|
| Home |
| Biography |
| Areas of Practice |
| Contact Info |
| Articles |
| Download Our Brochure |
|
Distance Caregiving; Hands Across the Borders
Daniel P. Kapsak, Esq. An increasing number of us are owning property in more than one state and/or are spending parts of the year in different states. Because we are more mobile, estate and disability planning require that we--and our legal counselors--consider the specific legal requirements of each state in which we own property or spend our time. These legal requirements include the documents we have drafted for us , the persons we designate as our fiduciaries , and the potential situations in which we may find ourselves. This articles will provide the reader with a brief overview of some of the potential problems and issues involved in addressing our mobile lifestyles. No matter the type of document--be it a will, power of attorney, health care proxy, or living will--each state will have its own formalities and requirements in its drafting and execution. Many states may follow a uniform code or model law; each state will have its own interpretation of such laws or will have created its own uniform law or collection of laws based upon its particular judicial, customary or statutory idiosyncrasies. A document such as a holographic will (handwritten) may be valid in one jurisdiction but not in another. A living will generally addresses life sustaining surgical or medical treatment, but the specific actions permitted or prohibited may be drastically different depending on where the document was drafted, under which state's laws does it operate, and a particular state's interpretation or definition of a specific term or the medical condition of the executor of the document. Naming persons to positions of trust (fiduciaries such as agents, guardians, conservators, trustees, personal representatives) requires consideration many issues, such as the relationship of the maker/principal to the proposed fiduciary, the trustworthiness of the fiduciary to the particular responsibility, whether the fiduciary lives in the same locale as the principal, and ability of one fiduciary to work with other fiduciaries. In many instances states will draw distinctions between resident and nonresident fiduciaries. Whether the fiduciary is a person or an entity such as a trust company or bank will also come into play. Making financial decisions may be relatively easy even if out of state (and permitted), but dealing with medical decisions half-way across the country (or the world!) may be a completely different matter entirely! And if family members (or other loved ones) dispute the decisions to be acted upon, who has standing to contest or defend the decisions? Finally, we need to consider the particular circumstances we wish to address in the documents we have drafted for us, both in terms of the time of effectiveness of the document as well as making sure that the document will do what we wish it to do. A "fill-in-the-blank" power of attorney may supposedly grant the agent a general power or a will may be expected to transfer all one's assets, but without a specific mention of a power such as real estate transactions, an agent may find it impossible to transfer the property of a now disabled/incapacitated principal, or the will may only transfer the clothes on my back, no more! Documents such as wills or titling options such as joint tenancy will become effective upon our deaths. Other documents such as powers of attorney will be effective only during our lifetimes, though we must be careful to insure that they survive our disability--are "durable." Otherwise any ability our loved ones have to act on our behalf will cease upon our becoming disabled or incapacitated. The most important action anyone can take in this area is to work with persons whose practice (legal, financial, insurance) is devoted to such issues. Documents and the plans they evidence should be comprehensive and deliberate; fiduciaries should be carefully chosen and informed of their responsibilities. Careful planning will insure that what we wish to happen will indeed happen, even across the miles. About Daniel P. Kapsak Mr. Kapsak's practice is devoted to all aspects of estate and business planning, with a special emphasis in elder law issues. He is a member of the Boulder County Bar Association, the Colorado and Nebraska State Bars, and the American Bar Assocation. Mr. Kapsak is a member of the Boulder County Estate Planning Council as well as the Tax, Probate and Trust Sections of the Colorado and Boulder Bar Associations. He serves as co-chairperson for the Ethics Committee for Longmont United Hospital, and is a member of the National Academy of Elder Law Attorneys (NAELA). Mr. Kapsak is principal of The Kapsak Law Firm, LLC, Longmont, Colorado. "Will substitutes" such as joint tenancy or other titling options providing for the transfer of ownership by operation of law, or contractual arrangements such as beneficiary designations may be affected by a specific state's laws. The author recommends that these matters be addressed by appropriate legal, insurance or financial professionals. The author acknowledges that familial relationships are very important in these matters, and the spousal relationship carries with it certain "privileges" related to inheritance of assets and a person's ability to disinherit a spouse, the amount of assets to be inherited, and the ability to make decisions related to a spouse's financial or medical care and treatment. The author recommends that these matters also be addressed by knowledgeable professionals. |
© 2 0 0 2 - 2 0 0 7 K a p s a k L a w F i r m , L L C A l l r i g h t s r e s e r v e d. |