KalishLawTexas' legal blog The Woodlands

The last two blog posts have dealt with helping and caring for elderly adults.    During my research on this subject, I have discovered a number of valuable resources that I’d like to share.

1.  AARP www.aarp.org :   AARP has a wealth of information online. The website is available in English and Spanish.   There are various articles and a “Caregiver Resource Center”.  Here is a link to an article about helping elderly parents move. http://aarp.us/pbVQ6g  .  Real people share real life stories. 

2. Some Recommended Books:

Caring for Your Parents, The Complete AARP Guide by Hugh Delehanty & Elinor Ginzler

How to Say it To Seniors; Closing the Communication Gap with Our Elders, by David Solie

Social Security, Medicare and Government Pensions,  Nolo Press

3. Other online sources:

The Mayo Clinic:  Aging Parents; 5 Warning Signs of  Health Problems http://bit.ly/aY89e

Medicare Rights Center http://www.medicarerights.org 

Meals on Wheels Association www.mowaa.org

National Association of Area Agencies on Aging www.n4a.org

National Institute on Aging; Alzheimer’s Disease Education & Referral Center http://1.usa.gov/Be7aj

Family Caregiver Alliance www.caregiver.org

National Respite Locator Service  www.respitelocator.org

Aging With Dignity  www.agingwithdignity.org

HospiceNet  www.hospicenet.org

I hope that these resources will prove helpful to any of our readers who are facing this situation now or planning for the future.

Kalish Law Office www.kalishlawtexas.com   The Woodlands, Texas

My last blog post dealt with caring for and helping senior adults, and mentioned some of the challenges that you are likely to encounter.   Now I want to share my review of a book that I discovered.  

”How to Say it to Seniors; Closing the Communication Gap with Our Elders” by David Solie (Prentice Hall Press © 2004) is an excellent guide to communicating with senior adults.    I highly recommend this book for anyone who is dealing with senior adults in a family or a business relationship.

Mr. Solie is a speaker and educator. He has a background in finance, and worked for several years with companies that primarily dealt with senior adults. 

The book presents a fresh and honest perspective on the communication gap between seniors and middle-aged adults. 

We all go through developmental growth / personality development at different periods of our life, he writes.  What is seen too often as a “decline” in older adults can be seen as a normal developmental process. The older person is simply learning to deal with the changes in life, losses, and independence that aging brings.  

Solie states that “the secret mission” of older adults is to 1) maintain control and 2) leave a legacy.  He suggests ways to allow the person to keep control and dignity while dealing with the changes that the person is going through.  He explains why “trying to help” and explaining things logically (or, what is logical to the younger adult) meets with such strong and sometimes baffling resistance, why an older person’s focused occupation with a certain topic makes sense to them but seems obsessive to a younger person and how to deal with “NO!” 

It is written in a manner that is respectful to all concerned.  The concerns and frustrations of all sides are examined thoughtfully.   Various practical ways to approach common problems are suggested.  Although concerns over the elder’s safety and health are treated as serious, younger adults are also advised that sometimes they just have to “let go” and allow the elder person to choose their path.  The most progress is made when the elder person is allowed to maintain as much control and choice as possible.

Of course there are situations that have progressed to the point where physical, emotional or mental issues have rendered the person a danger to themselves or others and someone must step in immediately and take control.  But even those extreme situations can be helped by a willingness to see things from a slightly different viewpoint.

I highly recommend this book to anyone who is dealing with older adults. It is pleasant reading, refreshingly honest, and without psychological, medical or legal mumbo-jumbo.  Just good, solid advice.

Kalish Law Office, The Woodlands, Texas.   www.kalishlawtexas.com Wills, Probate and Elder Law. “Passionate, Professional and Personal. We Make the Difference.” Since 1984

Caring for aging parents presents a variety of challenges. Due to changing times and financial concerns, it is more important than ever to have a plan.  Here are some situations in which you may find yourself:

1. Your parent(s) have planned for their retirement years and have adequate assets, and presently do not need any assistance with day-to-day activities or finances, but you are beginning to be concerned for the future.  
2. Your parents(s) have some resources, and maybe even have a plan, but you don't know the details and believe they may run out of assets while having serious medical needs.  
3. Your parent(s) have no assets, very limited assets, or adequate assets but poor physical health and you are definitely going to need to be involved with their physical and/or financial care.

 Here are some challenges that may arise:

1.      Siblings or Lack of Siblings:  If you have siblings, there may be disagreement between you as to how to handle the situation. It is also common that parents fear showing favoritism and so they seek to avoid naming an executor, granting a power of attorney, and so on, even if they feel they need to.   Siblings may avoid discussing the subject with the parents, or with each other, for fear of seeming dominating, or greedy.  “Only” children have a different set of problems, especially when a parent lives far away, and even more so if the parent is alone.  Onlies have no siblings to lean on or to ask for help and so they are often at a loss as to how to negotiate a parent’s aging issues.

2.      Trust issues:  There may be longstanding trust issues between parent and child.  Or a reluctance on the part of the parent to see the child as a capable adult.  There are also some physical ramifications of aging in some people, such as early Alzheimer’s disease and other brain-related conditions, that actually cause a lack of trust, or outright paranoia.  It is therefore difficult or impossible to have a meaningful dialogue about health and financial issues with a person who cannot trust.

3.      Fear of the loss of independence leading to procrastination:  Older adults often find that it is difficult to even discuss anything that has to do with a loss of independence.   This often leads to procrastination about planning for the future.  Middle-aged or younger people have difficulty with this, get frustrated and sometimes feel that getting aggressive about decision-making is the only option. This can lead to even more resistance on the part of the older adult.

What Can you Do and How Can an Attorney Help?

1. If your parent is willing, you can help him/her find a qualified estate planning attorney or elder law attorney.  Your level of involvement will depend on your parent’s physical health and willingness/ability to be involved in such discussions.  Your “help” may consist of nothing more than finding an appropriate attorney and giving the name and phone number to your parent, and/or driving him/her to the appointment and sitting in the waiting room.   Your parent may also request more or less involvement from you than what you feel comfortable giving but having some knowledge about the situation may relieve some of your worry.
2. You can see an attorney yourself.  If you have concerns and want help with how to deal with the situation of an aging parent, you can see an attorney on your own. The attorney will guide you through the most common legal concerns that arise in these situations; for example:   What are general powers of attorney and is one recommended?  What are the considerations for health care powers of attorney and other related documents?  What about medicare / Medicaid planning?   What options are available for early distribution of real property or personal property to beneficiaries and what are some possible problems with this strategy?   Is it desirable to try to avoid probate?
3. It is often easier to discuss difficult issues in front of a third party. Whether the third party is an attorney, financial planner, family doctor or therapist, people often find that the professional office is a “safe place” to respectfully voice their concerns, questions and fears.
4. An attorney can guide you to other resources.   An attorney can help you find available social services, literature, websites, and other professionals that are beneficial to the journey that you are on with your parent.   Your parent’s situation may require a “team effort” and a qualified elder care attorney can be part of that team.

Kalish Law Office in The Woodlands / Spring Texas has been helping older adults and their families with estate planning issues since 1984.  We are passionate about assisting our clients in this legally and emotionally difficult area in a competent and respectful manner.  We look forward to assisting you and your family with creating a viable future plan to ease some of the inevitable concerns and potential conflicts that arise in this area of law.  281-363-3700

The Will:  If you have a signed original will, you will need to keep it in a safe place.  The first impulse that most people have is to put it in a safe deposit box.  This does preserve the document, however it may create a problem if there is no one who is authorized to access the safe deposit box.   If you choose this option, it is best to name someone (in addition to your spouse) as a joint holder.    Having someone in addition to your spouse ensures that there will be a trusted person of your choosing who can get to the contents quickly in case something happens to you and your spouse together.  In the event that you do not have a joint holder, a court order will allow the will to be retrieved by a bank official, but this additional step will add unnecessary expense and delay.  Remember, the purpose of drafting a will and powers of attorney in the first place are to allow YOU to be the one who is directing the course of events and to SIMPLIFY the process.  

If you choose to keep your will at home, make sure that it is protected from fire or flood.  A safe is a logical choice for many people, but make sure that the safe is well hidden and kept away from high heat (not in a hot attic) and the document is protected from flooding (not on the floor in the closet in the laundry room). It is a good idea for your executor and alternate executor to know the location of your will. 

Filing the will in the county is not necessary, although some people still feel better doing so. If you choose this option you should make sure of two things: 1) the will should not contain full account numbers or private information that could be used in identity theft; and 2) if you update your will you need to file the updated will (or notice that you have updated the will) in order to avoid confusion later on.

Some attorneys do keep originals in their offices for their clients, while others do not.  If a will is kept at an attorney’s office it can be difficult to retrieve if the attorney dies, moves, merges with another firm or retires.  There also may be a risk of fire, flood or theft.

Don’t keep old, invalid wills around to confuse the situation.  You can also notify a previous attorney who has drafted a will for you that you are requesting that your old file and copies of the (now) invalid will be destroyed. 

Whether or not to give a copy of your will to your executor, trustee, alternates, and even your beneficiaries is an individual decision. 

The Power of Attorney for day-to-day business; Durable Power of Attorney for Health Care

These documents must also be kept safe and dry, and out of harm’s way.  However, it is even more crucial that they be found exactly when needed, with no delay.  If you are injured and unable to speak for yourself, you want the “agent” you have named to be on the job immediately, coordinating your health care options and possibly taking care of financial concerns.  For this reason, be sure that the person that you have named as your agent knows exactly where to find the originals of these documents. It is also a good idea for them to have a copy, because copies may be accepted in an emergency situation.

Kalish Law Office is located in The Woodlands Texas and assists clients in the areas of estate planning and probate.  281-363-3700  Since 1984.

Divorce is difficult and emotionally taxing, even when the economy is stable.  Added to the already overwhelming financial stress that some families are already experiencing, it can seem like an insurmountable burden.

Divorce and business downsizing have a lot in common.  In both processes the principals involved must analyze their assets and debts, strengths and weaknesses. In both processes honest evaluation, flexibility, organization, and planning are essential in order to have a reasonably acceptable outcome.  In both processes there is anxiety, loss, and finally, a new beginning.

The process is made more efficient, perhaps even a little less painful by a willingness to accept personal responsibility, simplify, economize, and ending relationships (whether business or personal) that are no longer working.

Although emotions are likely to be running high, it is always important to step back and take a deep breath. Having family, friends, and professionals on your side that can be trusted to be honest with you while remaining supportive is important. 

Information gathering is essential.  It is never too soon to gather information and look at all of your options.  This is especially important if you have complicating factors such as a family run business, high assets or a complicated financial picture. 

Divorces can further be complicated by such factors as immigration issues, a child with a disability, or a non-traditional family structure.

A law firm with the expertise to “cross over” into various areas to assist you with the entire picture can make the process easier to handle.

Kalish Law Office 281-363-3700  The Woodlands, Texas  www.kalishlawtexas.com

“Passionate, Professional and Personal. We Make the Difference” Since 1984.  Divorce, Family Law, Business Law, Family Immigration, Non-traditional Family Law, Real Estate and Probate

Serving Montgomery, Harris, Walker, Waller, Fort Bend and surrounding Texas counties

If you are in a committed, long-term relationship with someone, but aren’t legally married to that person, there are some things you should know about Texas law.

A person who dies without a will in Texas is said to have died “intestate” (without a testament).   There are certain laws that determine how the decedent’s property will be distributed.   These laws will be followed UNLESS the decedent has taken the time and trouble to create a valid will specifying otherwise.

This means that if you and your significant other are living together in a home, sharing possessions, sharing finances, and/or a business, you may suddenly find yourself “without” those things in your life that you have worked to build.  Or, you may find yourself spending time and money trying to prove and protect what is yours.

Let’s take an example:   Joe has three adult children from his previous marriage.  Joe has divorced Ann, his previous wife.  Joe meets Sue, they fall in love and move in to Joe’s home. They do not legally marry, nor does their relationship qualify as a “common law marriage” in the state of Texas.  Therefore, they are legally only two single persons living together.

The couple continues to live together for 17 years. During this time, they contribute time and energy to maintaining the home, commingle their finances, and share personal property.  

After 17 years of togetherness, Joe falls ill and is unable to speak for himself or set his affairs in order.   The first of many problems arises, because Sue does not have the legal authority to manage his health care.   

Joe dies after a short illness.  A few weeks after the funeral is over, one of Joe’s children calls Sue and tells her that they need to get together to “discuss Dad’s estate”.  Still reeling from the emotional shock of losing the man she loves, Sue now worries about what will happen to her financially.

Under Texas law, since Joe died without a will, and was an unmarried person with children from a prior relationship, the law says that his property will be divided among his children (or their descendants, if one or more of his children has predeceased him.)  Sue knows that Joe never intended her to have to deal with this stress. She knows that the deed to the home is in Joe’s name only and worries about where she will go if she has to move. She also doesn’t know how to prove which part of the furnishings and other personal property are “hers” and which are legally “his”.

This is a sad situation, but an avoidable one.  For the couple living together who has either chosen not to marry, (or is legally unable to marry), this is a very real risk.  

In a related example, suppose that Joe had never legally divorced Ann, his former wife, but had not lived with her or had any contact with her for 20 years.   Unfortunately for Sue, Ann would still be Joe’s legal wife at the time of Joe’s death and would be entitled to inherit as his surviving spouse.  (In addition, the home and some other assets may belong partially to her anyway as “community property” of the marriage.)

Worry over inheritance can also arise in non-romantic relationships, for example, between roommates or close friends who live together in a platonic setting, look out for each other, and share assets and responsibilities.  If no specific provisions are made between two people who rely on each other there may be problems for the survivor later on.  

Moral of the story?   Don’t leave your loved one unprotected!  Have a valid will that protects her/him!  And, while you are at it, think about signing a Healthcare Power of Attorney so that your loved one will have “rights” in the healthcare setting should something unforeseen happen to you.

If you are in a vulnerable situation, make sure that you understand your legal rights and that you take the responsibility to plan for your own future.

A visit to an estate planning attorney can help you decide the best way to handle such situations and how to make sure that you leave a clear, legally valid will for your family and loved ones to follow when you can no longer speak for yourself.

You may think that it isn’t really worth your trouble to get a will.  Here are some reasons why people usually don’t think they need one:

1. I don’t really have very much to pass on
2. I’m young, and in college, or just starting out
3. Everything will go to my spouse anyway
4. I don’t have any minor children

Even if you are in one of the situations listed above, you still should have a simple will.

Your estate may not be large, but you probably have at least one bank account, one car, a home, or some personal property such as jewelry, appliances, electronics, pets and such.   If you own ANYTHING that is in your name or you have anything in your possession, (or you are about to), you should have a properly drafted and executed will.  Once filed and approved by the probate court, the person of your choice will have the legal authority to manage your estate, for example:

1.      To enter the premises of your property

2.      To open your safe deposit box

3.      To distribute your bank accounts

4.      To transfer the title of your car, boat or home to the person or persons that you choose

5.      To care for your property and manage it

Of course, not every will needs to be probated. But it is always best to have a valid will available.  Then, when you die (and we all will someday!), probate can be filed if it is needed.  If not, no big deal. But if it is needed, it’s too late to do anything about it once you’re gone!  

Here are some situations that you DON’T want to happen, but could, if you don’t have a will:

1.      Your best friend wants to take your pet and that was your agreement but your “heirs at law” (think of them as relatives who get to make the decisions for you because you didn’t have a will) won’t allow it.

2.      No one can prove their entitlement to your bank account and so it ends up as “unclaimed property” of the State of Texas.

3.      Your family takes a home or other property for themselves and your live-in partner of several years has no say in the matter.

If you have a minor child, please, please, please have a will!!  You should ALWAYS have guardianship and trust provisions for your minor child.  I have blogged about this before because it is so very important!

Now, who should you get to draft your will?  I believe that because this is such an important document, it is worth having an attorney draft it for you.  I have reviewed many wills that people drafted on their own, or with the help of forms.  Some of them have been adequate to file with probate court, some have not.  By the way, if the will “fails” in some way by being legally inadequate in the drafting or in the way it is signed and witnessed, it may prove useless.  In that case, the estate will be treated as “intestate” (without a will).  Here come those “heirs at law” again making decisions for you that you wanted to make for yourself!

When looking for a lawyer to help you with your will, choose a reputable firm with experience.   Choose a firm that will sit down with you and discuss your needs, and answer your questions.  Choose lawyers that will help you understand what you are signing in plain English, or in your own language if you don’t speak English well.  Choose a law firm that will schedule the signing of the will for you, with the proper number of witnesses and a notary.   

I just happen to know of a firm like that…..

Kalish Law Office is proud to provide such services to our clients.   For your initial consultation, we have evening appointments or telephone consults available by appointment.  We also have an attorney and paralegal that are fluent in Spanish.