by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

Sometimes a power of attorney is not the best way to insure that someone you choose will be ready to help you when you need it.

In these situations a better choice may be to set up a trust.

A trust can have, built into it, helpers who are able to help you when you are unable to visit the bank on your own. The helpers named in a trust are known as trustees. The trustees you choose are much more able to assist you than the agent in a power of attorney.

You can be the trustee of your own trust. The successor trustees you pick are ready to help you when you need it.

Banks and brokerage firms do not get in the way of successor trustees in the same way they do with agents under powers of attorney

Technorati Tags: chicago suburbs, elder attorney, elder law, estate planning, power of attorney, south suburbs

by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

There are several important questions to consider when deciding whether the person you are considering is a good pick to be the agent under your power of attorney.

1. Will they do what I want them to do? If they will not carry out your wishes then do not pick them even if you may hurt their feelings.

2. Will they have the strength to do what needs to be done? If they are not able to deal with tough questions and tough people who will try to sway their minds then do not pick them.

3. Are they good with money? If they can not balance their own checkbook they are not likely to balance yours. If they do not keep good records then they will get themselves into trouble when they lose track of your money.

4. Will they consider the job to be a burden? If they look at this as a burden then they will not pay enough attention to your finances.

5. Will they give in to outside influences? If the porson you pick is married to someone you do not want involved in your affairs then do not pick them. You do not want them to choose between their duty to you and their spouse.

6. What happens when the person you pick becomes ill themselves? You must pick a back-up agent to serve if your first choice is not available.

If you have no one who fits all the requirements then you still have an option.

Pick the person who is closest to the ideal then pair them with a professional.

A trust company can lend expert advice to the person you believe has your best interest at heart. When a family works with a professional trustee they have the perfect reason defense against people who would ask them to do the wrong thing. “The trust company is in charge of that”, is the easy way for them to get out of tight situations.

In any case we recommend that a trust company be named as a back-up agent against the day when the person you have named is unable to perform the task.

by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

Technorati Tags: chicago suburbs, elder attorney, elder law, estate planning, power of attorney, south suburbs, trust company

by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

At one time a power of attorney and a will were all the estate plan that most people needed. Today this no longer true.

Back in the 1990’s part of the federal government made a new rule that resulted in powers of attorney which are more than 90 days old to not be honored by brokerage firms, mutual fund companies, and most recently by banks.

There is no law that says a bank or other financial company can ignore or refuse to take your power of attorney. They still often refuse to allow the use of an old power of attorney document. These financial institutions would like your chosen agent to go to court. They would like a judge to tell them that they must follow the instructions of your agent.

If this happens and they make a mistake or the power of attorney was revoked in the past then the financial institution is off the hook.

All of this makes a financial power of attorney less helpful than it once was.

I still recommend that everyone have a power of attorney but it can no longer be relied upon as the centerpiece of your estate plan

By Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com 773-905-1193

Technorati Tags: chicago suburbs, elder attorney, elder law, estate planning, power of attorney, south suburbs

Power of Attorney describes a relationship between two people. The first person (we will call him “Tom”) thinks there may come a time when he will not be able to handle his own affairs. He may think that he will become ill or that he will be out of the country, such as while he is in military service, he may be on vacation for a period or time or he may simply have some things coming up which he would rather have someone else handle for him.

If Tom wants someone else to be ready to stand in his place and take care of important matters for him he may name a trusted friend, relative, or attorney to take care of business for him.

Tom has a friend who we will call her Sue. Tom can name Sue as his agent to take care of his business at the bank. When this is done Sue is said to have “power of attorney” for Tom. Sue is now authorized to act on the behalf of Tom. Sue will have papers with him to show that Tom has asked him to help.

These papers are known as a Power of Attorney. The papers are evidence that Tom trusts Sue to help him with his business matters.

Sue must be careful with the money and assets of Tom and Sue must never use Tom’s money for Sue’s benefit. Sue is a trusted person which is known as a fiduciary. As a fiduciary Sue must do only what is best for Tom.

Sue can get paid for being an agent. The fees must be reasonable but Sue can be paid for her efforts.

Powers of attorney differ in when the power starts. Sue can get her power right when the paper is signed or after Tom’s doctor says he is ill enough to need help.

Powers of attorney are also differ in when the power ends. the power of attorney papers show that the authority expires at a certain future date such as after Sue has finished selling Tom’s car.

The authority under some power of attorney papers can end when Tom becomes unable to speak for himself.

If a power of attorney grants authority which lasts beyond any disability Tom may have in the future is called a ‘durable’ power of attorney. It is said to be durable because it lasts through the disability.

In any case all powers of attorney end with the death of Tom. No authority lasts after Tom has died.

Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com

Technorati Tags: chicago suburbs, elder attorney, elder law, estate planning, power of attorney, south suburbs

The information in this website is accurate to the best of my knowledge. It reflects the laws in the State of Illinois at the time the pages were written. Every effort has been made to make them readable and understandable to non-lawyers because of this they are necessarily general in nature.

Visiting this website does not create a lawyer-client relationship. The only way to become a client is for us to meet personally and discuss whether I am the right lawyer to work with you on your plans for the future. I also need to satisfy myself that your interests do not conflict with my duty to any of my existing clients. This sort of planning and analysis is not easily done by email or by phone.

The information in this site is designed to get you started on the planning process. You should always check with a lawyer before signing any legal documents. Any sample forms found on this sight are for reference only since I can not control how they are completed nor how they are executed.

I am licensed to practice law in Illinois. There are important differences between Illinois laws and those of other states. If you are a resident of another state please consult an attorney licensed to practice law in your home state. If you are not currently working with a lawyer you may want to call your state bar association.

Circular 230 Disclosure: Content of this message cannot be used to avoid IRS tax penalties. For more information go to http://www.cbo.gov/ftpdocs/65xx/doc6512/07-06-EstateTax.pdf

by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

The first President Bush, George H. Bush, signed the Americans With Disabilities Act (ADA) into law in 1990 and now George W. Bush is set to sign the ADA Amendments Act.

The new law straightens out the mess that has been made of the original Law by clarifying what is a protected disability and who needs to make accommodations for people with disabilities. The Amendment reaffirms our commitment as a nation to including people with disabilities in mainstream life.

During the years since the ADA was passed state court decisions have limited the protections of the ADA. State court rulings have effectively excluded people with disabilities from many activities which should be covered under ADA protections.

Groups which champion the rights of those with disabilities have worked long and hard with law makers to rebuild and strengthen protections for those with special needs and for their families.

The new law will contain a more clear definition of what it means to be disabled and who is protected under the ADA. It also does away with, or overturns, some state court rulings that denied ADA protection for some people with disabilities. The law makers who sponsored of the amendment say, it “…fulfills our promise to tear down the barriers of ignorance….”

I see this amendment as the next logical step in the process of fully embracing people with special needs into full membership in our society. Parents of children with disabilities will find it easier to take the entire family out to dinner.

The doors are opening and everyone is invited in.

Technorati Tags: ADA, Disability, disability trust, estate attorney, estate planning chicago

Report by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

A new report on the abuse of Power of Attorney has been published by the American Bar Association Commission on Law and Aging.

The author, Lori A. Stiegel, explains that there are times when seeking help from a single public agency is not enough. At times help must come from a variety of agencies.

Stiegel uses the example of an aged woman who is taken advantage of by a family member. The story that is told is all to familiar to law enforcement and to attorneys working with older people.

“Victims of durable power of attorney (DPA) abuse or their family members often need help from the adult protective services, civil justice, or criminal justice systems to stop further abuse by the agent and to recover money, property, or other assets from the agent. But sometimes, as in the case example below, victims are sent from one system to another and don’t get the help they need.

The purpose of the report is to inform families of the proper steps to take when the Agent under a Power of Attorney is suspected of abusing their position. The report “informs consumers about DPA [Durable Power of Attorney] abuse and what each system [public service agency] can do to help victims.”

The report is an excellent introduction to the potential pitfals involved in the improper use of Power of Attorney.

I recommend that you download a copy from the ABA website at: http://www.abanet.org/aging/about/pdfs/durable_poa_abuse_fact_sheet_consumers.pd

Technorati Tags: estate attorney, estate planning, estate planning chicago suburbs, last will and testament, living trust

In each of these situations it is your signature which marks that the sale has taken place.

If you wish to give assets to someone after your death something different has to happen. Since you can not sign after you have died, someone’s signature must be substituted in place of yours.

The judge, in probate court, substitutes his or her signature in place of yours. This way any money and property, which was in your name when you died, can get into the hands of the new owner.

This is one of the main purposes of the probate court.

The process is more complicated than I have described but when you boil it down, we are getting stuff out of your name and into the name of the people you let it to in your will.

There is nothing wrong with the process. Probate allows for the orderly passing of assets from generation to generation.

The reasons which most people give for wanting to avoid probate can be boiled down to these:

1. Probate takes too long. Probate generally takes between 1 and 2 years. During the process the family must relive the death of their loved one with each new letter and each meeting with the executor. If the process can be made shorter then the family will be able to come to closure more quickly.

2. Probate costs too much. The fees for Probate in Illinois can average around 5% of the estate. With home values over $300,000, in many cases, it is easy to see why people would like more of their money to go to their children and less to court costs and fees.

3. Probate is not private. The courts are public and so are most court records. Many people I talk with keep their financial matters private during their lives and tell me that they would like to keep their information private even after their deaths. It makes sense, then, to stay keep the estate distribution process private. This can be done by staying out of court.

Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com

Technorati Tags: Avoid Probate, chicago suburbs, elder attorney, estate attorney, livng trust, power of attorney, power of attorney Chicago suburbs