Join Everyday Law and Estate Planning Attorney — Ben Neiburger, JD, CPA — as we discuss the keys to any estate plan and why you should always act only with legal authority!

Our guest today is my friend, Ben Neiburger. Attorney Neiburger is an elder law and probate attorney. He can be reached through his website, and he offers free 15-minute telephone consultations. He is the author of the estate planning guide, “Brighter Skies – Your Blueprint for Navigating Elder Care.”

Our podcast focuses on the instruments needed to take care of an estate and for decision-making for loved ones. Neiburger points out that if you do not have the right documents filled out properly to take care of an estate and to make decisions for loved ones who cannot, you will have to go through the court system at great expense of time and money.

Powers of Attorney, or POAs, come in 2 types; healthcare and property. These documents come into play while your loved one is still living but may be incapacitated in some way – by dementia, for example. These documents allow the agent to step into their loved one’s shoes and make the decisions they would make, if they were not incapacitated.

It is important to know that, although the forms for both POAs are easily found on the internet, it can be difficult to complete these forms properly without expert advice. If there are no POAs or if they were improperly completed and rendered ineffective, a family member would have to go through the court system to obtain guardianship of either the person (healthcare) and/or property (money) in the case of incapacity, at a cost of $5,000 to $10,000. POAs begin when they are signed (unless otherwise indicated by a date inserted in the POA) and end at death.

Another important instrument for taking care of loved ones when they become incapacitated is the HIPAA (Healthcare Insurance Portability and Accountability Act) form. This document governs private health care information. A signed HIPAA would allow loved ones’ access to health care information which would help them make better-informed decisions regarding health.

Wills and trusts are the documents that deal with what happens to your property after you die. Neiburger asks clients who are planning their estate to make a list of everything they own, its value, and how it is titled. There are 3 categories for how property is titled. One category is when there is a beneficiary on the account such as a life insurance policy, IRA or an annuity. A second category is joint tenancy or automatic passage which includes a checking account or home; the last person left alive gets the asset. A third category is anything that is not included in the first 2 categories and such items are considered probate assets. An example is a home with only 1 person’s name on the title.

Probate is the court procedure to pay the debts of the estate and to transfer title to whoever gets the estate. A will is the guidebook for probate. A will does not control anything that is under the beneficiary or joint tenancy categories. In Illinois, if there is no will, the state mandates that half of the estate goes to the spouse and half goes to the children, which is not ideal especially if there are minor children or previous spouses. Additionally, if an estate must go through probate, there are additional costs including court costs and bonds for insurance.

A way to avoid probate is to use a trust. A revocable living trust or inter vivos trust is written while you are alive. A trust can be compared to a bowl of candy. The trustee is the person who holds the bowl and hands out the candy and the beneficiary is the person who gets to eat the candy. What goes into the bowl or trust can be a home, insurance policies or IRAs; it is dependent on the particular situation.

In conclusion, Attorney Neiburger stresses the importance of caregivers building in rest and recovery to their schedules so that they can make good decisions for their loved one. Stress can impair caregiving and decision-making. The analogy of putting on your own oxygen mask in a flight emergency before you can assist a child with their oxygen mask is illustrative of how a caregiver can best care for a loved one. If the caregiver is not at their best, they cannot do their best for their loved one.