. . . or is there?
Often, a child or close friend of an elderly person will be granted a power of attorney to help the elder handle her financial affairs. Such power of attorney is usually quite broad, granting the trusted agent the ability to, among other things, sell property, open and close bank accounts, and the like.
Far too common is the case where the trusted person then uses the power of attorney for his own financial gain. Family of the exploited elderly person find out only later (often after her death) about the misdeeds.
Given that the wrongdoer was granted a full power of attorney to do anything they thought proper with the grantor's financial affairs, isn't it impossible to sue the agent for misappropriating money or property, for re-titling assets in the agent's name?
No. In Georgia, as in most other states, an "agent . . . cannot have any interest or do any act adverse to the interest of his principal . . ." Furthermore, "[t]he agent shall not make a personal profit from his principal's property; for all such he is bound to account." First National Bank of Paulding County v. Cooper, 252 Ga. 215, 215 (1984).
If a loved one dies and the family fears he has been exploited through misuse of a power of attorney, what can be done? Foremost, an attorney should be contacted immediately. Placing an injunction on distribution of mis-titled insurance policies and accounts early on can save an estate large sums. A "constructive trust" may likewise be placed over the assets of the wrongdoing agent to ensure the stolen property isn't dissipated before the case comes to trial.
Often, such matters settle early. Faced with the reality of their misdeeds and the plain wording of Georgia law, many power-of-attorney-abusing agents will simply allow the matter to progress without putting up a fight. Even in absence of a settlement, a court showing that an agent did some act contrary to the interests of his principal is not as difficult as - say - showing that a will signer was incompetent, and litigation is often worthwhile for the estate.
As Alpharetta, Georgia, probate attorneys at the Tieger Law Center rightly report this week, estate taxes can be devastating to non-US citizens. The reason is that most U.S. citizens' estates currently pay no taxes on the first $5 million of the inheritance. Not so for non-citizens, where every dime after $60,000 is presently taxed at a 35% rate. The “logic” behind this policy works in the case of foreign nationals who earned money abroad all their lives, brought it into the U.S., and then died. Less so for the more typical case of a foreigner who lived and worked in the U.S. for decades, paid taxes during his lifetime just like an American, and then leaves a modest estate worth more than $60,000. The author of Tieger Law Center’s blog post recommends gifting using offshore family corporations. Other approaches to the problem abound, but key to all of them is beginning to plan early. ------------ Tanner Pittman, LLC is an estate planning and probate law firm that assists clients in the LaGrange, Newnan, Columbus, and Metro Atlanta areas.
Congress has been mulling over allowing the "stretch IRA" benefit to lapse. At present, when you inherit a properly titled IRA, you can continue to allow it to grow tax-deferred, taking only certain required minimum distributions over your lifetime. That may be all about to change if Congress repeals this lenient rule in the latest transportation bill. All of which, says estate planner Ronald Morton, should make Roth IRA's even more attractive as savings vehicles. Since Roths are paid into with after-tax earnings, they trigger no tax hit when distributions are made, as they would be when the Roth is received as part of an inheritance. ----- Tanner Pittman, LLC is a LaGrange, Georgia, and Metro Atlanta estate planning law firm that advises clients on structuring their retirement assets for inheritance purposes.
 John Goodman, the Florida millionaire, has notoriously adopted his girlfriend, who is only six years his junior. Trial and heirs blog has a very interesting analysis of the matter here. As the authors explain it, a primary reason for the adoption is that Goodman's irrevocable trust for his children needed tending to. It seems the trustee of the trust, in Goodman's view, was not managing it well on behalf of his teenage children. And since the trust was irrevocable, Goodman himself could not do anything to change the trustee. Enter his girlfriend. Goodman's plan appears to have been to make her his legal "child," thus giving her the right to more closely monitor the behavior of the trustee from the standpoint of a beneficiary of the trust. ----- Tanner Pittman, LLC is a LaGrange, Georgia, and metro Atlanta law firm that advises clients on estate planning matters, including irrevocable trusts
Presently, when an IRA owner dies, the named beneficiary of the IRA may take distributions of that account over his or her actuarial lifetime. The benefit of this is that the principal of the IRA continues to grow tax-deferred, resulting in very significant lifetime gain. Estate planning attorney Ronald Morton fears this benefit may be marked for death by Congress. He cites to a recent Forbes article addressing the same concerns. Tanner Pittman, LLC is a West Georgia and Atlanta-area law firm specializing in estate planning and complex planning to avoid estate and gift taxation for affluent individuals and families.
Estate planning firm the Tieger Law Center posts a synopsis of a Vending Times article on the top five ways to leave your estate to the IRS. It's well worth a read. Tanner Pittman, LLC is a West Georgia and Atlanta-area law firm specializing in estate planning and complex planning to avoid estate and gift taxation for affluent individuals and families.
 The Supreme Court of Georgia clarified the visitation rights of grandparents to visit their grandchildren in a ruling on January 9, 2012. The ruling is not so interesting for what it does address (touching on the technical niceties of family situations involving an adoptive step-parent) as the point of law it stands for: that grandparents have no de jure rights to visit their grandchildren if the children's parents are married to one another. This point of law sometimes relates to estate planning issues, as estate and probate attorneys find they feel like practitioners of "domestic" law far too often. Family rifts wind up in wills and blow up in probate. The relevant statute, O.C.G.A. § 19-7-3, is below in its entirety for the reader's reference, as is the Supreme Court opinion. Click the "read more" link to find them. Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on planning around difficult family situations. Feel free to contact us today about your own such issues.
 The very fact that we're in a historically unprecedented time of Congressional generosity may be lulling the wealthy in to a false sense of security, reports Investment News. Faced with a $5 million exemption and other priorities in life, individuals of all but the most tremendous wealth are putting off complicated tax planning in particular, and estate planning in general, according to a survey of 1,085 estate planning professionals. But we live in uncertain times. The estate tax exemption is set to go down to $1 million for each individual beginning in 2013, provided Congress does nothing. Why not wait until then? The very fact of this uncertainty, argue planners (this one included) means the time is nigh to make a contingency plan. After all, life happens, and given the large number of wealthy in their later years, many individuals run the risk of an event that will cause their incapacity before they can react to an adverse move by Congress. Tanner Pittman, LLC is a West Georgia and Atlanta-area law firm specializing in estate planning and complex planning to avoid estate and gift taxation for affluent individuals and families.
 Scene from classic video game "Pitfall Harry." Connecticut elder law attorney Michael Keenan blogs here about the importance of not violating the "sole benefit" rule in a special needs trust. I would add only a resounding "amen." When funds in a special needs trust are misused, the result may be that the intent of the entire trust is defeated, which can be disastrous for the beneficiary. And "misuse" of trust funds need not be something nefarious. As Keenan notes, if a minor child receives a distribution that should have been the responsibility of the parents, then the trust has been misused. The government may take the position that the distribution was a "gift" to the parents rather than the child. Tanner Pittman, LLC advises clients on estate planning issues, including special needs trusts.
 Your Facebook account. A lifetime of personal emails. All your bank passwords. These are all things that your will won't pass on to your heirs. And chances are high that they'll be lost forever. That's quite a loss when you consider it. Today, our personal email accounts are like an intimate journal of our lives and include correspondence with loved ones, cherished photographs, and important information that should be could be passed on to future generations. This is to say nothing of the financial mess that we all have online. The average person has literally dozens of passwords to online accounts, none of which survive his death. Planning is the answer to all this. This firm yearly encourages clients to keep digital and hard-copy lists of email accounts, financial passwords, and other such information securely in the hands of a trusted loved one. A recent Seattle Times article provides even more insight. The estate planning attorney quoted therein, James Lamm, says that a "digital will" has three basic steps: "First, do a complete inventory of all digital accounts and assets so that your estate administrator will know just what you have of potential value (or liability) and where it is. Second, assemble a list of all passwords. Third, select a fiduciary and give them the proper power of attorney to administer your estate." Another note: It is possible to access the gmail, yahoo, or hotmail accounts of a deceased individual. This blog explains how. See also here for another step-by-step guide to preparing your "digital will." Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on such matters as digital wills.
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