they want their dignity maintained and that they want to be kept comfortable, but take them off of the life prolonging measure to determine that. And so it allows that person to have a say when they really no longer have a say at that point. But also it takes that burden off of their family, their healthcare agent, to have to make that decision.
Brenton Begley:Correct. That's right. So you know, I think that a spouse, if they're really thinking about okay, how can I protect my loved ones and myself? One of the first steps that they should take is to put the foundational documents in place. The documents we talked about today, which are the general durable power of attorney, the health care power of attorney, the living will and then the last will and testament. No-transcript plan. That gives you a level of clarity, a level of certainty, is going to be the, you know, not only the catalyst for protection for the money and property, but also, emotionally, it's going to take some weight off your shoulders and give you that peace of mind.
Samantha Gordon:Yeah, it makes it feel less transactional when you're going through grief. There's a lot that you need to process and if things aren't in order and there's no direction on what to do it, then approach that and really make sure that things are going to be taken care of. It's a guide for them and it makes things a lot easier.
Brenton Begley:Right, it's that last gift that you can give a loved one after you pass away to ensure that you know you do not leave a burden behind.
Brenton Begley:Correct, that's right. Well, thank you, Samantha. This has been a very informative discussion. I think that it's helpful to put it in this way to understand hey, you know what misnomers are out there, what misunderstanding is out there with respect to how estate planning works, and you know, if you're a spouse, you still have to have power of attorney. If you're a spouse, you really ought to make sure that your loved ones, including your spouse, are in your estate plan, and it's important to put those foundational documents in place. So if you have questions about estate planning and elder law or anything else that we do here at McIntyre Elder Law, give us a call, okay, or visit our website, mcelderlawcom for your free consultation. Thank you again, Samantha, and happy Valentine's day.
Samantha Gordon:Bye everybody. Happy Valentine's day.
Brenton Begley:Bye.