Pets - More Than Companions to Seniors

In an odd bit of news re elder care, a cat that offers comfort to nursing home patients in their final hours. While it is a touching story, it highlights for me how many seniors die alone, and how many have pets that are their constant companions in later life that will need continuing care and provisions when their owner passes away.

Cat plays furry grim reaper at nursing home: "PROVIDENCE, R.I. - Oscar the cat seems to have an uncanny knack for predicting when nursing home patients are going to die, by curling up next to them during their final hours." Click here for full article.

Many seniors are truly worried about what will happen to their feline and canine and other companions if they are no longer able to take care of them. A client may have adult children, grandchildren and even great-grandchildren who are settled and secure, but when they come to see me, they have stress about providing for the loved one in their life who can't provide for themselves. A couple of thoughts:

Put practicality first. Make sure people know you have a pet, and arrange for a family member or friend to agree to be responsible for "emergency care" if you fall ill. This person needs to be able to get to the pet (has keys to the house) and be aware of the pets needs.

Arrange for long term care for your pet in your Will. This can take a variety of forms, such as a direction as to who gets the pets, matched with a monetary bequest or not, or a pet trust, or making arrangements with a company that provides care for pets for the balanace of their lives when their owners have died.

A Practical Approach to a Power of Attorney

I always tell clients that just having a General Durable Power of Attorney is not enough - you need to have a broad and flexible General Durable Power of Attorney that will aid your attorney in fact, not hinder them. Remember that this will need to be used to make financial decisions for you, when you cannot otherwise make them for yourself. This is not the time to be entering into a debate about what limitations you might have been intending - make limitations clear, or not at all.

In a recent blog posting Make Your Durable Power of Attorney Work, Elder Law Answers echos this point in discussing the practical elements of a General Durable Power of Attorney. Some key points below:

An essential part of any estate plan is the durable power of attorney, through which you appoint someone else to handle your financial and legal issues in the event you are unable to do so because of illness, disability or incapacity. The problem with these documents is that not all financial institutions accept them all the time, and it's hard to predict which will and which won't ahead of time.

Why won't your bank or investment house accept your validly executed power of attorney? Because they are worried about liability in the event:

* The document in fact was forged.
* You had revoked the power of attorney before its use.
* The person you appoint exceeds the powers you gave him in the power of attorney.

In any of these cases, the financial institution may be held liable for any losses you incur. On the other hand, it may also be held liable for losses you incur if it unreasonably refuses to honor your power of attorney.

So, what can you and your estate planning attorney do to make it more likely that your appointment of an agent will be accepted? This question is answered by Daniel A. Wentworth, Esq., Senior Legal Counsel with Fidelity Investments in the November/December 2003 issue of the American Bar Association's Probate & Property journal. Attorney Wentworth recommends taking the following steps:
* Grant general powers in the document so that there is no risk the agent exceeds her authority.
* Also include specific powers clearly authorizing the actions the agent is likely going to need to take.
* Don't use "springing" powers of attorney that don't go into effect until you are incapacitated or, if you do, be very clear about what triggers their effectiveness.
* If you're appointing more than one person, clearly permit them to act separately (unless you really don't want them to).
* Sign several originals so that they are available for different financial
institutions to review.
* Sign a new power of attorney every few years so that there's less likelihood that it may have been revoked and there's a long-term record of your desire to appoint your particular agent.
* If available, also sign any powers of attorney form offered by the financial institutions in which you have funds.

To read the Probate & Property article, go to: http://www.abanet.org/rppt/publications/magazine/2003/nd/wentworth.html

Charitable Deduction Denied - Single Trust has Charities and Non-Charities as Beneficiaries

Category: Estate Planning, Estate and Inheritance Tax,

The U.S. Court of Appeals for the Third Circuit (which controls District Court decisions in New Jersey) finds that the Internal Revenue Code prohibits an estate from claiming a charitable deduction when the proceeds of a single trust are distributed to both charitable and non-charitable beneficiaries. Galloway v. U.S. (3rd Cir. 6-21-2007), No. 06-3007.

James Galloway created a single trust under which the beneficiaries -- his two children and two charitable entities -- would receive an equal, one-quarter share in the proceeds. Upon Mr. Galloway’s death, the Pennsylvania Department of Revenue determined that $399,079.33 would be distributed to charitable entities.

Before reading on, some better solutions to meet Mr. Galloway's goals might have been have been:

• Flat amount bequest to chartity
• Percentage bequest to charity before transferign the balance to a trust (ie - make the division to the charities and then directe that the amoun to the children go in a trust)
• Set up a Charitable Remainder Trust or Charitable Lead Trust, which are statuorially authortized divisions of bequests between a charity and one or more induviduals
• Name the charity as a beneficiary on a non-probate asset such as an IRA or other retirement plan

The trustee of the estate, Edmond Galloway, then claimed a charitable deduction in that amount on the federal estate tax return. Based on Internal Revenue Code § 2055(e), the IRS disallowed this charitable deduction and computed the estate’s liability to be $306,604.57. Mr. Galloway paid the additional tax due and then filed a refund claim, which was denied by the IRS.

Mr. Galloway filed a complaint in the U.S. District Court for the Western District of Pennsylvania claiming that the trust did not fall under the purview of IRC § 2055(e). Mr. Galloway argued that the only kind of such “split-interest” trusts that Congress intended § 2055(e) to cover are trusts in which a non-charitable beneficiary has a life interest and the charitable beneficiary has a remainder interest. The complaint was denied and Mr. Galloway appealed.
The U.S. Court of Appeals, Third Circuit, affirms and holds that the clear, unambiguous language of IRC § 2055(e) disallows any charitable deduction where an interest in the same property passes to both charitable and non-charitable beneficiaries.

To download the full text of this decision in PDF format, go to: http://www.ca3.uscourts.gov/opinarch/063007p.pdf .