The Supreme Court of Arizona adopted new Probate Rules impacting guardianship, conservatorship and probate proceedings on 12-13-11. The rules were largely adopted to be consistent with the Arizona Statutes adopted last year that will be in effect 1-1-12. Note, some of these Rules go into effect 2-1-12, and others go into effect 9-1-12. For a complete copy of the new Probate Rules go to www.azcourts.gov/Portals/20/Dec2011Rules/R110023-1.pdf

If you are serving as Guardian or Conservator for someone, these Rules will impact you! If you are not attorney represented, you should seek the advice of experienced counsel.

Beginning this month, the monthly maximum Veteran A&A pension benefits increased as follows: 

• Widow/Widower of Veteran $ 1094 per month (up from $1056)
• Unmarried Veteran $1,703 per month (up from $1,644)
• Married Veteran $2,019 per month (up from $1949)

 VA A&A benefits are available to Veterans or their widow/widowers who served during a war time period, now require the regular aid and attendance of another for activities of daily living, and meet certain income and resource criteria. This pension can make all the difference in paying for home health and/or assisted living. If you would like more information please contact our firm; all our attorneys are VA accredited.

AHCCCS (Arizona Health Care Cost Containment System) has announced the new 2012 income and resource eligibility criteria for the Arizona Long Term Care System (ALTCS) program.

 Income limits: If single, the ALTCS applicant may not have more than $2,094 in gross monthly income (up from $2,022.). If married, the applicant spouse will qualify if his/her gross monthly income is not more than $2,094 per month, or the total income of both spouses is not more than $4,188.00.  Note, however that if income exceeds these base limits the applicant may still be income eligible with the use of an Income Only Trust (aka Miller Trust).

 Countable Resource Limits: If single, the countable resource limit remains at $2,000. If married, Minimum Community Spouse Resource Deduction will be $22,278 (up from $21,912), and the Maximum Community Spouse Resource Deduction will be $113,640 (up from $109,560). 

 These changes will be in effect 1/1/2012.

Contributed by Charlotte Johnson, Attorney

How to distribute estate property located in Arizona to the beneficiaries (devisees/heirs) of someone who died in another state?

 You are appointed executor (personal representative) of an estate.  You discover that the decedent held property in Arizona, another state.  The court of his home state has no jurisdiction over it.  How do you, as a foreign personal representative, obtain authority to handle the Arizona property on behalf of the estate?

 Proof of Authority

One option is to file a Proof of Authority with the Arizona Probate Court in the county in which the property is located.  If you are appointed as a personal representative in another state, Arizona will recognize your appointment through a Proof of Authority.  No formal court proceedings are ordinarily required.  Certified copies of your Letters of Appointment and Proof of Bond, if any, are filed with the Proof of Authority.  If the bond is waived in the Will, some counties will require a certified copy of the Will.  Once you have a certified copy of the Proof of Authority from the Probate Court, it should be recorded in that county.  No further probate proceedings are required.

 With a recorded Proof of Authority, the foreign personal representative may then:

-          distribute the property to the beneficiaries (devisees/heirs),

-          sell the property,

-          maintain the property,

-          negotiate the mortgage or liens on behalf of beneficiaries (perhaps you are assuming the loan or refinancing the loan for a beneficiary), and

-          address other issues related to the property.

 Ancillary Probate

 If no probate is open in the decedent’s home state, a probate proceeding in Arizona may be necessary to obtain authority to handle the property.  The probate proceedings are similar to those conducted for decedents domiciled in this state at the time of their deaths.  Informal proceedings are available in most cases.

 Small Estate Affidavit

 In the alternative, Arizona property may be distributed by affidavit.  This type of transfer is available only if:

-          no personal representative is appointed, pending appointment, or has been discharged for over a year;

-          the decedent has been dead for at least six months; and

-          the total equity (net) value of the property in the estate is under $50,000 for personal property or $75,000 for real property. 

The small estate affidavit for transfer of real property is treated much like a deed.  If there is a Will, a certified copy should be included with the affidavit.  A certified death certificate should also be included.

 For further information regarding the estate administration of property in Arizona by foreign personal representatives (appointed in other states), please contact an experienced attorney licensed in Arizona.

Social Security Benefits Will Increase in 2012

 On Wednesday the the government announced that some 55 million Social Security recipients will get a 3.6 percent increase in benefits next year, their first raise since 2009. About 8 million people who receive Supplemental Security Income will also receive the 3.6 percent cost-of-living adjustment. The increase, which starts in January, is tied to a measure of inflation.

There was no COLA in 2010 or 2011 because inflation was too low. Those were the first two years without a COLA since automatic increases were adopted in 1975.  Monthly Social Security payments average $1,082, or about $13,000 a year. A 3.6 percent increase will amount to about $39 a month, or just over $467 a year, on average.

French Court Puts L’Oreal Heiress Under Guardianship

France’s richest woman, Liliane Bettancourt who is the heiress to the L’Oreal fortune (valued at $20.82 billion) was placed under Guardianship on Monday. The French Court determined that the 88 year old billionaire needed protection after reviewing a medical report stating that Ms. Bettancourt suffered from dementia. The assets will be managed by Ms. Bettencourt’s estranged daughter, Francoise Bettencourt-Meyers, and her two grandsons. The eldest grandson, Jean-Victor Meyers, was appointed guardian to handle medical decisions. It is anticipated that Ms. Bettancourt will appeal this decision.

This is the latest development in a public family conflict which broke out four years ago. At that time, Ms. Meyers filed a lawsuit against a celebrity photographer friend of Ms. Bettancourt to whom Ms. Bettancourt gave approximately 1 billion euro in art, life-insurance policies, and cash. Ms. Bettancourt argued that the friend preyed upon Ms. Bettancourt’s weakness. The friend returned all but approximately 200 million. Later, there were allegations that Ms. Bettancourt made inappropriate campaign donations, which allegations are being investigated. Most recently, there have been allegations that Ms. Bettancourt’s trustee, Ms. Wilhelm (former financial and legal advisor to Ms. Bettancourt), acted inappropriately in seeking Ms. Bettancourt’s investment in an on-line gambling business. The Court has removed Ms. Wilhelm as trustee and these allegations are being investigated.

 This fight between mother and daughter will likely continue to play out in the French courts and spark international public interest.

Alzheimer’s Disease and Down Syndrome

As an elder law attorney, I often work with elderly persons with Alzheimer’s Disease, persons with special needs resulting from Down Syndrome, and their families. Until today, however, I did not realize the two were linked in anyway. In fact, most, and perhaps all, persons with Down Syndrome will develop Alzheimer’s Disease. This makes special needs planning for middle aged persons with Down Syndrome that much more critical.

Alzheimer’s disease is the most common form of dementia, and is strongly associated with old age. The disease is progressive, and the brain degenerates. However, it should not be considered a normal part of aging. Down Syndrome is a genetic disorder in which a person has extra genes because of extra chromosome 21 material. The syndrome causes delays and limitations in physical and intellectual development.  People with Down Syndrome will also develop the brain changes associated with Alzheimer’s Disease. Interestingly, Alzheimer’s Disease is not more common in individuals with other types of intellectual disabilities.

In people with Down Syndrome, the first symptoms usually develop at age 50 years, and the disease is usually diagnosed by age 52 years. An estimated 10%-25% of patients with Down Syndrome have Alzheimer’s Disease at age 40-49 years, 20%-50% have Alzheimer’s Disease at age 50-59 years, and 60%-75% have Alzheimer’s Disease when older than 60 years of age. Alzheimer’s Disease decreases survival in people with Down Syndrome who are older than 45 years of age.

The reason Alzheimer’s Disease is more common in people with Down Syndrome is not completely known. At early stages the main symptoms of Alzheimer’s Disease are confusion, disorientation, and wandering. In persons with Down Syndrome, recognizing and diagnosing these early signs of Alzheimer’s Disease may be more difficult than in the elderly population.

The good news is that persons with Down Syndrome have much longer longevity that in prior generations. With that, however, will now bring on the complications of Alzheimer’s Disease. If you have a loved one with Down Syndrome in their 40s or older, you should give thoughtful consideration to consulting with an elder law attorney to be certain your loved one’s current and future needs will be met.

Nearly everyone knows or remembers someone who is affected by Alzheimer’s Disease.  If you don’t, perhaps it wouldn’t be a bad idea if you had yourself checked for the Disease!  According to the Alzheimer’s Association, it is estimated that one in eight people over the age of 65 has Alzheimer’s, and half of those over age 85 have it.  (See http://www.alz.org/documents_custom/2011_Facts_Figures_Fact_Sheet.pdf)

Basically, Alzheimer’s causes cell death and tissue loss of the brain.  This deterioration often leads to loss of memory or reasoning skills in its earlier stages and loss of motor control in its later stages.  This disease is the sixth leading cause of death in this country.   Although there is no known permanent cure, the symptoms can be treated, particularly if discovered in its early stages.  Early detection means time—time to obtain the most benefit from available treatments, to plan for the future, and to seek the best support you and your loved ones may need.

The Alzheimer’s Association describes 10 signs for early Alzheimer’s Disease detection: (http://www.alz.org/alzheimers_disease_10_signs_of_alzheimers.asp)

1-      Memory loss that disrupts daily life.

2-      Challenges in planning or solving problems.

3-      Difficulty completing familiar tasks at home, at work, or at leisure.

4-      Confusion with time or place.

5-      Trouble understanding visual images and spatial relationships.

6-      New problems with words or speaking or writing.

7-      Misplacing things or losing the ability to retrace steps.

8-      Decreased or poor judgment.

9-      Withdrawal from work or social activities.

10-   Changes in mood and personality.

Sometimes we confuse signs of typical aging with Alzheimer’s Disease.  The Alzheimer’s Association points out that occasional occurrences of these signs are normal.  It is when the signs are persistent or permanent (such as having no recollection of an event), that it may warrant a doctor’s evaluation.  For more information, please visit the Alzheimer’s Association website at www.alz.org.

As elder law attorneys, we strongly urge anyone advancing in age to plan for their future.  While it is not a very palatable topic for most people, it is better to make important decisions before any crisis arrives, when the options become fewer and more costly.  Although planning for the disposition of your estate upon your death is important, the scope of planning should include more immediate issues, such as making your wishes known as far as your care and living options, appointing someone you trust to assist you with your financial and health decisions if you become unable to manage them independently, and how to pay for your care. 

At Bivens & Associates, PLLC we can help you plan for your future, whether Alzheimer’s affects you or not.  Contact us for more information about complete long term care planning.

Contributed by Charlotte C. Johnson, J.D.

This is a question I often hear in my elder law practice.  My answer: be careful. 

This is a very common practice.  Some banks even advise their customers to do this.  Most adult children who have their names added to their parents’ accounts do so with only the best intentions; often it is just to help their parents pay bills.  The problem that often arises is this: if you are a joint owner of a bank account, you are also considered a joint owner of the funds in the account.  Should you have a lawsuit or a personal lien filed against you, file for bankruptcy, or divorce a spouse, those funds may be subject to those proceedings.  You may find it difficult to prove those funds are not actually yours. 

A financial power of attorney is generally a better, cleaner alternative.  Powers of attorney allow you to assist family members with managing their expenses and avoid account ownership problems.  Powers of attorney terminate on the death of the principal.  Another option is to be a signor, not an owner, of an account, if the financial institution allows that.  It usually is not clear.  Or, if probate avoidance is your parents’ concern, they may be able to designate accounts as payable on death (POD) to a particular beneficiary(ies).  If you must be joint owner of a bank account with a parent, it may be best to limit it to one account with a small enough balance that will not devastate your parent if the funds were lost. 

This is general information that may not be applicable to your specific situation and is not intended to be legal advice.  If you have specific questions, please contact an experienced attorney.

Contributed by Charlotte C. Johnson, JD

Contributed by Charlotte Johnson, JD

You may know someone who due to his or her physical or mental condition should not be driving a vehicle.  This can be a sensitive topic.  No one likes to acknowledge one’s own disability, that one is not able to do the same things he or she used to be able to do.  Also, loss of driving ability often means a loss of the sense of freedom to come and go as they please, as well as take care of their own needs. 

I once knew a woman who was so weak she used a wheel chair and could hardly keep her head up.  She lived alone and, until recently, still drove.  Unfortunately, it took a tragic accident that took the life of a pedestrian and bankrupted her from the resulting wrongful death lawsuit for this woman’s adult son to realize that he needed to prevent her from driving against her insistence.  Now, that was an extreme case where she clearly lacked the ability to drive.  However, even in less apparent cases, it is better to be safe than sorry!  If you have any doubts as to your loved one’s ability to drive, the time to act is now, before your doubts are confirmed the hard way.  Please do not allow your loved one to put his or her life or the lives of others in danger.  It is not worth it! 

What some ways to approach this sensitive issue?  The best method is to have a frank discussion with your loved one, expressing your fears.  Tell them you do not want anything bad to happen to them or anyone else.  Though they may dispute their abilities, they cannot dispute your fears.  If they are concerned that the loss of freedom to take care of their wants and needs, be willing to arrange rides for them with you, other family members, or friends as needed.  There are also numerous companies in the Valley who offer assistance with errands or other outings. 

If the loved one is resistant, there are a few other alternatives.  For example, anyone, including a friend or neighbor, may report the impaired driver to the Arizona Motor Vehicle Division Medical Review Program using the Driver Condition/Behavior Report (hyperlinked to http://mvd.azdot.gov/mvd/formsandpub/viewPDF.asp?lngProductKey=2042&lngFormInfoKey=1861) .  The identity of the person reporting the impaired driver is kept confidential.  The MVD may require the person to undergo medical, psychological, or driving skills evaluations.  Depending on the results, the MVD may suspend or revoke the person’s driver’s license.  For more information, contact the MVD or visit the Medical Review Program webpage (hyperlinked to http://www.azdot.gov/mvd/MedicalReview/MedicalRequirementsDL.asp).

More immediate alternatives are to hide the car keys, disconnect the car battery or spark plugs, take the car in for “repairs,” or call the police.  Unless allowed by a power of attorney, you technically do not have the right to take possession of their vehicle.  And that may not stop them from obtaining a new vehicle.

The Probate Court has the authority to take away driving privileges under guardianship proceedings.  The Probate Court also can take away control of assets if that person is incapacitated and unable to responsibly manage their own affairs.  In other words, a conservatorship could prevent your loved one from purchasing a new vehicle.   We suggest you meet with an attorney to discuss whether a guardianship or conservatorship is appropriate.

Safety should come first.  As your loved one’s physical and psychological abilities deteriorate, we strongly recommend you address these are serious concerns with them before problems arise.  For more information, please contact us at 480-922-1010.

Charlotte Johnson, J.D. is an attorney at Bivens & Associates, PLLC