The Duties of a “Fiduciary”

You may be asked to be the agent under a power of attorney for a family member or friend. Your fiduciary may be planning for when they might become unable to take care of their affairs. For example, they might become disabled or incapacitated, and they would need a trusted person to step in and manage for them. This is also necessary if the person is writing a will, and his or her estate must go through the probate process.

If you are named as a guardian, curator, executor of a person’s will, trustee, or agent under a power of attorney, the law calls you a “fiduciary.” You must act in the best interests of the person who has named you – “selflessly,” in other words. You must act loyally and in good faith.

You are not allowed to use the person’s property for your own profit. You cannot give gifts to yourself or others if the person has not authorized you to do that. You cannot mingle your person’s property with your own. If you spend the person’s money, you must carefully document the amount you spend and for what purpose.

What is a Fiduciary Relationship?

The “fiduciary” relationship imposes the highest duty in law. If you violate that duty, you may become personally liable.

Or, if you are the one who is thinking about whom you would like to name as your power of attorney (or the like), you must be sure you trust that person absolutely.

A recent New Jersey probate case shows what can go wrong. Mother Christine named Patricia, one of her daughters, to be the executor of Christine’s will. On Christine’s death, her other daughter, Diane, received a check from Christine’s estate for $10,000.00 – yet Christine’s house had sold for nearly $230,000.00.

The judge ordered Patricia to produce an “accounting” of where all that money had gone. Accounting is an inventory of estate assets and a record of all income and expenses. Patricia would not do so. Examination of the estate’s inheritance tax return revealed that despite a gross estate value of $319,368.00, the estate bank account contained only $6,886.00.

Patricia had spent $40,000.00 on what she claimed were home repair expenses, but she could produce no building permits. She had also given herself $110,000.00 as “fees” for her executor duties, plus a “gift” to herself of $27,000.00. No wonder she pled the Fifth Amendment.

The judge entered a judgment against her of $200,422.00. The judgment was affirmed on appeal, but with the requirement that the trial judge calculates the damages more specifically.

The case is In re Cenaffra, and can be found here:

https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2020/a5731-17.html

Most people are not like Patricia. If you are named as guardian, curator, agent under a power of attorney, or executor, follow a few simple principles. Make sure you don’t personally benefit from what you do with the other person’s property. You might be able to be compensated fairly for your work, but refrain from doing anything that might look like a conflict of interest. If there are other beneficiaries waiting to receive their inheritances, be transparent. Keep the beneficiaries informed. Write down why you acted as you did, at the time you acted. Document everything. Keep receipts. (If you are the executor / executrix or administrator / administratrix for someone’s succession, then you also owe a fiduciary relationship to the creditors of the deceased.)

If you have questions or would like to discuss your particular situation, please don’t hesitate to reach out. We help people determine who should act in their best interests, and we can help those who are already named. Please contact our Ruston, LA office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help. We welcome the opportunity to speak to you.

Is Your Estate Plan Current?

You should check your estate plan documents every so often, to make sure they’re still good, especially with big life changes like births, marriages, divorces, and moving to another state. Children grow up, marriages dissolve, property gets sold, residences change. That’s why we recommend that you consult us for an estate-plan check-up every five years or so.

If you retire to another state, your will would probably be good, but powers of attorney vary from state to state. Documents from the “old” state might not work in the “new” one, and your documents would not be there for you when you need them.

Suppose you willed your property to your spouse and appointed that person to be your power of attorney. You got divorced, but you never got around to changing your plan. The law would usually step in to prevent your ex-spouse from inheriting, but you might be stuck with that person holding power of attorney over your property and health care.

Maybe you named your ex-spouse’s father as your executor and agent. Now he can’t stand you and blames you for the break-up.

Perhaps you willed your property to your two children equally – but now one child is addicted to opioids. Your will did not restrict how money should be spent. If your addicted child inherits a lot of money in one chunk, that money could vanish to drugs and your child’s survival might be at risk.

Or, you deeded your house to one child and made a will leaving money to your other child. Then you forgot about the deed and made another will, years later. That will split everything equally. The law would invalidate the second will as to the house because deeds supplant wills. Consequently, one child might end up receiving more value than the other. That unfairness might sour the children against each other forever.

If you got divorced, sold property, moved to another state, or did your documents more than five years ago, come see us for an estate plan check-up.

When it comes to estate planning, “once is not done.” Please contact our Ruston, LA office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help. We welcome the opportunity to speak to you.

Are Divorce Rates Up Because of COVID -19?

Are divorce rates up because of Covid? The answer depends on who you ask.

Some experts report an increase.

The National Law Journal reports that divorce inquiries were up  34% by April of 2020. Mostly couples married less than five years.  And marriages that were already rocky are pushed over the edge. Shelter-in-place, homeschooling, and arguments about parenting increased the stressors on already troubled relationships.  Add financial stress and boredom, and nerves get raw.   As a result, the Journal believes there will be an increase of 10% to 20% in the second half of 2020. https://www.natlawreview.com/article/divorce-rates-and-covid-19

On the other hand, some experts report a decline.

In contrast,  professor Brad Wilcox, believes divorce rates have actually fallen. He credits the decrease to two likely factors.  First, it was hard to file for divorce when the courts were closed.  Second, in some marriages, hardship makes the relationship stronger. Couples developed a new appreciation for each other.  Couples who live the “we before me” rather than the “me first” lifestyle Wilcox talks about in his book “We Before Me”  have a better chance of surviving. https://news.virginia.edu/content/qa-professor-sets-record-straight-2020-divorce-rate

What is reality?  Are divorce rates up because of Covid-19?

What is reality? Are divorce filings up because of Covid? Goff and Goff has seen an increase in inquiries over the last several months. It became easier to file once the shelter-in-place order was lifted. Until then, most court proceedings were on hold resulting in less filing. As a result divorce filings historically spread over many months, are now happening in a compressed timeframe.    Only time will tell if the stresses of COVID kills more marriages.  Right now, there doesn’t seem to be a real increase in North Louisiana.  At least not yet.

If you and your spouse are on each other’s last nerve, get professional help.  Marriage counseling can be very effective and it is always worth a try.   Also, check out Dr. Wilcox’s book “We Before Me” (coming soon).

If you have a question about divorce call us at 318-255-1760, email us at info@goffandgoffattorneys.com  or  visit our online appointment scheduler to book a consultation.  We’re here to help!

VA Benefits for Aging Louisiana Veterans

The US Census Bureau reports that more than 18.2 million veterans live in the United States, and 38 percent of them are 65 and older. Additionally, the Census Bureau reports that more than 9 million veterans receive services from the Department of Veteran’s Affairs (VA) annually. If you are a veteran or have a loved one who is, it is important to understand all the VA benefits and aid that is available. Beyond education programs, home loans, and job search and training resources, the VA also provides a host of other resources to assist you as you transition to your retirement years.

Wartime Veterans Supplemental Income (Veterans Pension)

Supplemental income is available for wartime veterans through the VA pension benefit. If you served at least 90 days of active duty before September 7, 1980, or 24 months after that date, or served the full period for which you were summoned or ordered to active duty with at least one day of wartime, you may qualify.  You must have also been discharged under conditions other than dishonorable. There are strict income and asset requirements attached to this benefit as well as the survivors’ pension and the housebound or aid and attendance allowance discussed below.

Survivors pension

If your late parent or spouse served during wartime, you might qualify for the survivor’s pension. This tax-free program provides relief for unmarried children or a widow or widower who has low income. The deceased military veteran must have served a minimum of 90 days active service with a minimum of one day served during a period of wartime before September 7, 1980, and been dishonorably discharged. After that September date, the deceased veteran must have served a minimum of 24 months or the full period summoned or ordered to serve active duty. Pensions are based on annual family income and under a designated amount set by Congress. More details regarding military pension eligibility are found on the VA website.

Housebound Allowance and Aid & Attendance VA Benefits

If you are eligible for or are already receiving a veterans’ pension, you may qualify for additional monetary benefits. If you are permanently disabled and must remain in your current home, the Housebound Allowance will increase your monthly pension. Aid & Attendance (A&A) will compensate a veteran who is either residing in a nursing home, bedridden, requires assistance for activities in their day to day life, or whose eyesight problems meet specific thresholds of degradation. More details for Housebound Allowance and A&A eligibility can be found on the VA website.

Veterans Life Insurance Options

There is a wide variety of life insurance offerings through the Veterans Administration. Servicemembers’ Group Life Insurance (SGLI, VA form SGLV8286) is a group term life insurance that is low cost and is automatic for most active-duty service members. It is also available for those veterans who serve at least 12 periods of inactive training per year with the Ready Reserve or the National Guard. Other automatic qualifiers include belonging to the Commissioned Corps of the National Oceanic and Atmospheric Administration or the Public Health Service, and for midshipmen and cadets of the US military academies and ROTC members. You can extend the coverage up to two years if you are fully disabled at separation. Veterans’ Group Life Insurance (VGLI, VA form SGLV 8286A) allows you to convert your SGLI to a civilian program of lifetime renewable term coverage after leaving military service.

Family Servicemembers’ Group Life Insurance

If you qualify for SGLI, your spouse and children are qualified for Family Servicemembers’ Group Life Insurance (FSGLI, VA form SGLV 8286A). This insurance covers your dependent children free of charge, although the coverage for your spouse cannot surpass your amount of coverage.

Servicemembers’ Group Life Insurance Traumatic Injury Protection

If you sustain a traumatic injury during your service that leads to amputation, blindness, or paraplegia, you qualify for benefit payments made through Servicemembers’ Group Life Insurance Traumatic Injury Protection (TSGLI, VA form SGLV8600).

Service-Disabled Veterans’ Life Insurance

The Service-Disabled Veterans’ Life Insurance (S-DVI, VA Form 29-4364) coverage is provided to veterans who have been given a VA rating for what is called a new service-connected disability within the past two years. Coverage is free for eligible veterans who are fully disabled, and you can purchase additional life insurance.

Veterans’ Mortgage Life Insurance

As a veteran, if you are disabled and approved for a VA Specially Adapted Housing (SAH) grant, you may receive mortgage life insurance coverage through the Veterans’ Mortgage Life Insurance (VMLI, VA Form 29-8636).

This link takes you to an overview of these VA insurance benefits. You can click on the insurance program by name and be automatically redirected to the appropriate VA web page for that benefit.

Disability Compensation

Tax-free Dependency and Indemnity Compensation (DIC, VA Form 21-534EZ) is available to veterans who sustain or aggravate an injury or disease during their active service. The disability may include physical and mental health issues and secondary or related items diagnosed after your discharge. Your child may be eligible for DIC if they are not included in the spouse’s DIC, and there is an income-based DIC for parents. A disability can also qualify you for a higher, tax-free Special Monthly Compensation if you are housebound and need special assistance or have trouble performing daily living activities. Additionally, housing and insurance benefits through the VA, like Veterans’ Mortgage Life Insurance, Service-Disabled Veterans’ Insurance, and Adapted Housing Grants may be available.

Geriatrics and Extended Care Services

The Geriatrics and Extended Care Services (GEC) provides help to veterans with life-limiting illnesses, multiple chronic conditions, or disabilities associated with aging, injury, or chronic disease. The GEC will assist a veteran living at home or in a nursing home, assisted living, or other residential community care facilities. GEC services include home health aide care, daily care, telehealthcare, palliative care, respite care, hospice care, and even veteran-directed care.

Military Burial

Veteran, burial benefits include a gravesite in a national veteran’s cemetery, a government marker or headstone, the opening and closing of that grave and its perpetual care, and a Presidential Memorial Certificate. The marker, headstone, burial flag, and certificate are provided at no cost to the veteran. Additionally, dependents and spouses buried in a national veteran’s cemetery may also qualify for some benefits such as burial with the veteran, inscription on their headstone, and perpetual care. For a complete description of your veteran benefits, check this VA website link.

Percentages of veterans receiving benefits:

  • 25-34 years 24.7 percent
  • 36-44 years 21.5 percent
  • 45-54 years 25.8 percent
  • 55-64 years 19.8 percent
  • 65-74 years 5.0 percent
  • 75+ years 1.3 percent

If you are a veteran or have a loved one who is, it is crucial to understand that veteran resources go far beyond career and end-of-life issues. Many veterans are not taking full advantage of VA offerings. Many VA age-related programs can benefit a veteran’s life beyond simply planning their future care. Become acquainted with the many options available and determine which programs you qualify for and best serve your interests. With so many benefits available through the VA, you can improve your living situation during your retirement.

The overview is just a summary of what may be available to a wartime veteran or a veteran who is disabled as a result of their prior service. If you or a loved one would like to explore whether you are eligible for benefits, please don’t hesitate to reach out. Please contact our Ruston, LA office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help.

How to Write a Letter of Intent For Your Special Needs Child

Writing a letter of intent (LOI) for your special needs child can help bring them family continuity and comfort after you are gone. As a parent, the most valuable asset your child has is you and your ability to care for them. You, like no other, fully understand the nuances of your child’s coping mechanisms and what can trigger adverse outcomes. A letter of intent is meant to convey these broad personality traits as well as practical details of your child’s life so that in your absence, another family member or caretaker can make sound decisions about your child’s forward care. Don’t think a letter of intent is something to write when you get older. Parents of all ages with special needs children should have a letter of intent, review it annually, and update its contents if appropriate. Accidents and illness that may befall you are as prevalent a need to have a letter of intent as is your eventual death.

Though an LOI is not a legal document, it is one of the most important documents a parent can prepare for the future well-being of their special needs child. The letter plays a central role in your child’s special needs plan by putting your perspective on the details of their life. You can begin your letter by identifying the categories you want to address and then filling in details. There are templates of LOI available on the internet, and you might want to use one as a starting point for your letter if you feel overwhelmed and need some structure to begin.

The letter’s purpose is to guide a trustee, family member, or guardian tasked with the care of your dependent child. You will need to sort through feelings and expectations as well as noting people, places, and services that relate to your child. You may want to spend a week taking notes throughout your day as you interact with your child to think through some of the broader issues, documenting how you feel about your child and their future. The Special Needs Alliance has identified some excellent categories to include in your letter of intent. Each category can be found in the boldface type.

Outlining your family history is an excellent place to begin. When and where you were born and raised. If you are married, describe when and how you met. Include anecdotes about your grandparents, brothers and sisters, other relatives, and special friends. Incorporate when and where your child was born and raised. List their siblings, and who was particularly special to them. Don’t overlook special family pets that may have a significant impact on your child. Recount fond memories, favorite times, and feelings about your child. Provide contact information for family members and friends. Follow the family history section with a general overview, summarizing your child’s life to the present and your thoughts and hopes about how you envision your child’s future.

Next, provide the details of your child’s daily schedule to give context to their caregiver. What are the best ways to communicate with your child and how to best manage their behaviors? Do they have hot button words that should be avoided? Who are your child’s teachers, aides, bus drivers, social service providers, or employers? Be as descriptive as possible about your child’s favorite activities and events and also include what your child doesn’t like. Some children love to rake leaves but get frustrated when tasked with folding the laundry, and these details are useful for future caregivers.

Does your child require assistance with personal care? What size clothing do they wear? What are their personality traits? Do they participate in social activities? What upsets your child? What situations are best to avoid? How do you want a guardian to discuss your death or incapacity? These are some of the questions you can answer in your letter of intent. You can detail your child’s food likes and dislikes, including any allergies they may have. Did you make your child a special birthday cake? What are your traditional family holiday menus? Compile recipes or describe any specific way food should be prepared or served. Remember that some foods can affect the medications that your child may take.

Next, broach the topic of medical care. Include the detail of your child’s specific disability(s), medical history, and include the medical history of immediate family members. Name all medications your child takes and describe how they are administered and for what purpose they are given. Include any allergies your child may have. Provide a list of their current doctors, therapists, hospitals, and clinics. Include how often your child has medical and therapy appointments and describe the purposes of and goals for these sessions. List all of your child’s current health insurance information. If your child has medical records that can be retrieved online, provide the accounts username, password, and any other relevant data.

If your child is still in school, describe their educational life. What have their experiences been, and what do you desire for their future education? Note what school your child attends and what schools would you like your child to attend in the future. Does the school provide specialized services to your child? Does your child participate in extracurricular activities? Address your wishes regarding the type of education you prefer they receive, such as vocational or academic. If there are specific programs or teachers, you want to be involved in your child’s overall life plan, name them, and provide contact information.

If your child is employed or you hope them to be in the future, describe how you envision their employment. What types of work and work environments would be beneficial to your child?

List all government benefits your child receives. These benefits may include Medicaid, Medicare, Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Supplemental Nutrition Assistance Program (SNAP, aka food stamps), and any housing assistance. Provide your child and both parents Social Security numbers. Give agency contact information, your child’s case numbers, and discuss the recertification process of each benefit. Include all reporting requirements and important dates so that benefits do not lapse. Provide copies of financial documents.

How do you imagine your child’s residential environment? Is it your plan for your child to remain with family, friends, or will there be an organization tasked with their living situation? If your child is unable to stay with the family, what is your hope for an alternative living environment? If they are placed in a group home, would you like it to be in your current community? Should the living arrangements be in a smaller or larger setting? Does your child want to live alone or have roommates?

What type of social environment does your child prefer? Do they enjoy sports, movies, or video games? Can your child be given spending money, and how have they fared handling cash in the past? Does your child travel to visit family or take vacations? With whom do they travel most successfully and happily? Include a description of your child’s religious environment. Does your child routinely attend services? What church, synagogue, or mosque do they frequent? What local clergy might know your family and your child?

What are your desires for your child’s final arrangements? Does your child have a will and any advance directives? Where are these legal documents? Have you planned for a funeral, burial or cremation, cemetery, gravestone, or religious service? Is there someone specific you prefer to officiate the ceremony?

As your letter of intent takes shape, you might realize there is other information you want to share to provide the best guidance to the person who will care for your child. In your annual review of your LOI, you may find some passages unnecessary as your child grows up. You may want to include new detail as your child’s personality develops. Think of it as a living document to be edited, added to, whatever you think will serve your child’s interests best. Put your letter of intent with your other relevant legal and personal documents. Writing a letter of intent can be a very emotional experience and a difficult document to write because you must think about how your child will live in the world without you, their parent. Approach this letter as a gift to your child and their future. You know your child better than anyone else. Even in your absence, you can still help to guide their future life, hopes, and dreams.

We help families create legal plans for loved ones with special needs. If you would like to discuss your particular needs, please don’t hesitate to reach out. Please contact our office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help.