Nugen Law; focusing on estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.

good evening and welcome to PBS Fort Wayne Show tonight is LIFE Ahead.

>> If you've watched us regularly you know that we have different topics every Wednesday night at seven thirty and you can also see those shows again on YouTube and several times through the weekend on PBS .

But tonight I think you're really going to enjoy the show.

>> We're going to be talking legalese tonight.

Is that a word, Brian?

I hear a lot.

>> This is Brian Nugent and if you watch this regularly, you know Brian, he's an attorney and he's with us about once a month here on LIFE Ahead for several years now with this figure out three years for this actually you said that to me in one of the shows and it's at least four or five years really I went back and it has been some time.

>> Wow.

Oh yeah.

See how time flies?

It does.

Unfortunately there's a long we can't stop it.

That's true.

But Brian will have different legal topics each time that he comes and tonight though we're doing something kind of unusual and I love this idea we're using and maybe you used as well a lot of legal terms or you hear them and you're not quite sure what it means.

>> Well, that's what we're going to talk about tonight.

>> The basic terms I like that you call them and I never heard that before.

You instrument right.

>> Does that mean like documents?

What does it mean?

So I think generally we heard the term document but as an attorney I like to look at them as a legal instrument.

It's something that's in writing.

It's something that we're writing specifically for that individual document to me sounds like it's more of a fill in the blank and that's definitely not what's happening when you're working with an estate planning elder law attorney.

>> They're instruments that are unique to you and they were crafted for you and for years like well could be will you be interested in powers of attorney any of those types of things?

>> OK, all right.

We're going to define a lot of those terms tonight and you can be in on this show too because we're going to be asking you to give us a call with your legal questions (969) 27 to one and you can see that on the bottom of the screen and that'll appear fairly regularly here the next half hour.

>> Don't don't be shy.

We do have a phone operator back in the control room.

That'll take your question.

We'd love if you talk to us on the air but if you're not comfortable with that you can give her your question and I'll give it to Brian.

>> OK, Brian, let's turn it out here.

All right.

With some of these definitions let's start with Will's.

>> That's the simplest thing.

So will is when we're thinking about at the time of our passing who it is that we're going to a point to handle our affairs in Indiana.

We call them a personal representative.

So who is it that's going to be acting on our behalf to make sure that our wishes are implemented and that's a personal representative that will is an instrument that's written.

>> So I've used the word instrument instrument instrument that's been written that indicates that someone's debt should be satisfied what assets they have assets meaning anything that has a value, what assets need to go to a particular person or to a particular charity or religious organization.

What percentage of one's estate should go to any of those entities, et cetera?

So it's an instrument that spells out when I pass where everything should be distributed, how my debts should be handled, who does it's going to be in charge of that and by using a will be go through something called probate and we're going to talk about it a little bit more.

>> But tell me a little bit we said will write living will that is different living wills very different.

>> So a living will you can think of it is do I have the desire to have the will to live if the in essence the effort to sustain my life is futile?

So if I'm actively passing the doctors have done everything I can do.

There is nothing more that can be done for an individual in that instance do you have the will to live?

Are you saying that it's OK to let me go?

You don't need to keep me alive in a vegetative state.

I'm not asking for any of that.

Please allow me to go.

What I will say Sandy about living wills is that despite there being and writing I always encourage folks to speak with their loved ones, speak with those around them to make sure that they know what it is that you want in that instance you think because it's in writing it's black and white, it makes it a lot easier sometimes it does.

I think really what it does that living will does is that it removes guilt from the loved ones that are having to make those decisions on your behalf.

So if you've taken the opportunity to speak with them in advance, you've let them know what it is that you do or that you don't want to have happen in that instance it really removes a lot of guilt for them and that living will is backing it up for sure.

>> But that conversation cannot be avoided and I encourage a great idea.

A lot of people aren't comfortable with that but I wish they would be because it's it's great for the people still here.

>> Well, if you're uncomfortable now when you're healthy and things are going well, that conversation doesn't get any easier in an emergency situation.

Yeah, Or when you're not doing very well.

>> So bring those things up when it's a conversation like this, when you're talking with them you're in a comfortable setting when you're not surrounded by doctors, you're not surrounded by other folks and you're distracted or there's an emergency situation going on.

>> Talk about it when you're at the campfire in the fall or you have a getaway at the lake or you know have have your family member for a Sunday night dinner you're having playing cards.

Just make it a normal part of discussion.

It isn't something to be feared .

You know, death is inevitable unfortunately.

But if you've had that conversation with folks or if you've been put in the situation of needing to make that decision for someone, you most definitely recognize how much easier it is to make that decision if you've had that discussion with the person that that's been appointed you as their representative in that instance and it doesn't matter if you're not comfortable with this is my theory.

>> Sure you don't have to like have one conversation for two hours and go everything.

>> You could just throw a little bit out here and there, you know.

Yeah.

While you're doing dishes after Thanksgiving you could say oh by the way, I want to be cremated or something like that.

>> I agree with you.

It is not something it's a conversation that's healthy and you're having the conversation you gave the reference of a Thanksgiving dinner.

I typically will say that to at holidays when it's it's not an uncomfortable time people are uplifted and have you know.

Yeah.

In this instance I would want that and that's the instance I would want this.

>> And so you're dropping those little pearls of wisdom.

So when the the event happens you've educated those around you and it's more it's easier for them to make that decisin right.

>> And less guilt because they know you've said that with your words.

>> This is what I want.

You know, we were talking about living wills.

>> Isn't there something in there about Lexi that you can say I don't want to come back to my life but DNR do not resuscitate so that you can do nutrition and water so a traditional living will in Indiana gives you three choices.

>> The first choice is keeping alive at all costs.

I'm going to be kept alive in a vegetative state so give me artificial hydration nutrition.

The second option is generally I don't want to receive artificial hydration nutrition.

Just let me go.

The third option is I don't want to make a choice.

I want someone that I've appointed to make the decision for me.

>> Where is your health care represented that your health care representative?

>> You got it.

We're now seeing within our health care represented designation forms that living with language is embedded in that as opposed to being a separate document.

>> OK, yeah and where where do you keep that?

>> I mean you're living will well you're living will your will will and testament.

Well it's not part of last will and testament.

It's a completely separate document.

Where should you maintain it first if you do have loved ones that are helping to make those decisions I would encourage you to give them a copy.

I would also encourage you to have with your medical file with your primary care physician to make sure they have it on record there.

Yeah, but and then wherever you keep important papers sometimes I don't necessarily think that the documents should be kept at the bank and safety deposit box when you can't get to you got to keep or keep you you've got to find the key.

>> You got to go to the bank and they may have set hours keep it where you keep your important papers at home and then let your your again your family members, the decision makers where they're located.

I also like the idea you there are digital ways that you can store those documents online.

So for example, if you're traveling and you need reference to health care designation or you need a living well and it's back in Indiana.

Gosh darn it.

Wait a minute.

We're using this service where we can store those documents online so you can have access to them.

24 hours a day wherever you are if you've submitted them to your primary care physician, that primary care physician is part of a larger network.

Those documents are typically shared network wide but yes, make them available to yourself and to those that are decision makers and medical professionals in your life as well.

>> Well, in addition to having the talk with them about your will and testament, you might also make sure that you have a conversation with your family again.

>> You could throw this in here and there where your documents are all those things and I don't know I mean like in the desk in the second bedroom upstairs in the third drawer I don't know there you go are in the green folder whatever that may be.

>> Well, what else would you include, Brian, that you should leave for your family in addition to the will or living will so essential estate planning.

So we want to make sure everybody needs a well the will could be as I say, one that's taking us through probate.

It could be a will that's indicating that if I have a trust in the assets I have I pour over into that trust.

>> We want to make sure we have a health care representative designation prepared meaning if you are unable to make health care decisions for yourself, who is it that's going to make those health care decisions for you?

So sometimes people have the concern that if I sign that health care representative designation I'm no longer able to make decisions for myself.

>> It's like a guardianship.

It isn't a guardianship.

You're in complete charge.

It's only it only comes into play if there's a point in time where you're incompetent or incapable of answering questions regarding your medical care.

So last will and testament health care represent designation either with living wills language or a separate living.

Well, I'd like to see separate Hipple waivers.

HEPA stands for Health Insurance Portability and Accountability Act.

Those health care representative resignation papers typically have that language in it.

But my experience has been that hospitals and doctors are used to seeing separate waiver forms so if we have that separate form you're not having to point out in the document where these this language regarding hip it is you have a separate document and hospitals and doctors offices are used to seeing that.

So those are some of the very basics that everybody should have in place.

I would also encourage them to have something called a durable power of attorney.

A durable power of attorney is a document that permits someone to make financial decisions on your behalf.

There was a time in Indiana where we could combine financial and health care decisions in one document.

>> We can't do that anymore.

They have to be separate documents.

>> You can have the same person if you you can use the same person of course.

Yep.

So durable power of attorney.

It's allowing someone to do things like signing checks or speaking to an attorney, speaking to the bank, speaking to your financial advisor.

Yeah.

Anything you could do in writing your permitting someone else to do on your behalf.

Very important to have that in place with that health care rep designation and the durable power of attorney.

Hopefully we're avoiding the need of a guardianship.

Nothing wrong with guardianships.

They're very appropriate and they're done every day.

But if we can avoid having to go to court and getting the court involved just by signing a few documents, you can avoid all of that for your life because that takes a probate judge to agree to a guardian.

>> Correct?

Does you need to have a statement from a health care provider saying that you are unable to provide care for yourself and you need guidance from somebody else?

>> We need your guidance for Macy here.

She's called in with a question.

Macy says What if you change your final wishes on paper but you do not update your legal forms, OK, or your health care representative do they have to honor your new request?

>> No, they don't have to honor your new request.

Now when you say you've indicated that you're making your changes on paper if you're making your changes on paper and you're complying with the requirements of a last will and testament if you're complying with the requirements of health care designation, the requirements of a durable power of attorney.

Yes, and they could be enforceable.

But if you're just using a piece of paper and saying I want this or I want that those are are for majority of the time not use there are very rare instances when someone's passing and they say out loud this is what I want things to be done and it's reduced to writing immediately or there are some exceptions but generally no don't rely on don't rely on I wrote that in the letter to my best friend or I said I want this to happen or that to happen.

I would not count on those being enforceable or usable whatsoever.

>> So you can't write a new letter with different wishes or change where things to go or know your health care representative for staple it on to your well or on your will itself.

Sometimes I've seen people write on a will.

They'll scratch a section out, write something and can't do that.

Can't do that no.

So don't assume that because I had a will and I've changed it at some point that I've written over it and I've initial that that that's enforceable.

It's not I would caution to all the people can find these forms in any number of places right.

You can go online and you can find documents there software that sold.

It's so important that these are effective and properly written.

I do recognize that it costs money to hire an attorney.

I recognize that but they're so important that they work appropriately for you in that time of need.

I would encourage you to make sure that you're getting good counsel and there are programs where attorneys volunteer their time to do those documents for folks without court.

So take advantage of right aquil days that happens right and all over Indiana and surrounding states so I would encourage folks to take those things very seriously and make sure that you do have properly signed Macy.

We're not just writing on a piece of paper and assuming that will take place or saying you a parent saying to children this is what I want to happen.

I want this to happen, I want that to happen.

That's not enforceable.

>> So we want to make sure it's in writing and done properly.

Now I forgot my question to you answering Macey's there.

Oh, I know we're talking about what you can't do.

You can't scratch out or write something about when your will.

>> But do I understand I mean same thing assets you have not big ones not home or car or whatever but I don't know his coffee table stereo I don't know whatever you could make the list and say who those things would go to if if you can attach that to your will or so long as the will or trust references the fact that you have the right to prepare a memorandum of regarding personal property.

So yes, you can do a personal property memorandum.

It's attached to a will or a trust and that personal property memorandum can say Gramma's cocktail table goes to Becky Yang Grampa's draw a chest of drawers goes to Steve.

>> You can do that.

The nice thing about doing that as a separate memorandum is that if you do want to change your mind at some point regarding where that personal property goes that is the time that you don't have to do a new will.

You don't have to do a new trust.

You can write out that memorandum and indicate I don't want that chest of drawers to go to that person or that cocktail table to go to somebody else.

I've changed my mind and I wanted to go to a particular entity particular person.

So by referencing in the will inside the trust that you can do personal property memorandums, we can do that without rewriting the entire will not change my change.

>> I mean or I've taken a trip and I bought something that didn't have at that time and now I want to be able to give that I don't have a personal property away.

>> So those things may not necessarily have a high cash value.

They have a high value a lot of times different emotional without a doubt.

>> Exactly.

And that might save the siblings or grandma disagreement from arguing but grandma told me I could have it.

>> We have another phone call.

>> This is from Sam and Sam.

Thank you so much for watching us here on life .

I had Sam says my dad passed away twenty years ago and left me everything but we never took the will to probate since then my sibling has taken over his property.

>> Well, is it too late to go to probate or to do anything?

So it is it is too late to go to probate.

You have three years.

Yeah, you have three years to go to probate.

>> So if the will but what I don't understand in the question Sam is that when you say take over the property so there's real property and there's personal property if it's personal property that's the table, the chair those things that are mobile don't get divided house versus real property which is real estate.

>> So I don't know how the brother I think was a sibling sibling could have taken over real property without somehow that having been deeded to them.

So if that real property, that house that farm if that if the title hasn't been changed at the recorder's office, it's still in the parents your dad's who had passed away and his name you may not be able to probate the will however you may still be able to have intestate succession which means without the will how does the law indicate the property passes so intestate succession if there's more than one sibling living wouldn't give it all to one sibling in this instance same sibling that took the property.

>> So if it's personal property that's going to be an uphill battle to get your piece of that.

But if it's real property it would still be titled in your father's name and like the house the house car is not real property.

>> Oh yeah.

And cars would be handled by at the BMV now in Indiana we can go to BMV with the death certificate and we swear how that how those that vehicle was supposed to go real property so this would be a house, a farm, something like that.

>> But let's say and I'm just guessing same situation but maybe he means his brother's living in yeah that's my point.

>> If he's if he's there taking over and he doesn't own it he may be there now in order.

>> I'll just throw this in.

Sam, in order for your brother to say adverse possession he would have to be paying real property taxes there.

He's there are several different standards that he has to meet in order to claim adverse possession and even with that he has to go to court and indicate that it should be his.

>> So he has three years to go back to probate to file a will.

OK, to open an estate.

>> OK, so in farm situation hey, better just get some legal counsel and look at it.

>> If it's real property I would without a doubt get legal might be worth it.

Yeah OK thank you Sam so much.

>> Appreciate it.

OK we still have a few more minutes if any of you would like to give us a call here.

>> Meanwhile you mentioned Hippo a waiver.

>> Explain again what that is and why we need to know about this.

So when you go to the hospital or go there every time you sign what they're having you sign is for that instance they're saying it's OK for us to tell your insurance company that you were here and we're going to tell the insurance company why you were here so I can't at the doctor's office they cannot disclose what treatment they were providing to you unless you say to them it's OK.

Yeah.

So the Hepple waiver is an instrument that is more general in nature.

It's not limited to just a one time doctor's office visit or a hospital visit and we want your health care representative to be able to see your medical records if the health care representative is being asked to make decisions on your behalf.

So to make sure that that the groundwork is laid and everything can move forward smoothly, I encourage folks to have a type of waiver in place that makes sense.

>> OK, we're going to kind of make a group of things here in this question trust we have testamentary yes.

>> Testamentary trust revokable trust irrevocable trust and I don't know are there others?

>> So Jantar, let's start with trust generally.

OK, so trust is not something to be afraid of .

Sometimes people say oh I don't have enough money or a trust is a very, very broad category.

It's a giant umbrella category and a trust in essence is a contract and there are three players in every trust I have someone called settlor granter I like to say trust maker because it makes sense.

Oh it's the person that makes the trust the settler, the grantor, the trust maker.

Then the second position that we have is someone called a trustee.

The trustee is the manager of whatever in the name of the trust and the third position is beneficiary.

That's the person that can benefit from the assets in the trust.

So those different types of trusts that you were referencing Sandy , it's true we have a broad category of trust if we slice it down the middle one half of those trusts are revokable.

The other half are irrevocable, more permanent nature.

There are ways that those can be changed but generally we should go into those thinking I can't change an irrevocable trust.

Irrevocable trust can be changed and we use different types of trusts for different reasons.

So a testamentary trust is a trust created inside the will so it isn't established until it passes last will and testament.

In fact the will trust OK we have living trusts.

Those trusts are typically used to avoid the probate process.

So as the name suggests you create those while you're living and you're wanting to avoid the probate process and distribute your assets after your passing without needing to go to court we could have special needs or supplemental needs trusts so if someone's a special needs person they can receive they can receive the funds in that trust and it doesn't negatively impact their ability to get SSI or their ability to be able to get Medicaid benefits, et cetera could be VA benefits as well.

So we use those in instances planning in advance in case the person at the time the person receives the money they are special needs, supplemental needs at that time if we know their special needs supplemental needs at this time currently we may form a special needs supplemental needs trust for them but any number of different trusts there could be for a different reason.

>> So that's why you need to get some counseling because you need to make sure your trust matches your situation.

>> Yeah.

So you make a great point.

I'd like to say when you're speaking with counsel don't presume what it is that you do or don't need really explain to them what it is you're looking for the help that you're or what you're trying to do and rely on them to allow suggestions.

I will.

Elder law attorneys, estate planning attorneys want to help .

They really do want to help you.

It shouldn't it isn't something to be afraid of .

Go in, ask your question, explain your situation and allow them to make suggestions to you.

Ultimately you're the decision maker.

You decide what you do or don't want to have in place.

But if you have that open discussion with a professional they're going to guide you based upon their experience, their education.

>> Well, just in talking tonight here about instruments, if you will, you know, maybe you I have learned about a lot of things I just didn't know before.

>> I heard a lot of terminology.

I just didn't know it was out there and was even possible.

Sure.

OK, Brian.

>> Yes, our time is going great.

You fast.

Thank you.

Those of you that called in with questions and Brian again will be back to give us some more legal advice in another month or so.

Meanwhile, you can keep watching us here on Wednesday nights at seven thirty and this show, by the way, will be available on YouTube and it'll be airing on other PBS channels throughout the weekend.

>> So lots of opportunity to see you, Brian.

Thank you.

Good to be here.

Good night, everyone.

Nugen Law; focusing on estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.