A Durable Power of Attorney (DPOA) allows an individual to give a designated person — known as an “attorney in fact” — authority to sign documents and act on their behalf. The legal document is particularly beneficial for individuals who are worried about mental or physical incapacity in the future. For example, an elderly person may be aware of their gradual memory loss, which may soon render them incapable of making important decisions.
Some people might view the idea of preparing and signing a DPA as a sign of losing their independence. However, it allows individuals to specify how they want things handled while they are still alive but unable to manage their affairs. Without a DPA in place, family and friends will not be able to make any important financial decisions in the event of unforeseen incapacity.
The attorney in fact has a significant amount of control over an incapacitated individual’s financial and legal affairs. They have the power to make decisions about assets, enter into contracts, manage businesses, and handle tax and trust matters. Therefore, it is critical to choose a trusted individual such as a family member or friend and to fully discuss the scope of responsibility.
The DPA can either be effective immediately once signed, or when and if a person becomes incapacitated. The document is legally valid for a person’s entire lifetime unless he or she revises or revokes it at any time while being of sound mind.
An experienced estate planning attorney can provide guidance on selecting the best approach to protecting one’s future interests. For example, in some cases a court-appointed conservatorship may be necessary when the individual lacks the capacity to sign a DPA or does not have anyone to name as an attorney in fact.
“We all want to avoid court involvement,” warns nationally known attorney Mark Gilfix. “Signing a well-drafted Durable Power of Attorney is therefore an essential part of proactive planning.”
A new study has found that autism can be diagnosed in a faster and inexpensive way by allowing children to play games on smartphones and tablets. Researchers from the University of Strathclyde in Scotland used fun iPad games to track players’ hand movements. The information gathered by examining gameplay patterns helped them identify children who may have autism.
The research shows how technology offers the possibility of a less intrusive method to diagnose the childhood neurodevelopmental disorder. Lead study author Dr. Jonathan Delafield-Butt, a senior lecturer in child development at the university, called the findings “potentially a major breakthrough.”
He stressed the importance of detecting autism early on so that children and parents can access various support services. Autism affects one in 160 children around the world. The sooner children are diagnosed, the better parents can plan for their future, such as by creating a special needs trust.
The study involved analyzing movement data from 37 autistic children aged between three and six. They played games on tablets and smartphones that had embedded motion sensors and touch-sensitive screens.
“The key difference is in the way children with autism move their hands as they touch, swipe, and gesture with the iPad during the game,” said Delafield-Butt. “This unexpected finding adds new impetus to a growing scientific understanding that movement is fundamentally disrupted in autism, and may underpin the disorder.”
Further research is needed to confirm the findings in order to integrate technology into the diagnostic process. However, using games to diagnose autism would minimize the need for children to undergo stressful, expensive and time-consuming tests by clinicians. It also allows for earlier, and possibly more effective, advance planning to maximize eligibility for important government benefits.
The elderly can be vulnerable to various forms of elder abuse, one of which is financial exploitation. Financial exploitation involves unauthorized use of an elderly person’s finances or property, either by a family member, caregiver or an unknown scammer.
The media recently reported the case of an elderly California couple who faced eviction from their home of 56 years after falling victim to a scam devised by their grandson. Chad Moore defrauded his grandparents Hank and Helen Kawecki out of their deed, defaulted on nearly $500,000 in loans and lost their Thousand Oaks house to foreclosure.
Moore convinced the couple he would provide them with lifelong financial support if they transferred the house over to him. After taking out a loan, he initially kept his promise to give his grandparents monthly payments. However, he stopped the payments after a few months and allegedly spent all the money in Las Vegas.
Instead, Moore put the house up for sale. He also lured his grandparents out of their home while realtors hosted open house events for potential clients. The couple filed a lawsuit against Moore with their neighbor’s help. Police are investigating the case.
The National Committee for the Prevention of Elder Abuse has identified a number of behaviors commonly associated with financial fraud. These include: taking money or property, forging the elderly person’s signature, and failing to follow through on promises for lifelong care in exchange for money or property. An older person may also be coerced or deceived into signing a will, power of attorney or deed.
Creating an estate plan can help protect the elderly from financial exploitation. A living trust, Durable Power of Attorney and Advance Directive are all excellent safeguards. Each document names a trusted individual who can manage assets and health care according to specified wishes in the event of incapacity.
Good Evening Judy,
You are correct, the primary beneficiary should be yourself. The contingent beneficiaries should be 30% to Rachel Mary Macias and 70% to the Daniel Abram Macias Irrevocable Special Needs Trust (or whichever percentages you deem appropriate).
Do let us know if you have any additional questions. Thank you.
Attorney at Law
Pixar’s recent film “Finding Dory” will have resonance for parents who have children with special needs. The animated film is the sequel to the 2003 blockbuster “Finding Nemo.” It tells the tale of a blue tang fish named Dory who suffers from short-term memory loss. She cannot remember names, faces or even her way back home.
“Finding Dory” is about how the title character overcomes challenges. The filmmakers use flashbacks to show that Dory’s memory lapses are something she was born with and learns to manage. In the first film, her short-term memory loss was presented as a quirk. However, in the sequel audiences realize that Dory actually has special needs.
Her protective parents begin trying to figure out how their daughter can function in the larger world. For example, they create rhymes to help her remember important safety rules of swimming in the ocean and build seashell trails to guide her home. They also worry whether Dory will be fine on her own.
The systems that Dory’s parents put in place mirror the support that parents try to provide their special needs children. They may establish special needs trusts, seek specialized education or arrange for caregiver services to make their child’s life as comfortable as possible. Just as the support provided by Dory’s parents is specific to her, special needs children often require customized care.
Mitch Prinstein, clinical psychology director at the University of North Carolina-Chapel Hill, told USA Today that he noticed parallels between the film’s depiction and the ways in which caregivers interact with kids who have developmental disabilities. He said the high-profile exposure Pixar has given to disabilities in the film opens up a discussion about the way mental disorders are viewed.
Gilfix and La Poll wishes to thank the hundreds of attendees, and wonderful nonprofit co-sponsors, for making our 13th annual Special Needs Seminar our best yet!
We were overwhelmed with the response, and with all of the kind comments we received from seminar attendees. We were also thrilled to see many attendees connecting with co-sponsor support organizations, including:
- Center for Independence of San Mateo
- Children's Health Council
- Community Resources for Independent Living (CRIL)
- Jewish Family and Children's Services
- Life Services Alternatives, Inc.
- National Alliance on Mental Illness (NAMI)
- Pacific Autism Center for Education (PACE)
- Parents Helping Parents and many more!
The seminars, lead by attorneys Michael Gilfix and Mark R. Gilfix, covered the importance and structure of special needs trusts, recent special needs legislative updates, including the Special Needs Trust Fairness and ABLE Acts, and an overview of how estate planning can incorporate these very important tools. Michael and Mark were thrilled with the quality of questions they received from audience members.
Gilfix and La Poll is proud to be one of the nation’s premiere special needs planning firms. We were overjoyed to connect with so many in the bay area community at our recent seminar.
We know many who signed up were unable to attend, and space and parking restraints meant we were unable to accommodate all who wanted to attend.
Because of this, we will be offering a special follow-up Special Needs Trust Seminar on June 22nd at the Bay Café (1875 Embarcadero Road) in Palo Alto. Space will be limited, and we anticipate a full house. If you hope to attend, we encourage you to register as soon as possible here.
Again, we thank you for making the Special Needs Trust seminar such a wonderful and successful event!
Life is ever-changing, and so are an individual’s estate planning needs. A key feature of estate plans is that they should be flexible enough to adapt to circumstances at various stages throughout one’s lifetime. There are a number of major life events that can help shape the scope of an estate plan. Any major life changes will likely require wills and related planning documents to be reevaluated and updated.
A change in marital status — whether it involves getting married, divorcing or remarrying — is likely to have significant impact on asset management, advance directives, powers of attorney and other estate planning documents. A new spouse does not automatically become the chief heir. Additionally, some couples may choose to draft a prenuptial agreement to manage inheritance rights to each other’s estates. For example, a spouse may choose to protect their biological children’s inheritance in the event their partner remarries.
The arrival of children is a significant life-changing event. Although it may be unpleasant to think about death or incapacity, parents must address the question of how their children will be cared for in case something happens to either one or both of them. Drafting a will provides the opportunity to name a guardian to care for the child. Parents may also consider establishing a trust in order to manage assets.
Moving to a different state also entails estate planning revisions. Each state has its own estate planning and tax laws. Therefore, related documents should be reviewed accordingly. For example, community property states and common law states have different rules on spousal ownership. An existing estate plan should match current requirements and anticipate future needs.
While these are just a few major life events to consider, there are countless others that may prompt an individual to periodically review their estate plan to ensure it meets their objectives.
Let’s face it, everyone is worried about the future of government benefits and how individuals with special needs will be cared for. To address this attorneys Michael Gilfix and Mark Gilfix of Gilfix and La Poll Associates are offering a free special needs planning seminar on Wednesday, May 10, 2017 in Palo Alto, California. The 13th Annual Special Needs Trust Seminar will provide valuable information for those who have children or other family members with special needs. There will be two seminar sessions, each lasting two hours.
Both seminars will highlight new legislative developments and opportunities: The ABLE Act and the Special Needs Trust Fairness Act. Special needs trusts are crucial planning tools. Michael Gilfix and Mark Gilfix will explain how they work and why they are necessary to create for a child with a disability. They will also discuss housing for disabled individuals, the ABLE Act, the Special Needs Trust Fairness Act and the possible impact of Trump administration initiatives. Seminar attendees will learn how special needs trusts complement public benefits like Supplemental Security Income and Medi-Cal rather than disturbing eligibility for them.
Michael Gilfix and Mark Gilfix have decades of experience in the field of special needs planning. Michael Gilfix is a member of the Academy of the Special Needs Planners and author of the book “Special Needs Trust Creation and Management Guide.”
The seminar is being held with the support of nonprofit organizations including Autism Society San Francisco Bay Area, Community Resources for Independent Living, Jewish Family and Children Services, Pacific Autism Center for Education, Parents Helping Parents and others.
Space is limited, so please reserve a spot as soon as possible. To register, call 650-493-8070 or visit www.Gilfix.com.
13th Annual Special Needs Trust Seminar
Wednesday, May 10, 2017
2pm to 4pm & 6pm to 8pm
4249 El Camino Real
Palo Alto, California
Caring for individuals with autism and other special needs tends to involve a lifetime of expenses, whether it is paying for caregivers, accommodation or daily necessities. A study from the University of California, Davis (UCD), shows California spends significantly more on adults with autism compared to children who have the disorder. Researchers found state expenditures soar as people with autism age.
Each individual under the age of 18 received an average of $10,500 in state funding annually. Meanwhile, costs for adults were two and a half times higher at around $26,500. The widest gap was between the youngest and oldest age groups with an average difference of nearly $38,000.
The UC Davis Health System study examined per-person spending on autism services for over 42,000 California residents with autism. Researchers analyzed the California Department of Developmental Services’ spending from 2012 to 2013. The department funds services for people with autism through 21 regional centers in California.
The data took into account costs for transportation, daycare, employment support and accommodation at community care facilities. It did not include medical expenses or school expenditure. The study found daycare and residential care were the sources of the highest costs.
“As children with autism grow up and become adults and no longer receive public school-based assistance, their services transition to expensive independent living support and more of the cost burden shifts to the state,” said study author Paul Leigh, a public health sciences professor at UCD. “We hope our data can help justify earlier, expanded and equitable spending on younger children with autism. There is a great return on investment in high-quality early intervention services.”
Military families with special needs children face a number of difficulties when planning for their future financial security. However, a new law now allows military retirees more flexibility and peace of mind with the way their Survivor Benefit Plan (SBP) can be paid upon their passing.
The SBP allows retired military members to designate up to 55 percent of their retirement pay to eligible children, spouses or other beneficiaries. Under the Disabled Military Child Protection Act, military parents can now provide survivor benefits to a disabled child via a special needs trust. Although the Act was passed in December 2014, the Department of Defense did not issue a guidance on how to implement SBP payments to a legally established special needs trust until a year later.
Previously, military families faced the challenge of being unable to assign SBP payments to a trust. The funds had to be designated to an actual person, whether it was the beneficiary, a guardian or representative payee.
As a result, military retirees with special needs children were reluctant to select their child as the beneficiary. They feared the SBP payments could potentially affect the child’s eligibility for government benefit programs such as Medicaid or Supplemental Security Income. With the new policy, both SBP support and eligibility for government benefits can be protected with a special needs trust.
Military families need to think about the long-term impact when designating survivor benefits for a disabled child. When considering the use of a special needs trust for SBP payouts, families should consult a knowledgeable special needs planning attorney to ensure the correct type of trust is used in their plan and that it is in compliance with federal and state laws.