PBWS Blog

First, we have to understand the concept of a "hot document."  A hot document is one that confers authority.  A Will is never a hot document until the Testator dies.  A Power of Attorney usually confers authority at the time that the document is signed.  Sometimes, a Power of Attorney is drafted as a "springing power" which means that it does not confer authority unless an event occurs, most commonly the incapacity of the principal.  Only if the principal becomes incapacitated is the document "hot."  But a better drafted Power of Attorney will confer authority right when it is signed by the principal.  The Agent can step in as an assistant whenever needed.  A Trust can confer authority either during the grantor's lifetime, or at death, or at incapacity.  A successor Trustee will only have authority after an event has occurred, usually the incapacity or death of the first Trustee. 

 Once a document is "hot," what do the different titles mean?  I think it is helpful to visualize taking one of these roles as putting on a baseball cap.  If you are appointed to be the Personal Representative, and the Testator has died, you need to be able to put on the hat with the letters “...

I attended a spring “boot camp” of the Special Needs Alliance last weekend.  I have been a member of this organization since 2002.  It is an invitation-only professional organization of lawyers who have expertise in planning with families who have disabled family members.  These lawyers are a reliable place to start when a family needs to know about trusts, Medicaid benefits, special education, settling a personal injury suit, housing, Social Security benefits, food stamps, estate planning for other family members who want to support the disabled family member, and accessing many other services and benefits that may be needed.  There is only one other lawyer in New Mexico who is a member of the Special Needs Alliance.

 The boot camp was held in San Antonio, Texas, and was attended by over one hundred lawyers from all over the United States, including Hawaii and Alaska.  One of the benefits of the organization is that clients can be confident that each of the lawyers is expert and sensitive to the needs of disabled family members.  If you have a family member in Florida, we can refer you to an expert there, several experts actually. 

 The focus of this boot camp ...

Last Saturday, several of our clients, friends and their family members, attended our annual Trust School.  We hold another session of the Trust School each fall, concentrating on Special Needs Trusts.  But this spring session is all about all types of trusts.  The title this year was “The Truth About Revocable Trusts.”  The co-sponsor was Bank of the West.  Their trust department, which is headed by Camilla Serrano, was very helpful and knowledgeable.  We plan to put this session on the road with them again in Las Cruces in May.

 We hold this “school” once a year for all of our clients.  We are very aware that we draft trusts for many clients and that as much as we may explain how they work, it may not be completely clear.  And, we are very aware that children who may be named as future trustees might like to be informed about what their responsibilities will be.  Finally, we often have folks, such as social workers, stockbrokers, accountants, and family assistants, who attend who are not our clients or their relatives, but who want to know more in general about trusts, because they encounter them regularly in their work with their own clients. 

 The topics of ...

An agent is a person chosen by another person to act on their behalf.  The person who chooses an agent is often called the “principal.”  The agent represents the legal rights and responsibilities of the principal, but the principal does not give up any of those rights when appointing an agent.  The most common form of agency that our law firm works with is authority pursuant to the terms of a power of attorney.

 Powers of Attorney are simple looking documents, usually not longer than four or five pages.  New Mexico has statutes for three types of powers of attorney, a general power of attorney covering legal, financial and business matters, a health care power of attorney that is specific to medical issues, and a mental health care power of attorney that is unique to the mental health arena.  The three statutes offer statutory forms for each of these powers of attorney.

 You will see other types of powers of attorney as well.  Banks and financial institutions offer powers of attorney for their clients.  When you are admitted to a health care facility you will be given a brochure about “advance directives,” which are powers of attorney by which you appoint an agen...

I really do not know the answer to this question.  But now that I have your attention, let me talk about two articles that appeared recently.  The first article is titled “With health care, like anything else, we get what we pay for,” which appeared in a February 7, 2011, column by Winthrop Quigley in the Albuquerque Journal.  In that article he refers to another article titled “The Hot Spotters,” by Dr. Atul Gawande that appeared in the January 24, 2011 issue of The New Yorker.  

In his article, Quigley tells the story about Dr. Alfredo Vigil, the former Secretary of Health for the State of New Mexico.  At close to 5:00 pm on a work day, he suggested that all of his employees who had children call their pediatricians and tell them that their children had temperatures of 103 degrees.  He was sure that each of the doctors would tell the callers to take their children to the emergency room.  His point was that the primary point of service is emergency rooms, and that doctors rely on that service all the time.  However, as study after study shows, emergency rooms are not designed to provide primary care and are the most expensive way to provide primary care.  They ma...

In our law practice, we represent family members.  When we are retained, it often has something to do with our client’s relationship with his or her family.  Families are organic and they have systemic issues that date back for many years.  We work very hard to design solutions to problems that aim at strengthening relationships in families, but sometimes, that cannot be done.  Understanding exactly who our client is at all times is critical for effective representation.  And, not incidentally, our professional code of ethics requires that we remain loyal to our clients, that we keep their affairs confidential, and that we advocate zealously for them.  There does not have to be a fight among family members for us to have a conflict of interest.

 A simple example is representing a married couple preparing their estate plan.  Most married couples have common goals with their estate plans, especially if they are the parents of all of their children.  It seems simple enough to represent both spouses.  This is called joint representation.  We review with joint clients that we owe each of them a duty of loyalty and confidentiality, and that if a dispute arises between them, or...

We have many folks who contact us about financing long term care. Sometimes there has been a diagnosis of Alzheimer’s or another long term debilitating disease, and sometimes there has been a fall or a sudden illness that puts the family in crisis mode. In either case, it is not unusual for us to have to either undo some preliminary Medicaid planning that another lawyer or the family has done. And this can make it harder, not easier, to access long term care benefits available through Medicaid. So let’s review the basic planning rules of Medicaid.

To begin with, the threshold for Medicaid eligibility is that the applicant must be sick or disabled and in need of services. After that, the applicant must also be indigent. What that means this year in 2011 is that the applicant, if single, must have countable resources of no more than $2,000, and monthly income of no more than $2,044. If the applicant is married, then we can blend the income and resources with the spouse, but the applicant is still limited to the numbers above, while the spouse may retain $109,560 in resources and can retain all of his or her income n...

When you open your newspaper and a pink flyer falls out telling you to come to a seminar about trusts, does that make you wonder why you do not have one too?  It seems like everyone has trusts these days.  Should everyone have trusts, as the flyer seems to imply?  Maybe I should have one and my lawyer just forgot to tell me.  Why do some people have trusts and other people do not?

 Revocable inter vivos trusts, which are also called “living trusts,” are vehicles to hold assets while you are alive.  There are many reasons why people have one, and in New Mexico there are many good reasons why you do not need one. 

 One of the reasons that you might hear that you need a revocable trust is to avoid probate.  Using avoidance of probate as the only reason to create a trust in New Mexico might mean that you are being sold a more expensive estate plan than you need.  New Mexico has adopted the Uniform Probate Code.  The county Probate Courts in New Mexico do not collect taxes on probate estates.  What this means is that in New Mexico, probate is relatively inexpensive and simple.  In other states, probate often means delays, appearing in court, paying court fees, and pa...

My adult daughter asked me once what medications I was taking.  I told her that I took two prescription medicines.  She asked me what they were and what they were for.  I told her that one was a medicine for hypertension and that the name started with a B, and the other was for high cholesterol, and the name of it started with a C.  She asked me for the dosages and I looked at her with a blank look, then told her that one pill was round and pink and the other one was shaped like a football and was also pink.  She then asked what I said to my clients who did not know what medications they were taking, and I told her that I scolded them.  She frowned at me.  My daughter was of course correct in wanting to know what medications I am taking.  It just never dawned on me that I should write that information down, and of course learn the names and dosages myself. 

 We provide our clients with a notebook of copies of their estate planning documents.  The notebook is prepared as a working tool, which our clients can use as an organizer for all sorts of information in addition to having copies of documents handy.  We design the notebooks so that they can be kept on a bookshelf, o...

On January 4, 2011, The National Alzheimer’s Project Act (“NAPA”) was enacted by Congress.  This Act creates an integrated national plan to overcome Alzheimer’s, which includes providing information and coordination of research across all Federal agencies aimed at improving the early diagnosis of Alzheimer’s disease and to coordinate the care and treatment of patients who have Alzheimer’s.

 According to the Alzheimer’s Association Fact Sheet of May, 2010, caring for those with Alzheimer’s and other dementias costs society a total of $172 billion, including $122 billion in costs to Medicare and Medicaid.  Nearly 11 million caregivers provide care to people with Alzheimer’s disease or other dementias, with an unpaid cost of $144 billion.  In the United States today, 5.3 million people (5.1 million of whom are over age 65) have Alzheimer’s.  It is estimated that by 2050, 13.5 million Americans will have Alzheimer’s or a form of dementia. 

 The United States is the 11th country to adopt a national plan, behind countries such as Cyrus, Wales, India and Malta. 

 The Act provides that the Secretary of Health and Human Services shall carry out an annual assessm...