Portland, Oregon Estate Planning and Elder Law Attorneys
Law Offices of Nay and Friedenberg
6500 SW Macadam Ave., Suite 300
Portland, Oregon 97239
Law Firm Overview
The Law Offices of Nay and Friedenberg are dedicated and experienced law offices based in Portland, Oregon. We have one goal and that is to serve you, your children and grandchildren in the generations to come.
Law Offices of Nay and Friedenberg - Providing services in the following areas of law:
Articles Published by Law Offices of Nay and Friedenberg
When is a Guardianship Needed?
Many times, people come to our office seeking guidance about how to handle a family member whose erratic or eccentric behavior is causing concern.Read Article
What is the Difference Between a Will and a Trust?
Both a will and a trust distribute your money and possessions after your death. A trust is a will substitute.Read Article
Do I Have to Spend All My Assets to Qualify for Medicaid?
So, let’s say this hypothetical couple with $100,000 can see down the road that the need for long term care is coming. Maybe one of them has Parkinson’s disease or Alzheimer’s. If they give away $50,000 to their kids, how does Medicaid look at that?Read Article
Videos Provided by Law Offices of Nay and Friedenberg
How Can I Avoid Probate with a Living Trust.
The original idea of a trust is you separate the ownership of an asset and the management of an asset. If you are setting up a trust for your grandchildren who are minor kids then that is how it is going to be. Your grandchildren will be the owner of the assets and a responsible adult will be the trustee and will be in charge of those assets for the benefit of your grandchild. But if it is your trust we are talking about, and here we are talking about revocable living trusts, you are going to establish a trust with your own money and property and you are going to be trustee.
A lot of times it is going to be a husband and wife. For example, Mr. and Mrs. Jones will establish the Jones Trust and Mr. and Mrs. Jones will be the trustees. What you are doing in that example is taking your money and property and converting it to a new legal form where you are still entirely in charge of those assets and the management of those assets. Why are you doing this? Well, because when you pass away the trust continues to give authority to your child or whoever it is you want to manage your affairs when you are gone so that person can transfer your money and property to the people you specify without having to go through this court process called probate.
Probate is the same idea where your money and property goes to the people you specify in your will but the difference is, in order to get there, you have to go through this court process. It is going to take a long time and cost a lot of money because it is driven by attorneys and you’re in the court system. The basic idea is you can have a will that has a set of instructions about who gets what when you pass away. If you do a trust, it will have the exact same instructions. You can put exactly what you are going to put in your will, into your trust. The difference is, how do you get it there? If you are using a trust, your trustee is authorized to carry out those instructions immediately at death. The Trustee isn’t going to have to hire an attorney to go through this whole court process. It is a good idea to have a lawyer involved but you are not in the court system. The trust itself gives legal authority to your Trustee to carry out your instructions. If you’ve got a will, it doesn’t work like that. Your representative is not going to be able to carry out your instructions immediately when you pass away like you will be able to do with a trust.
What can I do if a loved one needs help but refuses assistance?
Maybe you can arrange for in-home care for mom and dad. Maybe you can assist them with bill paying where you just help them write out the checks and they actually sign the checks and put them in the envelope. Set up a structure that can help them maximize their independence.
But if those measures fail, it may be time to consult with professionals like doctors, social workers and even a lawyer to talk about the possibility of a Guardianship. A Guardianship is where the court takes away an individual’s decision making rights and gives them to someone else, the Guardian. And then the Guardian would have the authority to make decisions, for example, about where this individual lives and what happens with their money. And that is kind of the answer of last resort but it may reach a point where their behavior is putting themselves in physical or financial danger.
What do I need for basic Estate Planning?
A Will is a set of instructions about how money and property is to be distributed when you pass away. Typically with young couples what we are talking about is what happens when the second one of them passes away. Because typically they are going to want to set up their estate so that when the first parent passes away, they don't really have to do anything. Unless it is a larger estate, meaning over $1 million in assets, where you have to worry about inheritance taxes. If we are not talking about that, it should be pretty well set up so that when one parent passes away everything is basically owned by the surviving parent and the will wouldn't have to be used at that point. But at the second death, the will needs to have a trust set up for the children that will be in affect until a designated age and typically we are going to recommend that age to be 25. The parents need to designate somebody as a trustee for their minor children or young adults to handle their money or property in the event that both parents pass away until that designated age. The parents are also going to have to designate someone to have custody of the child if they both pass away. If one parent dies that is not an issue because the surviving parent will have custody and won't need a court order in order to obtain that.
Powers of Attorney are documents that give each other the authority to manage financial and legal decisions on behalf of an incapacitated spouse. Just because you are married does not really give you legal decision making when it comes to handling assets. Now, if you own your assets together, like you have both names on a checking account and one of you becomes incapacitated, the healthy spouse will be able to handle that type of an asset because the healthy spouse is an owner of that asset. But you still need a Power of Attorney because for example if you have an incapacitated spouse and you both own the house, you can't sell the house or get a mortgage on the house unless both spouses sign. And that is what a power of attorney does. It allows you to sign for an incapacitated person who can't sign because of incapacity. It is very important to have good Powers of Attorney in place even though you are married because marriage doesn't really give you legal signing authority.
And the last thing is a Health Directive. In Oregon we use a document call an Advance Directive for Health Care. It is going to appoint a spouse as a health care representative to make medical decisions in the event that you can't do that anymore because of incapacity. It is also going to specify your desires for end of life care. So if you are in a coma or final stages of an illness do you want to be allowed to die naturally or do you want to be hooked up to tube feeding or other life sustaining technology. In both of these documents, the Power of Attorney and Advance Directive, you are going to want to name a contingent person to serve in the event that your spouse dies before you or is unable to serve. So it is not enough just to name your spouse, you are going to want to have another person and preferably two, to act in the event that your spouse isn't there for you.