(Legal-Ease - Photo Illustration - MetroCreativeConnection)

Last month I told you the sad story of John and Judy, an unmarried couple who lived together for 30 years, but did not plan for John’s illness and death. When John became ill, his nearest relative, his overbearing brother refused to allow Judy into John’s hospital room. When John died, his brother barred Judy from the funeral home and refused to acknowledge Judy as part of John’s life in John’s obituary. Later, John’s brother threw Judy out of John’s house where Judy had lived for over 20 years, and took most of the furniture and even their pet dog which was registered in John’s name, leaving Judy without pad or pet.

Things need not have turned out that way. If John and Judy had spent a little time and money planning, the results could have been much different.

Let’s see what they might have done. Remember, this article is not about religion or morality; it is about people’s lives and how legal tools can make them safer and better.

Planning for illness. John and Judy could have signed Medical Powers of Attorney, designating the other to make medical decisions when not able to make their own. This document would have allowed Judy, rather than John’s brother, to direct John’s medical care. It also would have assured that Judy could visit John and arrange extra-hospital care in a setting John would have liked better. In the Medical Powers of Attorney, they could have nominated each other to be appointed by a court as guardian if one ever were needed, thwarting John’s brother’s efforts to get in control of John’s care by court order.

They also could have signed Living Wills stating to what degree they wanted to be sustained on life support. As John’s illness progressed, he even could have arranged with his physician to have a Do Not Resuscitate (DNR) Order signed so that if his vital organs failed he would not be subjected to CPR, which may break ribs and puncture lungs.

Planning for Business and Financial Management

* Durable Powers of Attorney. At a bare minimum, John and Judy each should have signed a Durable Power of Attorney, naming the other as his helper to take care of business and financial matters. This document would have allowed Judy to take care of John’s financial affairs when John became too ill to look after those things himself. If John wanted Judy to be accountable to someone other than John’s obnoxious brother, he could have specifically said so in his Durable Power of Attorney.

* Trusts. Considering the unconventional nature of their relationship, they probably would have been better protected, in addition to naming each other as Attorney-in-Fact, if they had created a trust and placed in it all of their assets. Conceptually, a trust is merely a container with a set of directions saying what is to be done with whatever is placed in the container. If John and Judy had set up a trust while both were alive, they would have lived with its arrangements for awhile, making it very difficult for anyone later to challenge that either of them did not understand what the trust was all about.

It would have been something they routinely lived and worked with, which they could amend or even revoke if they decided they did not like how it worked.

Since it is an on-going tool which they can fine-tune or change while they are living, it is difficult to attack after one of them is dead. Such a trust might have given these instructions to the caretaker (trustee):

1. Whatever is in the trust is for benefit of John and Judy as long as either is living.

2. When both are dead, whatever is in the trust is to go to whoever the trust says should get it (probably not John’s brother).

A trust set up while they were both alive would not be controlled by the Will of either and would not be subject to probate. It could have named the person or bank they wanted as caretaker (trustee) if neither of them were able to look after the assets. In this way, they could keep their assets in friendly hands, while keeping hostile family members at bay and out of the picture.

* Beneficiaries. They also could have named each other as beneficiary of their life insurance policies, IRA funds, and investments. Upon John’s death his assets of this type would have been paid directly to Judy.

They would not have gone to John’s family. While John was incapacitated, using John’s Durable Power of Attorney as her authority, Judy could have looked after the assets.

* ˜Pay On Death Accounts. In addition, John and Judy could have set up appropriate investments, such as bank accounts and certificates of deposit as “Pay on Death (POD)” accounts. Such accounts are the property of the owner until his death, when they are paid to the designated payee. If John had set up accounts this way, they would have become Judy’s when John died.

* Joint and Survivorship. Or, they could have set up their investments and real estate (such as John’s house) so that they were owned by John and Judy as joint owners with the right of survivorship. In this form of ownership, they both would own the assets while living; when one dies, the assets belong entirely to the survivor. Since they both own the assets, Judy could have managed the funds and property while John was sick; when John died, the assets instantly would have become Judy’s.

* Will. John could have had a Will in which he left his assets to Judy and named Judy to be the executrix (the person who carries out the directions in the Will). Thus, Judy could have inherited John’s property and, by being executrix, could have kept the hateful brother out of the picture. When there is risk of serious attack, a Will is less secure than a trust because once a Will is signed it usually is put away and not reviewed until after death. Thus, any challenge to its validity comes after the one who made the Will is dead and cannot help defend it. Someone who creates a trust while he is alive can help defend it during the remainder of his life.

The singing trio from my heyday, Peter, Paul and Mary, recently sang a song about unconventional couples with this line, “Home is where the heart is, no matter how the heart lives.” For all couples, conventional or not, planning is important. For unconventional couples, it is essential and a basic ingredient of a loving relationship. If this shoe fits, please don’t put off providing for your Loved One. Any lawyer, especially an Elder Law Attorney, worth his or her salt will make it a comfortable process.

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Elder Law Attorney Gerald W. Townsend is a partner in the Parkersburg law firm of Fluharty & Townsend. His practice focuses upon Elder law, meeting the legal needs of Seniors in West Virginia, with special emphasis upon protecting home and life savings from nursing home costs. He can be reached at jtownsend@fntlawoffices.com.