Estate planning documents can be difficult no matter what approach you take. It can be awkward, emotional, and/or dreadful.   What most people do not realize is that is can also save a lot of future stress for yourself and family members. Here is a list of tips for discussing estate planning with your family members:

1. Plan what you can

Create a list of topics and questions you want to discuss. Learn about the different documents so you can educate your family about them in simplistic, respectful terms. Come up with a unified message/plan so confusion can be prevented. Having options are helpful.

• Choose the right setting

Get the family involved and find a comfortable, private place.  Make sure everyone is on the same page prior to meeting.

• Identify key people

Gather a list of people you may need to contact for estate planning purposes. Ex: family members, attorney, doctor, insurance brokers, etc.

• Use conversation starters to ease into the subject

Start with casual conversations, and then build to bigger, more decision-focused conversations. Be natural and empathetic.

• Don’t pressure!

Allow them to lead the conversation.  Let them tell you what they want and what their wishes are. Instead of telling them what they need to do, frame it as a problem on your mind.

• Be patient and calm!

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What is Guardianship?

Guardianship is a legal process in which a person becomes the legal guardian of another person to act in their best interest when they cannot make decisions for themselves. In other words, when an elder loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to Alzheimer’s disease, stroke, brain injury, or other mental or health illnesses.

Who Can Be Appointed As a Guardian?

The Court decides who is the best suited to serve as Guardian. The person chosen can be appointed to handle certain health, safety, and management decisions. There are cases where multiple guardians are appointed to serve as a guardian in different areas.

What Responsibilities Does a Guardian Have?

Once a guardian is appointed, they are responsible for making important choices with the individual’s best interests in mind. They are expected to manage the person’s affairs in an honest manner. Most importantly, they want to keep the individual safe and healthy. Guardians are expected to report to the Court at least once a year. Other responsibilities for a guardian may include:

1. Monitoring their residence;
2. Providing consent for medical treatment;
3. Deciding how finances are handled;
4. Paying bills;
5. Releasing confidential information;
6. Keeping records of all expenditures;
7. Making end-of-life care decisions;
8. Managing real estate or other personal property

Guardians During COVID-19:

It is essential for guardians to keep contact with the person they are responsible for, especially during the pandemic. While it is difficult to keep contact due to social distancing protocols, here are some ways to stay connected:

1. Outdoor or window visits
2. Remote technology
3. Keep constant contact with social workers, nurses, and other care providers who are with the individual 

Benefits of Hiring an Attorney to Assist With Guardianship:

1. To help you prepare the initial petition
2. To inform you about guardianship laws as it may get complicated
3. To provide guidance regarding Fiduciary obligations
4. To assist you throughout the entire guardianship process

We are dedicated to easing the guardianship process for our clients at Hynes Law Group. We can help you navigate through the complex court procedures. Contact us to set up a free consultation to discuss your situation with us!

You can contact us at 908-514-8008, info@hyneselderlaw.com, or fill out our contact form on www.hyneselderlaw.com!

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What is a Power of Attorney?

A Power of Attorney is a legal document appointing an individual or individuals to act on behalf of yourself in a financial, business, or other related matter. The purpose of a Power of Attorney is to protect yourself from incapacity.  As such, it is encouraged that you appoint in a trusted family/friend to act in your best interest if you are unable to act.

Getting a Power of Attorney is extremely useful in assisting older adults who may be less mobile and do not feel confident in the decision making process. In addition, it is useful in the event of an emergency or other unexpected circumstances that reduce the ability to make their own decisions.

Importance of choosing the right agent for your Power of Attorney:

As useful as a Power of Attorney is, they are extremely powerful tools that must be taken seriously. Power of Attorneys can be seriously abused if the power is placed into the hands of the wrong individuals. Unfortunately, Power of Attorney abuse is a real problem and occurs when the agent takes advantage of his or her position. Often, the agent makes decisions on the principal’s behalf that benefit the agent or others without the principal’s knowledge or consent. It is important that you have no doubt that the person you appoint will perform honorably in any areas for which you give them the authority. You must trust them. If you don’t have an agent you trust, your attorney can help you find one.

Consider the following when choosing an agent for your Power of Attorney:

1. Do you trust this person with your important legal affairs?
2. Is this person financially responsible with their own financial and legal affairs?
3. How far does this person live from you? Your agent may need to get to the hospital or care center quickly in an emergency.
4. Have you discussed your decision with this person?
5. Will this person be able to communicate your wishes clearly and effectively?
6. Will this person charge you a fee? Family members usually perform the service for free. If you pick a lawyer or accountant, a fee is usually involved.

How to get started on your Estate Plan:

Here at Hynes Law Group, we are dedicated to helping you plan for all ages and stages.  To discuss a Power of Attorney or other estate planning, please call us at 908-514-8008, email us at info@hyneselderlaw.com, or fill out our online contact form at www.hyneselderlaw.com. Your first consultation is free!

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Today, technology has taken over the world. Many people communicate with their loved ones over social media, order their groceries and clothing online, and even use telework and telehealth. The global pandemic has heightened this to an extreme. While there are definitely many positives to this movement, such as constant communication and ability to get necessities on the spot, we seem to forget that there are many people, especially older adults that have minimal access to reliable, high-speed internet. The fact that nearly everything has gone virtual has led to many consequences for these individuals that some people may call it a “double pandemic.”

According to the American Bar Association, around 31 million Americans, including many older adults, do not have access to a high-speed internet service. In terms of health, most seniors are cut off from their guardians, caregivers, nurses, and doctors because they rely on virtual meetings during COVID-19. For seniors this means: no internet service leads to minimal assistance. Even worse, not having internet service means separation from the outside world, which is not good for the overall health and well-being of older adults. The rise in loneliness must not be ignored. Keeping a physical distance during COVID-19 is a must, but loneliness also affects our lifespan.

As we approach month seven in quarantine it is so important for family members to check in and create some sort of connection for older adults. Whether this means opening doors to a fast-speed internet where the opportunity to connect with others is available through media and virtual healthcare services, or to having socially distanced communication, it is crucial to embrace social connection.

The following are additional ways to build connectedness during a global pandemic (family members and caregivers should help older adults install the virtual applications as needed):

1. Video chat applications to connect with friends and family (Zoom, Skype, FaceTime, Google Hangouts, etc.)
2. Connect through Facebook and other social media platforms
3. Old fashion phone calls
4. Write in a journal about your experiences, feelings, thoughts during social distancing to appreciate and look back at in the future
5. Virtual yoga and other interactive movement classes
6. Mindfulness applications that include exercises, recorded talks, and other activities

The post The Importance for Older Adults to Stay Connected During the COVID-19 Crisis appeared first on Hynes Law Group.

To say the very least, 2020 has created more obstacles than we ever envisioned dealing with all at once. The threats to life and finances due to the COVID-19 crisis makes creating and/or reevaluating estate planning documents even more important. At Hynes Law Group, we are working hard to make these daunting discussions easier for your family by offering guidance.  As the pandemic continues, people are encouraged to revisit their documents in light of current circumstances. 

COVID-19 has created a sense of urgency for elder law planning to secure safety parameters for people of all ages. The inability to meet in close proximity has made it inevitable for estate planning documents to enter the digital world. The legal requirement for witnesses and notaries to be present during signings has been around for centuries. Laws that prohibit the creation and executions of wills or testamentary trusts to have digital signatures have also been in place. However, COVID-19 has made a digital movement necessary. The unthinkable has become the new normal.

On April 14, New Jersey Gov. Phil Murphy signed into law Assembly Bill 3903, temporarily allowing remote notarization of documents. Additionally, according to the American Bar Association, due to COVID-19, federal courts have recognized safety concerns that lead towards video conferencing being an appropriate means to ensure “presence.” United States v. Baker, 45 F.3d 837, 847 (4th Cir. 1995) (holding that videoconferencing constitutes sufficient “presence” where “safety concerns inherent in transporting a potential mentally unstable person…are substantially alleviated by the use of the video conferencing procedure.”) 

As an Elder Law attorney, one of the most special aspects of the job is maintaining close contact with my clients.  I see my clients as my family.  Not being able to have frequent face-to-face visits has been quite a challenge to get used to. Luckily having remote communication and occasional distanced porch meetings have allowed us to check in with clients and continue serving our community in creative ways. 

At Hynes Law Group, we are dedicated to ensuring our clients feel satisfied regardless of the events taking place in the world.  We offer free “virtual” consults to all clients who need assistance and have made arrangements to allow for any in-person contact to be distanced and safe.

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Beginning on February 1, 2018, Hynes Law Group, LLC, will accept digital tokens towards payment of its legal fees, subject to standard commercial and legal practices.  Given the rapid growth of blockchain technology and Hynes Law Group’s goal to provide innovative services to its clients, accepting digital tokens towards payment of our legal fees is a natural progression for our firm.

The first digital tokens to be accepted with be XRP (Ripple), Bitcoin, and Ethereum.

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Case Law Update: In the Matter of the Will of E. Warren Bradway, 2018 WL 3097060 (App. Div. 2018), the Appellate Court recently affirmed a lower court judgment that a Handwritten Will, written entirely in the blood of the Decedent, was a valid Will for probate under N.J.S.A. 3B:3-3.

What this means: Handwritten Wills, often called Holographic Wills in New Jersey, can be valid even if written in the Decedent’s blood so long as they meet the statutory requirement regarding content and other proofs are provided (blood analysis, etc.).  This is further evidence that New Jersey has laxed legal formalities when it comes to the validity of Wills drafted outside of the assistance of an attorney, and outside of traditional statutory requirements.

It is important to note, however, that to probate the handwritten document in the above-referenced case, there were likely massive attorney’s fees involved over the two (2) years pendency of the litigation.  The person pursuing probate of the “Blood Will” had to hire an attorney to file a “Complaint” with the Court, and then further had to pay an attorney to defend her position in Appellate Court.  Further, it is likely that the estate of the Deceased had to pay the fees of the contesting attorney as well.  I can say with certainty that it would have been much cheaper just to hire an attorney to draft a valid Will while the Decedent was alive.

So, the moral of the story is: while New Jersey may accept Handwritten Wills, even in the case they were written in an individual’s blood, the trouble they cause is not worth the thrill or excitement that one may feel in doing so.  It is further not recommended for health reasons for one to use their own blood as ink on a Will or any other document.

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A question that I have been asked a lot recently by parents who have children with special needs is: is an ABLE Account or a Special Needs Trust the right planning solution for me.  The answer is always dependent on the circumstances.  In order to make the right determination for you, it is important to understand both, and dissect the common pros and cons of both options.

ABLE Account

Able accounts are accounts with tax-advantaged savings (similar to a 529 plan) for individuals with disabilities with an age of onset before turning 26 years of age.  They were created as a result of the passage of the “Achieving a Better Life Experience Act” of 2014, which was then signed into law in NJ by then Governor Chris Christie in 2016.  Each disabled individual may only have one ABLE account, and that account has a contribution limit of $15,000.00 per year (to be adjusted with the gift-tax exclusion) and a resource limit of $100,000.00 (i.e. all funds exceeding $100,000.00 will be counted as an asset to the disabled individual).  These accounts can be used for “qualified disability expenses” which are expenses related to the disability or for the benefit of the individual with the disability, including: education, housing, transportation, employment training, health, prevention and wellness, funeral and burial, and basic living expenses, etc.  Upon the death of the disabled beneficiary, funds remaining in the ABLE account must first be used to reimburse the state for medical assistance benefits received (i.e. monies paid by Medicaid).

Special Needs Trust

There are three main types of Special Needs Trusts:

1. A First-Party Trust is most often established under 42 U.S.C. §1396p(d)(4)(A), and is referred to as a “(d)(4)(A) Trust.” This type of trust is established with the assets of the person with a disability. There are specific state and federal criteria that must be followed, and if drafted incorrectly, will affect eligibility. For example, these trusts must have a payback provision, meaning that on the death of the individual, assets remaining in the trust must be used to pay back to the state for benefits paid on his or her behalf.
2. A Third-Party Special Needs Trust is created with the assets of another individual. These trusts are funded with the assets of a third party for the benefit of the individual. Typically, you see these trusts established by the parents of the beneficiary. Having a third-party trust available allows family members to provide for the beneficiary in their respective wills without leaving money outright. Unlike the First-Party Trust, traditional Third-Part Trusts do not have a payback provision. The exception to this rule is when a Third-Party trust is established so that the grantor can obtain Medicaid benefits him or herself. This type of trust referred to as a Sole Benefit Trust has its own state and federal criteria that must be followed.
3. A Pooled Trust is one that is administered by a nonprofit organization, such as PLAN/NJ. Pooled Trusts are a way to provide the advantages of a Special Needs Trust without having to actually establish a separate trust. Assets are placed in sub-accounts within the pooled trust to be used for the named individual but pooled together for investment purposes.

Some Pros and Cons of ABLE Accounts v. Special Needs Trusts (SNT)

Pro:  A disabled individual may establish their own ABLE Account or First-Party SNT with their own money.

Con: ABLE accounts can only be established by individuals who became disabled before the age of 26, while age does not matter in the case of SNT’s.

Pro:  A disabled individual can manage their own ABLE funds and access them when necessary, which they cannot do with any type of SNT.

Con:  Trustees of an SNT can ensure that funds are being spent properly and for the benefit of the disabled individual.

Pro:  Funds in an ABLE account can grow tax-free, while funds in an SNT will be taxed if there is enough income.

Con:  ABLE accounts are limited to annual contributions of $15,000.00 (with a maximum balance of $100,000.00), while SNT’s have no limit.

Pro:  ABLE accounts are easy to establish and carry minimal fees as opposed to SNT’s, which can be expensive.

Con:  If a third party leaves money to an ABLE account, that money will go to reimburse the state first after the individual passes.  If a third-party puts money into a third-party SNT, the state will not be reimbursed from the remaining funds.

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I’ve been seeing it a lot lately:  A loved one passes away never having signed a Last Will and Testament (shame!), but among his or her personal effects a handwritten document is found.  On the face of this document either some or all of said loved ones possessions are devised.

The good news is, your family may be in luck!  New Jersey recognizes two ways for wills that are not executed properly to be probated: 1) as a Holographic Will under N.J.S.A. 3B:3-2(b), or 2) as a Writing Intended as a Will under N.J.S.A. 3B:3-3.

First, what is required for a Last Will and Testament to be executed properly?  N.J.S.A. 3B:3-2 spells it out in detail.  A will must be: 1) In writing; 2) signed by the testator (deceased person) or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and, 3) signed by at least two individuals (witnesses), each of whom signed within a reasonable time after each witnessed the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will.  In addition, a Last Will and Testament should be made self-proving.  The requirements for same are set out in N.J.S.A. 3B:3-4.

Just as a note, before I go into a detailed analysis of handwritten wills, it is important to note that these types of documents are never recommended!  While you may think that by doing so you will be avoiding attorney’s fees, handwritten wills, unlike formally executed wills, must be submitted to the Superior Court for review.  This process includes an attorney preparing and filing a Verified Complaint seeking to probate the handwritten will for the review of a Judge.  Generally speaking, this costs more than an entire estate planning package does (Wills, Powers of Attorney, and Health Care Proxies)!  To top it off, there is no guarantee that the Judge will accept the handwritten will.

Now onto the ways to probate a deviant Last Will and Testament:

1)       Holographic Will under N.J.S.A. 3B:3-2:  When a will does not meet the formalities above, it may still be probated if the signature and material portions of the document are in the testator’s handwriting.  You often see this scenario play out in what we call a “Deathbed Will.”  In this example, a loved one is one their deathbed and pens a handwritten will and signs it in hopes that it is effectively treated as a Last Will and Testament.

2)      Writing Intended as a Will under N.J.S.A.3B:3-3:  You see this type of Will when dealing with a handwritten document that does not meet what is carved out as a “Holographic Will” in the statute.  For example, a common scenario is where someone handwrites a will but forgets to sign it.  Another common scenario is where a lawyer formally prepares a Will, but someone passes away before signing same.

The analysis of a Writing Intended as a Will is far more convoluted than the analysis of a  Holographic Will.  The statute states that the proponent of the document (person attempting to probate it) must establish by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s will, a partial or complete revocation of an old will, an addition to or alteration of the will, or a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.  Court cases have clarified this to mean that there must be a showing of clear and convincing evidence that: 1) the decedent actually reviewed the document in question; 2) the decedent thereafter gave his or her final assent to it; and, 3) the decedent intended the document to serve as his or her will or an addition or alteration thereof.

If a loved one has passed away leaving a handwritten will, it is extremely important that you get legal advice immediately!  There have been many cases looking into what qualifies as a Holographic Will or a Writing Intended as a Will, so it is extremely important that you see an attorney who has experience in dealing with same.

The Estate Administration and Probate process is difficult enough without this additional “monkey wrench” thrown into the picture.  For a free consult, please call Hynes Law Group at 908-514-8008, or email Jesse at Jesse@Hyneselderlaw.com.

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We are extremely pleased to announce that our founding attorney, Jesse R. Hynes, Esq., has been selected by the American Institute of Legal Counsel as one of the “10 Best” Estate Planning Attorneys in New Jersey by Client Satisfaction.  To qualify, an attorney must have: 1. Been formally nominated by the Institute, clients, and/or a fellow attorney; 2. Have attained the highest degree of professional achievement in his or her field of law; and, 3.  Have an impeccable Client Satisfaction rating.

Jesse was additionally recently selected by Thomson Reuters as a Rising Star in its 2018 Super Lawyers list.  To qualify, an attorney must have: 1. Been nominated by peers; 2. Evaluated by Thomson Reuters by independent research; 3. Evaluated by Peers within their primary practice area, and; 4. Make it through a final selection process.  Approximately 2.5% of attorneys are selected as Rising Stars.

Quote from Jesse R. Hynes, Esq.: ” I am extremely proud and honored to have been selected as a ’10 Best Attorney’ and ‘Rising Star.’  I could not have gotten where I am today without my family, friends, and god.  I am blessed to have such an incredibly amazing support system.  Every day I strive to make a difference in people’s lives, and am truly grateful to have the opportunity to help people to plan for life’s important stages.”

The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process_detail.html.  The “10 Best Attorney” list is issued by the American Institute of Legal Counsel.  A description of the selection methodology can be found at http://ailegalcounsel.org/selection/.

No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

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