Your Lawyer for Life

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Good morning, Sacramento. My name is Dustin MacFarlane, and you know it's not morning now. I've been doing this radio show for a long time. I just switched time to Noon. I've been on at 7am for a long time, so I'm a little confused here.

                        My name is Dustin MacFarlane. I'm an elder law and an estate planning attorney. I'm an accredited attorney with the VA. That means that I can help you with VA claims. The claims I help with primarily are aid and attendance. We can talk about that. I just wanted to say hello. I'm happy to be here on Talk 650 KSTE. It is going to be a great day.

                        Let me just tell you a little bit about who I am and what I do and why you should be listening. First, thank you very much for tuning in. I am an elder law attorney, so what I do on this show, what I try to do is talk about senior issues. I think I'm one of the only elder law attorneys on the radio talking about senior issues, making sure that you can take care of your loved ones, and that's really what it's all about. I get asked all the time, "What do you do?" I say, "I'm an elder law attorney," and I get this puzzled look on people's face because they really don't know exactly what that means or what I do. It just runs the gamut, but I think to boil it down into one sentence, I help families take care of their loved ones when they start to need help. That's the long and the short of it. Maybe it gets a little more complex than that, of course, but really just trying to help families take care of their loved ones.

                        My phone number is 855-588-5887. I know that's a lot of 5s and 8s. I'll do it again: 855-588-5887. You can reach me to schedule a time to come in and talk about your family and what is going on with the kids, with taking care of Mom. Do we have issues? I get calls all the time and it's just everywhere. Everywhere I go when I say, I explain what I do, then I just get this rash of people's personal experiences as they are dealing with the exact same thing. They're trying to take care of their loved one, and it turns out they're running into a problem.

                        When I say a problem, I mean they're trying to pay the bills and they can't get money out of the bank. They're trying to find a caregiver for their spouse or their parent or grandparent and some family member is giving them a lot of trouble. We see a lot of family members who want to take Grandma and Grandpa in to live with them because they want their Social Security or they want the retirement checks coming to them. We see a lot of folks who are trying to place somebody in a care facility and a family member is saying, "Oh, no, that's not good. They can live alone at home." As we go through this, it can be hard to take care of somebody, somebody who has some memory issues, some dementia, some other physical ailments as people start to slow down.

                        Again, I want to make sure that you can take care of your loved ones. If you are a caregiver, a parent, a spouse, or grandparent, give me a call: 855-588-5887. The primary focus of what I do is trying to help families avoid conflict and make this process as simple as possible, and I do that with estate planning documents. When people ask what is estate planning, or more commonly, "Oh, I don't have an estate," they think it's for very wealthy people. I want you to know that almost everybody has an estate. Estate just means managing your stuff, your property, your home, any real estate, any bank accounts. It doesn’t have to be multiple millions of dollars to think that you have an estate.

                        Most folks, they think it's pretty simple, and, in fact, that's a very common first line when folks come in, "My situation is simple." That's not always the case. They might think it's simple; they want it to be simple. I think it might be code for, "Don't charge me a whole lot of money." I'm not quite sure. Then they'll proceed to tell me, "I've got children. My wife has children. None of the family talks to each other. We have some separate property or so-and-so is suffering from dementia but I'm not on the bank account." As we start unpeeling the onion, we realize that it's not always as crystal clear as what folks want it to be.

                        What I want to do is start to implement a plan now while everyone has … the technical term … while everyone has their marbles. I want to make sure that while everyone can think clearly or somewhat clearly, that you put in place or put in motion some sort of plan of care so that children, so that spouses, so that grandchildren, whomever your family is, whomever is in charge, can step in and take care of you. I just can't tell you how important that is. I just can't tell you the crisis that comes when people don't have that in place. Taking care of somebody when they're ill is really not the most easy thing in the world to do. You would think it would be, but with banks and with hospitals and with the way we are, the way our society has now become with the privacy laws, it is really difficult.

                        Let me give you the toll-free number: 855-588-5887. My office is on Fair Oaks Boulevard, just near Sunrise, just west of Sunrise. My name is Dustin MacFarlane. You can always get ahold of me at 855-588-5887. Call and schedule a time to come in. Let's talk about your family. Let's talk about how we can make sure that you can care for your loved ones. That's really going to be the focus of our conversation. The goal is to make sure that your loved one, be it a parent or grandparent or whomever, is warm and safe. We never want that situation where we can't take care of somebody. Again, my number, 855-588-5887. That's 855-588-5887. You can reach me here at the office.

                        We're going to take a quick commercial break. I'll be right back. My name is Dustin MacFarlane here on Talk 650 KSTE. Stick around.

                        We're back. I'm Dustin MacFarlane here on Talk 650 KSTE. My phone number: 855-588-5887. That's 855-588-5887. I'd like to talk to you, but what I'd really like, and I'm actually working on a simple website, a one-page website that you can log in or you can go to. I want to hear not only your stories but your questions. If you have elder law or estate planning-related questions, if you're trying to take care of somebody, if you're wondering how your will works, if you're wondering how your power of attorney works, or do you even have one, I want to answer your questions here on the air. I'll go through them, and while I don't take live calls, I definitely want to address your issues. Again, if you have a question that you'd like me to address, give me a call and you'll be able to leave that question or comment on my voicemail and I will get to it in the next week. Again, my number is 855-588-5887.

                        A couple of weeks ago, there was an article in the Wall Street Journal. The title of the article was Caring for Alzheimer's: How Three Couples Cope. It's one of those articles that almost brings a tear to your eye. The gist of the article is how families are taking care of their loved ones with Alzheimer's. There's some amazing stories. The thing of it is that the article really, first of all, emphasizes a couple of things, but there are a lot of people with Alzheimer's. The first paragraph of the article talks about 5.3 million Americans suffer from Alzheimer's disease. We know it's a lot. We also know it's growing. What's more scary than that, to me, is the age of people who have dementia. It is pushing down.

                        A lot of times when I think of seniors … When you're around seniors a lot, you realize 70 is young, 75 is young, 80 even sometimes is young. My grandmother was born, I don't know, I won't … I guess I'll reveal your age, Grandma. You should be proud of it. She was born in '28. What does that make her, 86 I think this year. She's still young and healthy and lives on her own and has a great life and doesn't suffer from any of this, but there are a lot of people who are now suffering from dementia or Alzheimer's. In fact, in this Wall Street Journal article, it talks about several families who were diagnosed in their 60s, in their late 60s. My father is 67 or 68, still works full time. I can't imagine him having to stop because of this memory impairment, because of this disease. It's just an amazing thing.

                        It is something that we're all going to deal with, and it's coming on faster than we expect. I'm not sure, nobody really knows why. A couple of weeks ago, I spoke at the Alzheimer's Association Convention, the Caregiver Convention down in Sacramento. As you're talking to people there, you ask … The topic always comes up of where does this come from or why wasn't this a problem 50 years ago? I don't know. Nobody really knows, but what we do know is that not only is it attacking our seniors, those 80, 85, 90, which we would somewhat, I would say somewhat expect. Okay, somebody is getting up there in age. If they have some memory issues, that's okay, but when we see 70-, 60-, 65-, 60-year-olds being diagnosed with Alzheimer's …

                        In fact, in this article it mentions a gentleman who was diagnosed. He's 68 years old. He's living in a care facility paying $7100 a month, and his wife is complaining that it's eating into their retirement. Yeah, $7100 a month on care. Are you prepared for that? Are you prepared to spend that kind of money. Let me just say most people are not. What are the legal options? What issues can we try to resolve? What assistance is out there? What powers and rights do you have? Let me tell you, if you are trying to manage somebody else's money, even if you're the spouse, it can be difficult, and let me prove it to you.

                        Tomorrow or today or whenever, why don't you call your spouse's bank or call your spouse's employer and try to get the balance on a 401(k) account or try to get the balance on a checking account or try to change the beneficiaries. This stuff is not easy to do, and we want to make sure that whatever you're trying to do to care for your loved one, you are able to do it. I won't say war, but the biggest struggle that clients have and that we have to work through together is working with money. A lot of people come in to me and they go to the estate planning lawyer because they say, "It's about that time and in case something happens, in case something happens, I want to have my affairs in order." I think that's really good. You have a will so that when you die, everybody knows what's supposed to happen, who gets what and how much. That's a great thing. Everyone needs to have it.

                        Dealing with death is relatively straightforward. There still can be problems, and I'll talk about some of those, but dealing with death can be relatively straightforward. We have a death certificate. We know that you can't deal with it. Nobody's trying to necessarily steal your money from you because you're dead, you don't really own it. The problem, taking care of somebody who is sick, now that's tough. Getting access to somebody else's bank account before they're dead, that's really tough. Then throw on accessing their bank account and them not being able to give oral and written consent, them not being able to go to the banker and put you on the account as a trustee or power of attorney, whatever, that becomes almost like an act of Congress.

                        In fact, and I've shared this story in the past, but I had this saga go on earlier this year. A client was … Her husband passed away. He had some accounts that were joint accounts. The spouse, the surviving spouse, is a complete quadriplegic, could not use her arms or legs at all. She was in a wheelchair. She relied on everyone to do everything. In fact, because of her physical condition, she was almost unable to speak. You could hear her faintly and you could have a conversation. Mentally, she was completely there. If you told her a joke, she would laugh. She can watch TV and giggle or laugh at the jokes. You could tell her a story and she would acknowledge it and try to respond. Physically, she was almost completely paralyzed.

                        When her husband passed away, he had been the one managing all of the accounts and managing all of the bills and managing everything. He passed away unexpectedly, earlier than anyone thought. The kids come into town and they say, "Okay, we have to take care of our mother now because our father is gone." That's just what family does. That's what kids do. We're grateful that there are children out there who do this.

                        We go to the bank; here's what the bank tells us. They say, "Well, we can't talk to her." First of all, we take her in the wheelchair to the bank, and the banker won't let the daughter access the account. All we're trying to do is buy medicine, buy groceries, pay the bills. It's not like anyone is getting rich off of this deal. The bankers first say, "No, you can't access the account." We show them a copy of the trust and say, "She's the successor trustee. This daughter is the successor trustee. Give her access to the account." The banker just flat out says, "No, we're not going to do that." "What? What are you talking about?" "This is what the state law requires."

                        We brought the client over, incapacitated, fine, she's sitting in her wheelchair. I said, "There's the client. She owns the money. Why don't you go talk to her?" She goes over and talks to her and she says, "Okay, we'll let the daughter access the account." The daughter is able to get on the back account and start writing checks and paying bills. Two weeks later, the bank puts an administrative freeze on the account.

                        Just imagine yourselves in this situation, folks. You're trying to take care of a mother who is completely physically disabled, mentally fine, completely physically disabled. All you want to do is pay her bills and buy her medicine and buy her food. That's all you want to do, and you go down to your … Not a big bank, mind you, a local, little credit union, somebody that we all know and trust and think, "Oh, they're our wonderful credit union. They're our friends." Let me tell you, that's not the case.

                        Imagine the bank just shutting down access to your account and checks start coming back, and you're thinking, "What just happened?" We contact your bank, and they say, "Oh, we placed an administrative freeze on the account. We don't know that that woman in the wheelchair is the owner of the account." I said, "Yes, you do. You talked to her. Your banker talked to her." Here's what she said. It was the director of compliance, their fraud prevention geniuses. She says, "All we need her to do is sign a new signature card." I said, "You know, with all due respect, she signed a signature card 25 years ago when she opened the account. Since then, she's become disabled. How do you expect her to sign a signature card?"

                        This brilliant banker said to me, "Sir, all we need is a new signature card, and if the signature cards match, then we'll give her access to her money. If not, then bring us a court order." I thought, "You have got to be kidding me. I have a banker holding this woman hostage." The kids have no access to money. They're using their own personal funds, they're using credit cards, their own personal credit cards, to try to take care of their mother while this bank sits on its laurels and says, "We're not giving you your money."

                        We roll Mom back in and we say … She goes in and struggles, but says, "This is my account. Here's my identification. Give me my money." Really, she wants to close the account and move it to a friendlier institution. The bank, actually this credit union says, "No. We're not giving you your money. We are not giving you your money until we have doctors' letters state that you have capacity to manage your own affairs." I said, "You've got to be kidding me." Now we have banks making up their own rules, completely in violation of the law. It was just asinine.

                        I'm going to continue this story on the other side of the break. My number is 855-588-5887. I want you to know that the story ended well, but 855-588-5887. My name is Dustin MacFarlane here on Talk 650 KSTE. Be right back.

                        I'm Dustin MacFarlane here on Talk 650 KSTE. My number: 855-588-5887. Give me a call if you'd like to talk about how to take care of your family, if you're running into problems with a bank, with healthcare facilities, with adult protective services. Here's really where you need to worry. Not worry, here's really where you need to act. You need to have this stuff in place before you actually need to use it. It's like life insurance or car insurance or fire insurance.

                        The time to get your affairs in order is not after the stroke. It's not after dementia sets in. It's today while you can still understand what's going on, make decisions, talk to people. You need to get your affairs in order now. I'm not talking about making sure the will is done. That's easy. I'll do the will for you. That's cake. What we need to make sure of is that your family members, the care-giving team that you are going to be surrounded with if and when you become incapacitated, it's already in place. You've got to do it now.

                        I've been telling this story about this woman whose husband died and her family is trying to take care of her and the bank, the credit union is denying access to the money. The credit union banker comes out and she goes, "You can't access the money. Sign the signature card." You can't. She can't sign the signature card. She's physically disabled. Her arms don't work. Her legs don't work. We can't even put a pen in her mouth. It doesn't work. The bankers then say, "Well, bring us letters saying doctors approve." I'm not taking her …

                        One of the things you can't do is just let banks dictate what happens. First, they wanted a court order, which really means they wanted us to conserve that woman, who mentally was completely fine, mentally was totally there. There's no reason to go spend good, hard-earned money that should otherwise … be on legal fees and court costs to conserve somebody when they have a hundred percent mental capacity, when they are completely there. As much as I'd love to collect another check from a client because it's good for business, it's a complete waste of their money. I can't have banks just dictating what legal needs or legal resources that people use.

                        That was insane, and I just told the family flat out, "We're not doing that. The bank is way overstepping its bounds." Then the bank says, "We'll have our bankers, our vice president of compliance and fraud prevention," and some other yahoo from the bank, who the heck knows, "assess this woman." I thought, "You have got to be kidding me." Now, I have a bank acting like a … I asked the person. In fact, I'm talking to their chief legal counsel at the bank, and I said, "Are you telling me that these people are going to go out and assess this woman's mental capacity?" He goes, "Yeah, that's what they're going to do. They need to bring Mom back in and our people will assess whether or not she can have access to her accounts."

                        Now we have bankers pretending to be doctors. Now we have bankers pretending to have the skill and knowledge to assess somebody's mental capacity. I don't think that's a road the banks really want to go down. While I was incredulous, I said, "Fine. Let's get that done because she needs access to her money." Then we started talking about it and I gently reminded the attorney that this woman was also covered by the American Disabilities Act and they were completely discriminating against this woman based on her disability. There's no other reason that they're keeping her from the money. Then I also showed him all of the state planning documents, the trust and the power of attorney, which he acknowledged. He said, "Yep, they're all valid and accurate. We just don't want to use them." I said, "What are you talking? That's not your choice. That's not your option."

                        As we talked, and over and over and through letters and e-mails and over the course of about a week, ultimately the credit union saw it our way through a little bit of … What's the word? They didn't want to. It was a little bit of nudging, I guess, gentle nudging, but they saw it our way and they ultimately gave the daughters access to the account so that they could pay their mom's bills. That is the kind of thing that you just think, "Oh, that will never happen. All of this is set up." Guess what? When that father passed away, the trust wasn't funded properly. Not only did they not fund the trust, they didn't take steps to inform the daughters of where all the money was and where all the accounts were. They didn't take steps to inform the bank of the trust and its terms.

                        There's so much more that needs to be done than just signing this trust document. There's so much more that needs to be done to implement your family's care plan. I can read the probate code, and I can go through the laws and I can say, "This is what has to be done and this is what's legal." We still have to deal with the real world. We still have to deal with banks and credit unions and hospitals and insurance companies and government agencies. All of those things don't go away just because we sign a trust.

                        Signing the trust, I won't say it's the easy part, but it is the first step. Don't think that you're done. That's a misconception that a lot of folks have when they walk out. They'll say all the time something to the effect of, "That's one more thing checked off the list." I stop them and pull them back, "No, you're not done. You've just begun. What I want now is …" I go through and I talk to them for several more minutes or whatever it takes because now they not only need … Now that everything is in effect, is active, now they need to have that family meeting. Now they need to properly fund the trust. Now they need to put this plan in place, because caring for family is tough and if it's only half done, it just … I won't say it doesn't work. It just makes it more difficult. There's no way around it. It just makes it more difficult. You've got to have this stuff in order.

                        Somebody called me just the other day and they said, "I heard you talk. I heard a seminar that you gave, and I have a trust but I don't know if all of the things were in there pertaining to elder law." That's a real common problem. People have an estate plan, they have a trust and a will and a healthcare directive, and they paid good, hard-earned money for that stuff because the plan was dying. That's what we're planning for. When I die, although "if something happens" is the euphemism, when you pass away, you don't want to leave your family a mess. You want it to have somewhat organized, and I appreciate that.

                        As we started talking, I said, "Does your plan have this?" For instance, I asked her, "Who is your successor trustee?" She didn't know. Then I said, "Okay, so you don't know. That's something you should know. Then how do you change trustees? When are you going to be removed?"

                        Oh, look at that. We're up on a break. I've just been talking and talking. My name is Dustin MacFarlane. I'm here on Talk 650. My phone number: 855-588-5887. Stick around. We'll be back in just a couple of minutes.

                        We're back. I'm Dustin MacFarlane here on Talk 650 KSTE. I want to make sure that … First of all, if you don't have an estate plan, you need one. It's not "if." It's not, "Well, maybe I'll get around to it later." You need one. You just don't know when life is going to change.

                        We have some very close friends. This husband is actually a couple of years younger than me. I'm 42; he's a couple of years younger than me, I think. He's not quite 40. Young, healthy guy, physically demanding job, tough as nails, two young boys about my boys' … Going along in life just fine, nothing going on. All of a sudden, one day he wakes up and, boom, he has a new ailment, and this ailment or illness, while curable, it's not terminal, completely incapacitated him.

                        Physically, he couldn't walk. He couldn't use his arms. He couldn't open his hands. He couldn't speak. He had trouble breathing and swallowing. He's learning how to do all this stuff again. That was literally a Friday to a Saturday. There was no warning. It came on in a matter of about 8 hours. It started in his toes and worked up, and within 8 or 10 hours, he was completely incapacitated. Now is in a rehab facility, will spend 3 weeks there before he comes home for another probably 3 or 4 months of rehab.

                        It happens when we're not looking. It happens when everything is good. It happens to everyone. It happens to everyone. We just don't know when. I'm not talking about dying. I'm talking about becoming incapacitated and needing help, and that is so much more difficult to deal with. Dying is easy; everything is laid out for us. It is easy, but having somebody take care of us, having somebody help us …

                        I was talking about this woman who called me up and said, "I have this estate plan. I heard you talk. I don't know if it has a lot of this incapacity language in it." I started asking her some questions, and I started out with the first question, "What does your power of attorney say, your durable power of attorney?" She turned to me and she said, "I don't have one. I don't have a power of attorney." Now of all of the things that you need when you're incapacitated as far as legal documents, that might be top on the list. It might be top of the list because you've got to have somebody who can act in your behalf. Understand this, okay? This is a little bit of legal school.

                        Let me stop and say my name is Dustin MacFarlane, my phone number: 855-588-5887, Again, 855-588-5887.

                        When you have a power of attorney, that gives an individual the power to act on your behalf on all financial or business-related transactions, which includes accessing banks, signing contracts, dealing with the government, dealing with a lawsuit, dealing with business transactions. All of these things that would be financial or business or related are done under a power of attorney. When I mention banks, sometimes we have to use a bank power of attorney. If I mention a government, sometimes you have to use a government power of attorney. We have to have these powers of attorney in place. These need to be durable powers of attorney. Durable indicates that the powers of attorney are in effect even if we're incapacitated. You think it goes without saying, but really it needs to have the word "durable" in there, and you need to have it.

                        Then the power of attorney needs to be specific. The power of attorney needs to say the powers that you want or authorizing this individual to do. The person who creates the power of attorney is called a principal, and the person who is … People always just say, "Oh, I'm my dad's power of attorney." Really, the term is you're either an agent or an attorney in fact; those 2 terms are synonymous. Be that as it may, you've got to have a power of attorney. This conversation with this woman, first of all, she didn't even have one. Why? I'll tell you why. Because the standard practice years ago was for attorneys to do a trust and a will and a healthcare directive, the thought process being or the rationale being that you don't need a power of attorney because all of the financial issues he would have to deal with are dealt with by the trust. Let me tell you that's not true. That is not true.

                        Your trust, and more specifically, the trustee of your trust can deal with trust property. I don't know if you remember this, but when you did your trust, you signed a new deed and you transferred your interest of your house to your trust. Now, you are the trustee of your trust and the house is a trust asset. That's great, but the trustee only has authority over trust assets. If something isn't a trust asset, then they have no authority over it. To make it simpler, let's just imagine that instead of a trust, you have a business and you have a business checking account and you have a personal checking account. You have 2 separate checking accounts. You own them both 100%. All the money in the business account is yours; all the money in the personal account is yours.

                        Now at the business, you have a manager you've hired. You found somebody on Craig's List, you brought him in. You give that person the ability to pay your bills and write checks for you for the business. That person is a signer on your business account. Wonderful. The question I have is, does that person have access to your personal account? Can that person write checks on your personal account? Obviously, I'm sure everyone who's listening is saying, no, that person can't.

                        That is exactly how a trust works. The trustee of your trust has access to trust accounts. Then my question is, what assets does your trust own and what other transactions are out there that might a person need to do on your behalf that are not any way related to the trust? That's where we get into things like dealing with the IRS and the Franchise Tax Board, dealing with a lawsuit, applying for Social Security or disability benefits or Medi-Cal benefits, applying for VA benefits. All of these other things are out there. They're not related to the trust, but you still need somebody to do it. You still need somebody to sign your name.

                        When you're incapacitated … I'm not just talking physically. The 2 stories I've told today are about people who are physically incapacitated. Those are maybe even a little bit easier because at least that individual can go into the bank or go into that wherever, deal with the authorities and say, "Yes, even though physically I can't write my name, this is the individual I want you to deal with." What happens when you're mentally incapacitated? What's the process? I'll tell you. In our last couple of minutes, I'll tell you that if you don't have your ducks in a row, if you don't have this nailed down, air tight, it's called a conservatorship. A conservatorship, what's that you ask?

                        In our final couple of minutes, let's just quickly tell you what the option is. If you don't have your estate plan in place and we're trying to take care of you, we're going to conserve you. That means we're going to go to court. Your family is going to pay a boatload of cash because it's just an expensive process, and we're going to go to court. We're going to have a judge review your medical history and the judge is going to determine, based on the doctors' reports and other people's findings and the court's own investigator, that you're bonkers, that you can't manage your personal or financial affairs, essentially your healthcare and your money. You can't do it.

                        Then the court is going to appoint an individual to do it for you. The problem we come into is we don't know what the heck the court's going to do. I've had multiple cases where for various reasons, we walked in with a family member and the son was saying, "Dad doesn't have any estate planning documents. We need to pay his bills. He has severe dementia. We've got to conserve him." We go into court, and the judge says, "That individual, that son, can't be the conservator. We're going to find a third party." An individual not related to the family, an individual who's never met your father before is now going to be making all the healthcare and financial decisions for your father.

                        Let me tell you, you don't want the government stepping in and telling you where you're going to live, how you're going to spend your money, who's going to take care of you. I don't want that. I don't want the government telling me that. If you want the government telling you that, then fine, you're on a good path, but if you want to make sure that your family takes care of you and makes your important healthcare, financial decisions, then you need a plan in place. You need to nail it down and make sure that everyone is on board with it. You need to get this stuff in order, and I'm saying it again, before you need it.

                        Give me a call. My toll-free number: 855-588-5887. Again, my name is Dustin MacFarlane. My office is on Fair Oaks Boulevard, just a block west of Sunrise. Again, 855-588-5887. Thank you so much for listening today. I'll be back here at Noon next Saturday on Talk 650 KSTE. I appreciate you tuning in. My phone number: 855-588-5887. That's 855-588-5887. Dustin MacFarlane here on Talk 650, elder law attorney, generally nice guy. See you next week. Bye-bye. 

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