Sunday, April 12, 2020

Protection for Elders in Iowa From Financial Exploitation

What is "elder abuse"?
As provided in Iowa Code 235F, elder abuse means any of the following:
1.     Physical injury to, unreasonable confinement, punishment or assault of a vulnerable elder
2.     Sexual offense with or against a vulnerable elder
3.     Neglect by a caretaker of a vulnerable elder
a.     Includes the deprivation of the minimum food, shelter, clothing, supervision, or physical or mental health care necessary to maintain life or health
4.     Financial exploitation of a vulnerable elder.

Who is considered a vulnerable elder?
A vulnerable elder means a person sixty years of age or older who is unable to protect himself or herself from elder abuse as a result of age or a mental or physical condition or because of a personal circumstance which results in an increased risk of harm to the person.

Did you know that the elderly poor are at greater risk of financial exploitation than the wealthy?
Many low-income older Iowans are financially exploited by caretakers, family and "friends". Approximately 8,195 reports of alleged dependent adult abuse or neglect were made to the Iowa Department of Human Services between July 1, 2017 and June 30, 2018. After filing a claim, an abused or neglected dependent adult has less than a five percent chance of formal litigation taking place.
Prior to 2014, the only options for victims of elder abuse were through the Iowa Department of Human Services, or taking the expense of hiring a private attorney to file a lawsuit against an alleged abuser which might cost more than what you can recover...if you win.
Now, Iowa Code 235F comes to the rescue. This new law broadened the definition of abusers to include persons beyond just the caretaker. Iowa attorneys can now utilize a relatively new action called a 235F petition for relief from elder abuse.  Unlike a traditional civil action that can take more than a year before it’s tried, a petition for relief from elder abuse hearing shall be set between five and 15 days after commencing a proceeding and notice to the other party.  Also, there is extremely little formal discovery in these cases based upon the Iowa Supreme Court 2019 ruling in Struve v. Struve.  (Good case to read for explaining the law.)

Moral of the Story:
Don’t try and pull a fast one on your grandma. Iowa is closing loopholes in elder abuse situations. No longer is it only the “caretaker” that can commit elder abuse. The “abuser” can be a family member, spouse, child, neighbor, friend, etc.

Probate Issues in Iowa Now a Separate Blog

Way back in 2009, or whenever I started this blog, I posted about probate topics as well as estate planning.  (I'm not sure I expected to be blogging still in 2020.  My dream of retiring at age 44 and retiring to a caribbean island just didn't materialize.)  Then one day I looked at the site address-Iowa Estate Plan--and decided maybe it made more sense to keep probate topics on one site and keep this as estate planning.  Plus, I purchased the Probate Iowa site and decided I should probably put something on it.

There will always be some overlap between the topics, but with the convenience of a computer mouse and a click, you can easily maneuver back and forth to your heart's content.

Check out Iowa Probate for posts about probate matters in Iowa.

Sunday, March 22, 2020

COVID-19 and Suspension of Physical Presence for the Execution of Legal Documents

Each day gets crazier and crazier on COVID-19's impact on our society, including in the estate planning world.  Under Iowa long-standing law (Iowa Code sec. 633.279), when an individual signs their will, it is required that they sign in the presence of two individuals.  This has been pretty strictly adhered to by Iowa courts in requiring the physical presence of the witnesses.

Today, Iowa Governor Kim Reynolds issued a proclamation suspending the requirement of physical presence of individuals witnessing the signing of wills and medical power of attorney documents provided that the signing takes place where the witnesses and individual can see and hear one another through electronic means, such as video conferencing.

The other portion of the proclamation deals with the remote notarization of documents.   Technically, Iowa's remote notary law wasn't scheduled to take effect until July 1, 2020 so the Governor's proclamation essentially "fast tracked" the implementation date.  This one is a little trickier as we don't have rules from the Iowa Secretary of State's office yet.  However, we are looking to get some additional guidance this week from their office.

Special thanks to Governor Reynolds and the Iowa Academy of Trust and Estate Counsel in getting this done expeditiously.

For all of those individuals that were "dying" to sign their Last Will and Testament, but didn't want to be in my physical presence, act now.  We can "Zoom" to you and get those signed.

Sunday, February 09, 2020

Retirement Accounts and Conduit Trusts and SECURE Act. What Do I Need to Do???

The recent passage of the “Setting Every Community Up for Retirement Enhancement” Act (SECURE Act) in December 2019 created some significant changes to retirement accounts.  One big change of SECURE resulted in changes to allowing what is commonly referred to as “stretch” IRA’s. Previously, beneficiaries such as children and grandchildren, were able to have funds withdrawn from an inherited retirement account over the rest of their expected life. That allowed younger beneficiaries to extend (or stretch) the IRA distributions over several years, or potentially decades for very young beneficiaries. The result was that the taxable income was spread over a long period of time that allowed the account to continue to grow (hopefully). With a few exceptions, the stretch IRA is no longer an option and funds from a traditional IRA/401k must be withdrawn within ten (10) years of your passing.

Many clients incorporated provisions in your estate plan that used the “conduit” trust as a way for your trustee to control those IRA/401k distributions for certain beneficiaries.  For example, if you had a young beneficiary or a beneficiary that had some concerns over financial management or financial maturity, you may have listed your trust (whether a revocable living trust or trust established under your Will) as the beneficiary of your IRA/401k with the intention of stretching those distributions out over many years.  To accomplish that goal, trust provisions provided the required “conduit trust” language.

Now, with the SECURE Act provisions (starting January 1, 2020), those same conduit trust provisions may result in some undesired results where instead of stretching distributions out, the most we can do is a ten year window.  

So what does this mean for you? My favorite answer: “it depends”. More specifically, it depends on your beneficiary designation on that retirement account and it depends on the personal situation with your beneficiaries.

If you have a trust named as a beneficiary of your IRA/401k, you should review your trust to determine if the “conduit trust” language is present in your trust and whether that is appropriate.  If you would like to set up a meeting to review your situation and your trust language, please feel free to contact our office to arrange a meeting.

Conversely, if your IRA/401k does NOT list a trust as a beneficiary, then it is not necessary to modify your trust. (Although it might be a good idea to review your estate plan regardless.) 

If you have minor beneficiaries, the conduit trust provisions can remain and we can still stretch those distributions out until they reach age eighteen, and then the new ten year withdrawal period starts once they reach age 18.

The first step is to check your beneficiary designation. You should have that information with your files, otherwise your financial planner or HR representative should be able to help you out. Then, if a trust is the beneficiary, the second step is to examine your estate plan documents (will or trust) to confirm the conduit trust language is present. If it is, the next step is to examine your beneficiary’s situation to determine if you are comfortable with that beneficiary getting access to all of those funds in that ten year window after your death.  

If you want to limit your beneficiary’s access for a longer period of time (e.g., beneficiary with creditor problems, marital concerns, addiction issues, etc.) we can still utilize a different structure to control those funds beyond a ten year window. However, changes to your plan will be necessary.

If you aren’t sure what if anything you need to do, or just want an excuse to come see me, we would be glad to visit with you about your current estate plan and any necessary changes for this issue or any other changes.