Estate Planning

Look Who’s Talking: A Book Talk by Joanne Seminara, Esq.

Look Who’s Talking: A Book Talk by Joanne Seminara, Esq.

Meet Joanne Seminara, Esq.
Saturday, May 13th, 2017
2:30 PM
Fort Hamilton Library
9424 4th Ave
Brooklyn, NY 11209

Ms. Seminara, a Co-Author of 5@55: The 5 Essential Legal Documents You Need by Age 55”, will provide advice about Wills, Health Care Proxies, Living Wills, Powers of Attorney, Digital Diaries and the protections each of these documents provide. 

 

GRIMALDI & YEUNG LLP:
Phone: 718-238-6960
Brooklyn and Manhattan Offices:

9201 4th Ave, 6th Floor
Brooklyn, NY 11209

546 Fifth Avenue, 6th Floor
New York, NY 10036

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

Your “Digital Diary” is an Indispensable New Tool in Your Estate Plan

Your “Digital Diary” is an Indispensable New Tool in Your Estate Plan

All of us spend increasingly more and more time on computers, smart phones and on multiple online sites where we communicate with our family, friends and work colleagues.  Perhaps you shop, pay bills, bank, manage investments, create and share information, photos, images and music, and enjoy other recreational pursuits online.  All of these communications, contacts and accounts, and even the fact that you use these sites, make up your digital life and are your “Digital Assets.” And it can be a great tool to help with your Estate Planning.
The following information comes from the book “5@55: The 5 Essential Legal Documents You Need by the Age of 55″, written by Grimaldi & Yeung Partners Judith D. Grimaldi and Joanne Seminara.

These Digital Assets may be saved blogs and photos, frequent flier credits and other items of value, such as domain names that could have monetary value.  Digital assets, such as photos, have sentimental value and historic family records may be even more important to you and your loved ones, especially in the event of sudden death.

Therefore, you need to provide a way for these assets to be catalogued, accessed, managed, protected, “given” to others and/or deleted if you die or become disabled.

Your Will and/or Trust and Power of Attorney needs to contain special language which gives your Executor and/or Trustee and the agent named in your Power of Attorney access to your Digital Assets. Without this special access language, these persons who are your agents may not have access.  That is because Digital Assets are subject to the Term of Service (TOS) Agreements the providers of these sites (i.e. Facebook, Google, American Airlines, LinkedIn, etc.) impose on all users.  Remember that box you are forced to check when you “log in” to a new site, stating that you agree to certain terms and conditions of use? These TOS agreements can restrict access to your Digital Assets by others, even if they are named as an Executor in your Will or your Power of Attorney agent. The special language provided in the documents our firm prepares for you, allows for this access by persons you have chosen and can override these site restrictions.

We have provided you with a copy of a “Digital Diary” booklet for your use as a way to provide your trusted agents with complete and updated information about the electronic sites you now use or will use in the future.  We urge to fill in and regularly update this easily amendable Digital Diary. The Diary can catalogue all of your electronic sites, listing each site’s user name and password for you and your trusted agent, Executor or Trustee. They will be able to access the information on these sites if you become disabled or die.

This Digital Diary may be accessed as a downloadable, fillable form on our website at www.gylawny.com.  We suggest that you download it, fill it in and amend it every time there is a change in your online sites or information needed to “log in” to each site.  Print, and as needed, replace a paper copy of this Digital Diary and retainer it in a safe location known to one or more of your trusted agents, and perhaps a spouse, partner, child or friend. The information in your Digital Diary should not exist solely on your computer.   If you bank on-line it is important that your agent or fiduciary know about the existence of your bank accounts or other monetary assets so that these assets may be used (as needed) to pay bills, and to avoid interest and penalties.

Please think of the Digital Diary as a starting point for creating your own unique catalogue of your electronic information.  If the Grimaldi & Yeung Digital Diary does not meet all your needs, we encourage you to tailor it by adding categories of online sites or information that may be particular to you.  For example, if a site requires you to answer security questions when you log in, you may wish to add the answers to these questions to your Digital Diary.  If you trade in Bitcoin or are involved in certain types of on-line activity for business or entertainment you may need to add more information to your Digital Diary.

We will not retain a copy of your Digital Diary in our files and you do not need to provide us with a copy of same.  We urge you to safeguard your Digital Diary as you would any other precious asset so that it does not come into the wrong hands and create a risk of fraud or identity theft.

Please Note and Consider:

  • Several on-line sites allow you to designate a person to access your account by registering that person with the provider. You can provide the on-line provider with specific directions regarding the identity of persons who are allowed to control your on-line presence. You may also be able to provide additional directions regarding the access to your account. This registration of a person for access or control will override any designation provided in your Will, Trust or Power of Attorney.
  • If you become disabled or die and an on-line account becomes dormant because its existence is unknown to your agent or fiduciary or he/she is unable to access it, this account may be vulnerable to identity theft.
  • If an Executor or agent is unaware of a bank account because he or she finds no paper record of said account, the funds in the account may be unknowingly lost and sent to New York State to be held as “unclaimed funds.”

Contact us at Grimaldi & Yeung LLP with your questions and ask for your free copy of the Digital Diary or download it now at www.gylawny.com. We look forward to hearing from you and helping you safeguard your digital life.

Additional resources provided by the authors, Judith D. Grimaldi & Joanne Seminara

GRIMALDI & YEUNG LLP:
Phone: 718-238-6960
Brooklyn and Manhattan Offices:

9201 4th Ave, 6th Floor
Brooklyn, NY 11209

546 Fifth Avenue, 6th Floor
New York, NY 10036

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

Elder Care Planning – As Your Family Member Ages – Your Family Can Plan

Elder Care Planning – As Your Family Member Ages – Your Family Can Plan

As your family member ages, health issues such as memory loss and lack of energy may emerge. Financial and debt can become more difficult. If your family member is beginning to experience a slowing down, here are some key warning signs they may now need you to begin elder care planning:

  1. Memory loss or dementia can lead to financial responsibilities being neglected. Watch for unusual spending patterns, not remembering which bills have been and have not been paid or overdraft/late fees. An inability to stay on top of routine banking is a first sign of mental slippage or possible cognitive issues. Unfortunately, scammers feed off of this pattern and may target your elderly family member, and steal from them.
  2. Start early and ask about your family member’s financial plan while they have the ability and desire to communicate effectively. Any preparations you can complete before will help, thus a good starting point is to review your family member’s financial situation, and create a plan.
  3. Designate one trusted individual to take charge of financial matters when needed. The choice should be as unanimous as possible. The goal is to ensure bills are paid on time, taxes are completed and the overall finances are up-to-date. Family transparency is crucial to make this work. The standard is always in the elder’s best interest.
  4. Ensure each asset is properly titled and has the beneficiary of your family member’s choosing, clearly designated. Suggest a meeting with a qualified attorney to make sure updates and changes have been made reflecting final wishes. A Trust may be the best comprehensive solution to holding assets.
  5. Establish automatic bill pay of routine household bills wherever possible. As memory loss persists, having automatic bill pay will ease stress and ensure debts are paid. Automatic drafts also leave a paper trail which can help you maintain order.
  6. If your family member is still financially independent, remind them often of money-related scams. Demonstrate how they can protect themselves from fraud. Give them examples and tips on how to resolve any potential risks.

Take time to talk with your parents about a plan of action regarding caregiving and financial matters. This will alleviate stress related to these issues. If you want help in getting these conversations on elder care planning started, please feel free to call Grimaldi & Yeung LLP at (718) 238-6960, and we can help begin your family member’s life plan.

The source of this article is from “Life Care Planning Today” by April Hill, Esq.

GRIMALDI & YEUNG LLP:
Phone: 718-238-6960
Brooklyn and Manhattan Offices:

9201 4th Ave, 6th Floor
Brooklyn, NY 11209

546 Fifth Avenue, 6th Floor
New York, NY 10036

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

February 14th Sweetheart Engagement: Partner Joanne Seminara to speak at AARP Bay Ridge Chapter 3630

February 14th Sweetheart Engagement: Partner Joanne Seminara to speak at AARP Bay Ridge Chapter 3630

This Valentine’s Day, Grimaldi & Yeung LLP Partner Joanne Seminara, Esq. will speak at the Bay Ridge AARP Chapter on the topic of Elder Law and Estate Planning.

When
Tuesday, February 14, 2:30pm

Where
Shore Hill Community Center
9000 Shore Rd, Brooklyn, NY 11209
(91st Street between Shore Road & Colonial Road)

Topic
Elder Law, Estate Planning

Joanne Seminara, Esq.
Partner
GRIMALDI & YEUNG LLP
9201 Fourth Avenue, 6th Floor
Brooklyn, NY 11209
Tel:   718-238-6960
Fax:  718-238-3091
jseminara@gylawny.com

The “Power” Behind The Power of Attorney

The “Power” Behind The Power of Attorney

An excerpt from the book
5@55: The 5 Essential Legal Documents You Need by Age 55.


Television shows or movies often use a deceased’s will in the plot (there have even been commercials featuring the reading of the will) so everyone is pretty much familiar with wills. And while there’s no doubt that having a will is very important, let’s face it, a will only comes into play after you’re no longer in the picture. If things don’t work out right at that point, how concerned are you going to be? But there are lots of things that can happen to you while you’re still alive and kicking (even if only barely) that can render you incapacitated or unable to act. For example, you are on a cruise, the ship’s engine catches fire and you’re stuck in the middle of the ocean for a week. It has happened. In the meantime, your son gets arrested and you want to arrange bail for him but you’re thousands of miles away stranded on a boat that’s bobbing on the deep blue sea. Or maybe you were due to sign papers to refinance your mortgage and your failure to sign will result in having to pay a higher interest rate. The only thing that might save the day in such situations is to have a duly appointed agent in a legal document called a Power of Attorney.

Some people think lawyers are too pushy when it comes to the subject of the Power of Attorney but if you heard the horror stories that lawyers encounter, from inability to access funds, having a house go into foreclosure, cars being repossessed, the inability to pay for nursing home care or home care, all because available funds were out of reach, you’d be pushy too.

Picture a wife testifying in court. The judge is asking her all sorts of personal questions. As she answers, tears are streaming down her face. Her husband is in the hospital, very ill and unable to communicate. She has two young children at home. Most of their money is in accounts that are only in her husband’s name and she needs access to their funds to pay their bills. Her husband never signed a Power of Attorney….and he was a lawyer!

And here’s another case. Sally is single, childless, 80 years-old, retired 15 years, living in her own co-op in Brooklyn. Her only relatives were two nephews who lived out of state, children of her deceased brother, Mike. They visited her several times a year and called her once every couple of months.  Sally has few friends and showed signs of dementia.  One day she rang her neighbor’s bell dazed and confused, possibly after suffering a stroke. The neighbor calls EMS and Sally ends of up in the hospital for four weeks. Since the hospital can’t locate any relatives or paperwork and she can’t live at home on her own, the hospital sends her to a nursing home.

Her nephews try contacting her but she doesn’t answer her phone and they have no way of finding her. Finally, after several months, they track her down at the nursing home. They immediately engage a lawyer to visit Sally at the nursing home to make a POA so they can help Aunt Sally. When the lawyer goes to see her she discovers that Sally is no longer able to understand the nature of her actions and so can’t sign any documents. The lawyer also reports back to the nephews that an institutional Guardian was just appointed by the court at the request of the nursing home which is seeking payment of its monthly charges. This Guardian, who doesn’t know Sally, is now in charge of all her affairs and will be making health care decisions for her, without the input of her family members. The nephews are devastated upon hearing this news. They can spend a lot of money going to Court to try to overturn the Guardianship, but more often than not, given that Sally never signed any papers and now isn’t physically up to it, the Courts won’t grant such a request. Because Sally did no legal planning, her co-op will be sold and its contents emptied without the opportunity to pass on her precious valuables to her loved ones. A Power of Attorney appointing a nephew or good friend could have given them the authority to make decisions for Sally.

Giving Up Control 

There are many people who absolutely refuse to consider signing a POA because they are afraid of giving up control of their financial matters. They fear that doing so will allow the person they name as their agent, behind their back, to perhaps rob them or maybe just have the temerity to look at his or her financial records. The person they would make their agent is more often than not a close relative, a spouse, son or daughter, but that doesn’t seem to allay their basic fear. The idea of giving up control is just too scary. If this relative being named agent had a criminal record, this fear would certainly be justified. In fact, if all your relatives, friends and acquaintances are ex-cons than yes, maybe you shouldn’t have a POA because who could you trust as your agent? But even parents who have absolute confidence in their offspring will often come down with a serious case of “Fear of POA.”

When it comes to POAs there are too opposing forces: the possible trouble caused by not having a POA vs. the fear that a POA will be abused. So how do you navigate these tricky waters? Taking an assessment of the risks that might apply to your life is part of the answer. But before you begin that analysis, it is helpful to know a bit more about POAs.

Protections You Can Add to a POA

A POA may include restrictive language that clearly expresses your wishes and sets limits. For example, it could state that your agent must keep precise records and that these records must either be shown to you, or to someone else you designate, such as a monitor. When asking for any such records kept by your POA agent, make sure to do it in writing, and to keep a copy of the letter. If you have suspicions that your agent has been acting in an inappropriate manner, then send this letter so that you get a signed receipt, via certified mail. If you end up having to go to court to try and get back money that you feel has been misspent by your agent, having a paper trail will give more credence to your case than saying that you asked for an accounting verbally. A written request will also give you proof of exactly when you asked for this accounting so that any transactions that took place after the fact might look all the more suspicious.

In New York State you may also name more than one person to be your power of attorney representative. If you have two children, they can both be named, and you can decide whether they both need to act together or whether only one of them can sign documents like withdrawal slips and checks. If you require two persons to act together, this would serve as a check on each of the agents. (Of course having two agents could also result in conflicts between them as well as inconvenience since they must always act in unison.)  Another possibility is to have the two agents act in sequence, so that one is really the primary agent but the other could still fill in.

Another option is to appoint different agents for different purposes. For example, if you are unavailable to sign documents for the sale of your house on a certain date you could appoint a limited agent for only this purpose to expire by a certain date. Then you could appoint a general long-term agent for other purposes. All these options should be discussed with your attorney.

If you’re extra cautious, you could have the POA drafted and signed but kept in your possession, or maybe kept with your lawyer. Then, if the time arose when the agent was needed, he or she could be called upon. By holding back the delivery of the POA to the agent at least you’d know that the powers you’d granted couldn’t be used until the POA document was in your agent’s hands. You would want to make sure you don’t put it somewhere so safe, like in a bank vault, that your agent couldn’t use it.

You could also choose a professional you already have a relationship with in connection with your financial matters, such as an accountant, financial adviser or lawyer to be your POA. But these individuals will likely charge you for their services, and if the job becomes time-consuming, the cost might become more than you can afford. While a family member or friend might receive some compensation, it won’t likely amount  to what a professional would likely charge.

Please note, if your POA is old, or your life circumstances have changed through divorce, death or disability, it might be time to update your POA, not just because you want to change the agent or the terms, but because New York State has updated its POA  forms in the last decade. While it might not mean that your old POA is invalid, it might add a layer of complication to have an outdated version of the document at the time it was needed.

The Power

What can your agent do with a POA? That’s up to you. You can give very broad powers, allowing your agent to do virtually anything you could do, or you could place limits on the agent’s authority. Let’s say you owned a second home in another state, you could give someone a POA just for the sale of that property. Other common powers include some or all banking transactions, paying bills for your care, handling legal matters, gaining entry to safe deposit boxes, dealing with retirement and insurance benefits, preparing and filing tax returns, exercising stock holder rights, taking care of Medicare planning, making gifts, changing the beneficiaries on your retirement accounts, re-titling bank accounts as joint accounts and borrowing. And a POA doesn’t have to be limited to personal finances. It can cover both finances and legal rights.  If you own your own business, you might need an agent to handle those affairs, for example, sign your payroll checks if you couldn’t do it.

Most POAs become valid on the day they are signed, and all POA signatures must be witnessed by a notary public. But you could have a POA that wouldn’t become valid until either a particular day or a point in time when you were incapable of acting for yourself, as certified by a doctor. This is called a “springing” POA.

The Durable POA

A general, “durable” Power of Attorney provides the most protection. The durable POA  “survives throughout your incapacity” meaning that you’ve appointed someone who will be able to take care of your affairs until you die, even if you become mentally ill or disabled.  Without it, family members might have to make a court application to be appointed your Guardian. This is a time-consuming, emotionally draining and costly court process. If you don’t have close family members, it is important that you appoint a friend, colleague or professional you trust.

One noteworthy power a POA does not have is the power to make your will. That can only be done by you, and you have to be of sound mind to do so. Some people who have dementia wait too long and can no longer make a will. However, bear in mind that dementia can take a long time to render a person unable to sign legal documents. Just because a person can’t remember certain things doesn’t mean they are not legally capable of executing a POA or a will. An attorney asked to create such documents will always make sure that a person is of sufficiently sound mind to sign legal documents and the attorney can later certify as to the will maker’s mental capacity if anyone brings a challenges.

The most important decision in drafting a POA is to choose the right agent. If you have at least one person in your life that you can trust implicitly, then you won’t have any potential problems with a POA unless that person becomes unable to act. It is always best to choose a primary agent and one or two alternate agents. If everyone who comes to mind has more minuses than pluses, then you need to keep seeking out a responsible person who is willing to act for you. The vast majority of people are well served in having an agent to protect them in case of an emergency.

 

Joanne Seminara, Esq.
Partner
GRIMALDI & YEUNG LLP
9201 Fourth Avenue, 6th Floor
Brooklyn, NY 11209
Tel:   718-238-6960
Fax:  718-238-3091
jseminara@gylawny.com

CUNY TV features Judith Grimaldi, selected as one of NY’s Wise Women by the National Association of Italian American Women

CUNY TV features Judith Grimaldi, selected as one of NY’s Wise Women by the National Association of Italian American Women

Watch Judith Grimaldi’s acceptance speech at The National Organization of Italian-American Women’s (NOIAW’s) annual Epiphany Celebration.

Click to play video and see what this Wise Woman has to say.

 

Judith Grimaldi, Esq.
Partner
GRIMALDI & YEUNG LLP
9201 Fourth Avenue, 6th Floor
Brooklyn, NY 11209
Tel:   718-238-6960
Fax:  718-238-3091
jgrimaldi@gylawny.com