How to Handle Incapacity and Your Affaires

John Ross and Lisa Shoalmire Radio , , , , , , , , , ,
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Elder Law Attorneys, John and Lisa, discuss how to handle your affairs if you are incapacitated. Such as not being able to grasp the nature of the business that you’re doing. Some examples include losing the ability to balance your checkbook or not being capable to pay your bills on time.

John

Welcome to aging inside everybody. I'm your host John Ross, here, live in the studio with Lisa Shoalmire, and you're watching "Aging Insight," the single best program related to issues on health, housing, finance, and legal stuff related to, you know, getting older. Basically planning for and living in retirement, protecting your assets, maintaining your independence, not being a burden on your family, all of those things we know that you've got concerns about, we know that there are solutions to, and we know that you need the information that we've got to get you there.

Lisa

That's right. And that's why we like to come into your home through this program on "Aging Insight," that way, you can catch this information from the comfort of your home, and maybe learn a thing or two and pass it along to a friend, but it is our passion to get this information out to you. And, you know, John, we all hope that we need this information in the sense that I hope someday to become older and a senior and a retiree.

John

Sure.

Lisa

But, you know, there's an old saying that I heard my grandfather always say, and he said, "There's nothing for sure but death and taxes."

John

Well, that's true.

Lisa

Okay. Well, I'm gonna amend that saying a little bit today, "There's nothing for sure, but death, taxes, and government busybody wanting to know about what's going on in your life." How's that?

John

I'd say that's the modern equivalent.

Lisa

Right.

John

It certainly is.

Lisa

So, you know, when…and John, our practice, our Elder Law practice is based in the Texas-Arkansas area, and, you know, the Texas Legislature, the governing body that passes laws for the state of Texas, they only meet every other year.

John

Yep.

Lisa

And, you know, people in Texas say, "Thank goodness they only meet every other year and not every year because we'd have even more laws if they met every year."

John

Right. If you hire people to make laws, then they'd go down and make laws.

Lisa

Right. And so, our Texas Legislature has been busy at work, and there are some new laws that have come out that will impact our Texas viewers or also, you know, people who have loved ones who live in Texas. So today, we're going to talk about some of those new laws that really, I just don't have any other word for it than being a busybody.

John

Well, and what…even if you're not in the Texas area, you should be paying close attention because the rules that we're describing, although, as you will see, are quite strange and severe, they're actually mild compared to some of the rules in other states. And of the states that are less strict, guess which direction they're headed?

Lisa

Yes.

John

And so this information, although is somewhat Texas-specific, it really is related to everybody regardless of where you live because the one thing I can assure you is you don't want to find yourself at a courthouse when it could have been prevented.

Lisa

Right. So a lot of the rules and laws we're going to talk about today could be coming to a state near you...

Lisa

...as Well.

John

That's right,

John

And all of this relates to what happens if you become incapacitated and can no longer handle your own affairs.

John

Right.

John

And this could happen to anybody at any time.

Lisa

That's right. You know, so when we talk about incapacity to handle your affairs, you know, we're talking about, you know, not being able to grasp the nature of the business that you're doing. And that can come in a lot of forms, and it can come on gradually, you know, maybe you've lost the ability to balance your checkbook or you're just not able to get your bills paid on time or you've entered into some, you know, door-to-door salesman type contracts that on, when you were younger, and on a better day, you never would have entered into a contract like that.

John

Yep, and all of this comes back to a problem where medicine and law do not mix. The oil and water. And that's because, you know, if you talk about medically speaking, somebody might be…they might have the capacity to do some things...

John

...but lack the capacity to do the other, right? Maybe they can handle their own medicines, they can still vote in an election, they know who they want for president, they probably shouldn't be driving a car, right? So they have the capacity to do some, the capacity to do…and not to do others, that's medical. Medical is all grey.

Lisa

Right.

Lisa

Yes.

John

All grey. Law is very black and white. When a person turns age 18, they are legally competent.

Lisa

That's right.

John

Period. That's it. Even if you were in a coma on your 18th birthday, that very moment that you became 18, you are legally competent even though you are in a coma. And at that point, nobody has the power to do things on your behalf any longer.

Lisa

Right. Sign contracts on your behalf, sign medical consents on your behalf. When you're 18, no matter, you know, what your true level of competency or capacity is, the law says that that 18 is a magic number, and you are now considered an independent, capable adult.

John

And here's what I always get when I say that, Lisa, is I'm talking to somebody and oftentimes it's a man, maybe that's just an attitude, I don't know, I'm not saying, but oftentimes, it's a man and they'll say, "Yeah, but that's my wife. I can handle all her stuff."

Lisa

Right. You know, if something happens to her, that's my wife crosstalk 7:08.

John

Yeah. I mean, if it's my wife, I can do it, right? No. If you've ever tried to call the phone company and it's in your other spouse's name, you know for a fact that they say, "I'm sorry, we're gonna have to talk to him for a second," or, "We got to talk to her for a second," and you've gotta go and hand them the phone and that's because you're an adult, and if it's in your name, that's the only people they're gonna talk to.

Lisa

Right. So, we end up in a situation where we have an individual who doesn't have the ability to make business decisions and deal with money or property or manage their medications, but they're an adult so nobody can really tell them what to do or substitute their authority or judgment for this person.

John

No, most people don't. No question about it. Especially, if you're talking about everybody 18 and up. So this guardianship, that's what we're gonna be talking about and the rules that have changed to make this guardianship even worse than it already was, and so you're gonna have to stick around and catch the rest of the program if you want to find out more about that. We'll be right back.

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Lisa

Welcome back everyone to "Aging Insight." I'm Lisa Shoalmire here with John Ross, and today, we're talking about some laws that have already changed in Texas regarding guardianship and the way that courts will pick someone to handle your affairs if you are incapacitated, and have not executed a power of attorney. But the same type of laws have been very popular and we expect them to be implemented where, in many other states and some…you know, Texas was a little late to the party, they've already been implemented in several states.

John

That's exactly right.

Lisa

...and it's a time-consuming process. And, you know, did we say that you can avoid this with powers of attorney?

John

Yes.

Lisa

Okay, we did.

John

So let's start out with, basically, what this process looks like, right? So you've run into a wall, you're trying to do something for mom, for dad, for husband, for wife, for your own child, whatever it is, but you can't do it. And everybody you're seeing is saying, "Well, you've got to be the guardian. You got to get these letters of guardianship or some business like that." Well, the first thing you're gonna do is hire a lawyer. And this is not self-serving, we didn't make these rules.

Lisa

Yeah. No, we didn't lobby for them.

John

We didn't lobby for them, but the rules actually require that you have not just an attorney, but an attorney that is specifically certified to do guardianships in the state of Texas.

Lisa

Right. And so the attorney you hire must have already taken some classes and received a certification that they can handle guardianship cases. That's another new rule that came out a couple of years ago. So not every attorney can even handle a guardianship matter, but John, the very second thing you're gonna do as you are looking to apply to be a guardian is you're going to get online.

John

That's right.

Lisa

You're gonna get on your computer or your iPad, but you have to get online or someone has to help you get online because you're gonna have to submit all of your information and register with the judicial board that governs guardianships in the state of Texas. First thing you have to do before you can do anything else, you have to register.

John

That's right. Then you're gonna go ahead and get this application for guardianship filed...

Lisa

Oh, wait you forgot something, John.

John

What did I forget?

Lisa

Well, we gotta take a class.

John

Well, that's true.

Lisa

See, the new rules are so new, but once you get registered online, now you have to take an online class about what it means to be a guardian, and how, what things are going to be expected of you as a guardian, and you have to complete this online class and get a certificate of completion.

John

Well, you know, I think we have 2 clients in the office right now at 107, 4 or 5 more at a hundred or above, the oldest are 107, and a bunch in their 90s, more than I can count. And I would generally say, not true for everybody, but I would generally say that most of the ones, most of my 85, 90, 95, 100-year-old clients, not doing a lot of online coursework.

Lisa

Right. And from my experience, John, navigating the registration of the guardians and this online class is very clunky.

John

Yes.

Lisa

We have had, you know, folks call and just practically in tears because it just wasn't as easy as they thought it would be just because the websites are not very user-friendly, I don't think. Supposedly, they're gonna work on that. So we have these…so you got to get online to register, you got to get online to take a class, and now...

John

Yeah, now you can submit your paperwork. Of course, there's filing fees, and stuff like that associated with all of that, and the court's gonna hire another attorney, this is called an attorney ad litem, and their job now is to go out and investigate. So now you got two lawyers in your crosstalk 16:10.

Lisa

Right. And then, you know, furthermore, if you're needing to handle your loved one's business, you know, John, I think about these couples that have been married 45, 55, 60 years, okay? And one of them is now incapacitated and their spouse is needing to take over for their business to handle things. And John, under the new laws, under Texas, if the liquid estate, so that's cash, investments, retirement accounts, things like that. If the liquid estate being dealt with here is more than $70,000, then whoever the guardian's going to be, whether it's a spouse, a child, a neighbor, they have to get an FBI electronic fingerprinted background check.

John

It can take a while sometimes.

Lisa

So, you know, in these laws, John, I think they come from a good place in the sense that, you know, we want people who are honest and, you know, upright to be taking care of someone else's money, but I get really frustrated when I look at these couples that have been married forever and now a spouse who's been managing the money really, forever, now has to go get an FBI background check that can take up to three months to get back.

John

Yeah, and assuming you've gotten through all of this, and you've got the appropriate medical documentation, and the attorney ad litem that the court has pointed has looked at the situation and agrees with the guardianship, and you've gotten through all of this, then you could get to a hearing, and maybe at that point, you get appointed as the guardian, which is the start.

Lisa

Right. It's the start of your obligations to the court. So I guess, John ,let's take another break and we'll come back and talk about your further obligations to the court, and how those laws have changed, and maybe by the end of our show today, everyone will have a very clear understanding of why powers of attorney are so important. So we'll be right back.

John

Welcome back to "Aging Insight" everybody for our last segment here on the show. Today, we're talking about guardianship and you're trying to help out your husband or your wife, your mom, your dad, you don't have any powers of attorney in place, and so now you're stuck going through this court-guardianship process.

Lisa

Right. You've finally been appointed as the guardian. But that is not the end of your obligation because now, the care and supervision that you're providing to your loved one or the ward is, it involves you, the ward who needs your assistance, and it involves the judge of the court that you got appointed as guardian from.

John

No. So you should be getting the idea that this is a giant pain in the rear. What you're seeing in other states that have had these kinds of very strict rules, places like Nevada, for example, is you end up with professional guardians, people who go through all of this and then that becomes their job. They do this for a living because no ordinary person can navigate through this, so you end up with professional people, and guess what's happening? Those professional people are becoming the abusers.

John

They're financially exploiting these elderly people. Now, not all of them, but the ones that are hitting the news, certainly are.

Lisa

Right. And when we say...

Lisa

Right.

John

And so, unfortunately, that's…you know, it's almost one way or the other, without all these regulations, you have financial exploitation by every fool around because they can go and have you declared incompetent with nothing. They pass all these rules to make that sort of thing more difficult, but what they make it difficult for is the good actors.

Lisa

Right. Your loving family, it's so difficult and burdensome to be able to become a guardian that they just can't get it done in time to meet the need for their loved one, and so these professional guardians, and I use that term loosely, they've already been through these processes, and they have been designated by the state that they can serve as a guardian for anyone.

John

That's right. So keep yourself out of the courthouse, right? You do that for incapacity with making sure you have really good powers of attorney: financial, medical, those sorts of things are the keys to keeping you out of the guardianship process. And notice I say good ones, this is not the time to go pulling stuff off the internet, it would be like trying to figure out how to do surgery on yourself.

Lisa

So I think we're pretty clear today.

John

I think we are.

Lisa

Get some powers of attorney, avoid guardianship. So I hope you feel like you've learned a little something from "Aging Insight" today. You know, we're not here to scare you, we're just here to give you that information so that you have the tools, and you are armed with information, so that you can retire, and you can plan for yourself with peace of mind.

John

Bye.

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