0:03 and where are you going? What do you want? [Music] Hello and welcome to Trust and Estate Weekly. I'm your host, Kevin Bemel, and I'm here every Monday at 10:00 a.m. specific time to talk about estate planning and trust in estate administration both from the standpoint of professionals who help people with such uh such doings uh including my guest uh
0:38 Lisa and as well you know for those of you who are you know curious and and want to get more educated for your own purposes and be able to talk to your adviserss more intelligently and uh so uh this today I always want to this morning because here on the West Coast it's morning, but I realize in in New York it's already afternoon and um um I I have one viewer who who watches almost every show from Africa. So for him I think it's already afternoon. But in any event um today I'm I'm very pleased to have uh as my guest Lisa
1:16 McCarly. So Lisa is a relatively new friend of mine. we've been talking about some um you know opportunities to work together but in the course of doing that uh Lisa um you know mentioned to me her her very deep interest and her her really astonishingly broad knowledge on the issue of planning for incapacity. So Lisa is an estate planning attorney as you might guess. Um but she also gets involved in the administration of estates and uh um
1:51 conservatorships and such. So u without further ado, Lisa, thank you so much for coming on Trust and Estates Weekly. Well, thank you for having me this morning, this afternoon, Kevin. um lovely to see you again and I do appreciate every opportunity to talk about um the silver tsunami. But a little bit about myself, I went to law school in the n started in the 1980s. Um and I went to actually be a probate and conservatorship attorney, which was very unique at that time. But I was mentored
2:26 by a pair of attorneys, Mark McCarly, who I ended up marrying, and Walter Rosen, who was um a child who knew me as a child. And they explained that they foresaw the great opportunities to help people and to serve be of service to the community of a the aging population. And in particular, I've always been fascinated by the boomers because I'm a very young boomer. I'm born in the uh 1960s. So I come at a tail end of a historic unprecedented
3:01 um period in history where so many people were born starting in 1946 and during my career I've had a chance to work on a very uh explore very very famous conservatorship. Um I was actually instrumental in the free Britney movement. Um, and many people if you Google me will some see that link, but I was the first attorney that showed up and discovered um, in 2020 before everyone else did, but this was
3:36 important that Britney Spears had been deprived of her constitutional rights. She was not given fair due process in the inception and creation of her, I think, rather awful 13-year conservatorship. So, what happened in 2020 is these young people called me, said, "Would you come to a rally? It's COVID." I had nothing else to do and I was depressed like everyone else. I said, "Sure, let me show up." And what they handed me was evidence that Britney Spears had been wrongfully um sort of placed in this
4:14 conservatorship. And by 2021, journalists had taken notice, politicians had taken notice, the Free Britney movement erupted into something that was international and absolutely fabulous. But basically, because I was able to spot what went wrong, it went from the free Britney movement went from a conspiracy theory with a bunch of crazy fans to being a very legitimate um very intuitive, wellthoughtout movement. And as I recall it, in the
4:51 end, the conservatorship was um whatever the word would be, taken away. And Right. Her her father was acting as conservator, I believe. Yeah. I mean, the whole thing was just so there was a lot of sort of what appear to be financial malfeasants going on and yeah, it's it's funny because I I saw that on your LinkedIn page. Um maybe it was last week and I'm looking think free Brittany and I'm thinking to myself, Brittany Grimer? No, couldn't be. you know, I'm not to be honest with you, I'm not really sort of into popular
5:26 culture. So, but but every, you know, anyone who's in our business has, you know, knows at least a little bit about the situation with um with with Britney Spears um and and has seen these kinds of situations where someone is wrongly put under a conservatorship. Um, and often times it's because family members or whomever want to, you know, get a hold of whatever they've got. And it doesn't have to be someone fabulously famous and wealthy. Exactly. Just be someone with modest assets that
6:01 somebody else is trying to get. Exact. I mean, you're making an excellent point and that's what we're going to talk about in a minute. But conservatorships, at least in in Southern California, and um and I don't mean every conservatorship, obviously there are some conservatorships that are well meaning and important and needed to take place, but I do fear that the process is not transparent enough. It's not efficient. Um, and so one of the things that I would tell your audience is that doing
6:39 an estate plan may seem like such a nuisance, but for let's say $2,500, you can actually help keep out of conservatorship court. Even more so than like this, you like what happens when you're gone? You're gone. But you really do not want to be part of a system that is as broken, expensive, dysfunctional as our probate conservatorship courts are right now. Um, and unfortunately, although I had for a moment great hope, that there would be meaningful reform in
7:16 the conservatorship courts, um, I'm not seeing that in many of these counties because what happens with instit with these institutions, you know, like probate court is that people turn over. So, you'll have different judges, different staff, and there's um, no historical memory like what went wrong with Britney, right? Nobody acting in the court right now would really understand or have a recollection of what happened in 2008 with one exception and that would be uh Judge Brenda Penny. But because of these cases and because
7:52 you're absolutely right that there is such a large amount of dysfunction, expense, delay, frustration, so many things go wrong that I'm here to urge people, especially baby boomers. And this is what uh a tactic I would say is that next year 2026, baby boomers start turning 80. And we as a society are not prepared for this massive entry into retirement, into the court system, into social security, into any of these uh
8:28 into Medicaid. I mean, right now they're even in Washington DC, you know, had spoken about uh defunding parts of Medicaid. We are not ready for this aging population to enter into the government's wheelhouse in in any aspect. So what I would urge listeners is that if you are a boomer turning 80 starting in 1946, that is the time if you haven't done your estate planning, you absolutely need to make a point of getting it done. An estate plan may cost $2,500, $4,000,
9:06 5,000. Conservatorships cost to start the first year about 10 to 12,000 and5 to $6,000 thereafter. And it is pretty much impossible to get out of a conservatorship um because once you've been deemed incapacitated, you can't go back and do that estate plan that you meant to do. So, um, as we think about estate planning and let's just say you're a person that says I don't care who gets it, my kids will get it. You know, let the state decide. You do not want to be
9:42 a conservity, especially in Southern California, but in anywhere in this country. And there's two documents that I'm going to urge every listener, but most especially if you're born in 19, let's say, um, this year 1947, then 1946, as you look at age 80, and please get two documents done. They're cheap. They're easy. You could actually do it without an attorney. You Google the name of your state and then the words advanced healthc care directive. So here
10:19 in California, California advanced healthc care directive and that will bring up a form that you can use to designate who you want to make medical decisions, health care decisions, housing decisions, which doctors that you see, where do you go to live, sometimes even which family members and friends you get to socialize with. The person that you choose will be entrusted unless something goes haywire and it does and we'll talk about that in a minute. But having an estate plan, an advanced healthc care directive
10:57 will at least give you a chance of staying out of probate court. There's another document. It's called a statutory or you could say put in your state statutory durable power of attorney. The word durable has to be in there. The word durable means that even if you reach a point where you cannot make financial decisions for yourself, the person that you designate can continue to act on your behalf. Now, this is not to say that you shouldn't get a trust. Go see a lawyer and set up a trust. Doesn't mean that you shouldn't do a will or anything else, but my focus
11:34 has been conservatorship court because I've been studying it. I've been looking at the the delays in getting help and also how broken the whole system is and how expensive. So planning for incapacity means to me taking at least maybe $500 five maybe $1,000. It is so cheap and it is so easy. And if you know how to write out your name, address, telephone number, by all means, you can probably prepare these two documents. Your state
12:10 California advanced healthcare directive or statutory durable power of attorney. Those two documents can be printed, filled out, go to a notary, and make sure at least the people that you're named have a copy. That's also very important. So, um, any questions so far, K? No. So, so, no. So, I wanted to observe and and and this is, I think, really the crux of of of what you're talking about. So, I I have a friend who, um, like like me, he basically administrates probates and and and
12:45 trusts and he he's figured out there he just here in California alone, the transfer of wealth by baby boomers is is probably 11 figures, right? trillions of dollars over the next 10 maybe 15 years, right? And and and I think when people hear the idea or the term estate planning, they're thinking about that financial part of it, right? But as and and look, my mother, she's um she's in her early 90s now. God bless her. Still going strong, you know.
13:22 My aunt is uh my aunt turned 80 this year or she turns 80 this year I think. I think she was born in 1945. Right. So you know people are living a lot longer and and actually you know can live just regular lives. However, that comes with a responsibility and that is to be a not just be aware of but to take care of these other estate planning obligations that allows a person to, you know,
13:59 continue their life at least as much along the lines of what they want as as they can, right? I know with my aunt, she's she hasn't done an estate plan and now you know my older sister and I are scrambling um you know to you know what are we going to do because you know god forbid you know the doctor decides that she doesn't have capacity so you know you know what's right what's going to have becomes a whole big a whole big thing right oh 100% so people really don't understand or appreciate
14:35 the importance of planning for incapacity, especially in the context of how long everyone is living. And the simple truth is that your brain may not be geared to live as long as the rest of your body. I mean, unfortunately, you know, that people will tend to be more forgetful. It just it's just the way that we're biologically programmed right now. And and let's not even talk about all of the bad habits that we've accumulated with uh drinking, substance abuse, you know, different types of um even medications that tend to affect our
15:11 cognitive abilities. I mean, there are so many factors working against us. But clearly just the fact that our brains age also they they create there's uh a lapse of um synapses. We forget things. I mean, I even see the difference between me and at 40 and me at 60. I mean, even uh pe I'm even laughing at myself now and people say, "Yeah, you told us that, mom." You're wrong. No, not me. But, right, but it's so it's so easy to at least put yourself in a category where you have a fighting
15:46 chance not to be a conservatorship. I tell people I want to be put out of business. I do probably one uh one conservatorship almost a week. It's huge big number and most of it from family members where a loving daughter, a loving niece, nephew, son, a loving relative says, "Yeah, mom never did this or dad never or grandma never did this." And so grandma has a fall, grandma has a diagnosi diagnosis of early on, you know, some type of dementia and then there is nothing that we can do about
16:22 it. Um, just last week I had a very uh very bright young man. I explained to him the conservatorship process for his sister um who had been actually unfortunately abandoned by her daughter. Um, complicated situation. So he said he he hangs up when he finds out like I'm like look it's a $5,000 retainer and just the filing fees meaning just what the court takes is about $1,200 right in California. In other words, you could easily get a get these two documents, the statutory durable power
16:58 of attorney and a advanced healthcare directive. You can pull them off the internet for free. But as soon as you start engaging where where one of your f relatives start engaging with me, it's $1,200 just the first filing fee. Never even mind all and then it's $500 a pop pretty much for anything else that you need to go to court to do. So, I cannot stress enough that even though I agree people should have trusts and put their assets in a trust, I'm not saying that's not something to do if you're a state
17:35 qualifies. And I think the number now is what 200 almost 200,000 as of April 1st. It took a big jump up. Yeah, it's it's I think now the small state exemption is around 750 or something. But but even for family residents for your family resact, which is still kind of a joke here in LA, you can't almost everywhere in California. Right. And if you have any kind of um you know, retirement plan, 401k or whatever that you've put a lot of money into, you know, that that plus your house is is it's going to put you
18:10 over that exemption. Right. So, Right. Exactly. So, so unless your state is very very small um and in which case you know and there are different reasons like you know there are poor what I call a poor poor man or poor woman's estate plan things in joint tenency payable on death I mean you don't absolutely need a trust but the two documents that I would urge every adult everyone and start I mean start I actually would love to campaign for when your birthday has a zero at the end when you're 50 when you're 60, when you're 70, when you're 80, probably by the time
18:46 you're 90, it might be too late, but things can happen very quickly. Um, I've had cases where a woman is perfectly capable, competent, knows exactly what she's doing and began to have a series of TIA and in two months um these small um assaults to her brain, she was completely incapacitated in three months just from a series of of these TAs, these these small um assaults on her brain. You have a stroke, you become intubated. I mean, there's so many things that can
19:21 go wrong so quickly. Well, also for look for anyone who's involved in any kind of I I hesitate to use the term adventure sport because that has a particular but any kind of adventurous sport, you're a skier, uh you're a skateboarder, you know, you could be I mean I used to watch my nephew skateboard when he was a teenager, you know, with the helmet on or whatever. But, you know, really anyone at any age could suffer a traumatic brain injury and and now, you know, they they don't have the capacity
19:56 or they have limited capacity. And so, what's going to happen? So, uh, you know, I I would argue and and and this is not to diminish your message about baby boomers, obviously, and I'm a baby boomer myself, so you know, we're we're kind of on the front lines of this, but even people who are younger, like you said, you know, 30s, 40s, 50s, um, you know, things happen in life, we need to be prepared. And compared to the cost of other types of insurance, right, which which it can be, you know, huge. um you know the the the the the cost of doing
20:33 you know a proper advanced health care directive and a durable power of attorney is it's really right it's minuscule and actually to that point there are some lawyers who would say that they actually have um 18-year-old like in other words that as soon as you become an adult um and so let's just say 20 so maybe the message should be that every time you reach your birthday that has a zero at the end you're going to do your start plan starting at age 20. But you're absolutely right. I do have those cases and it's tragic, but you know, things happen in people's lives all the time,
21:09 whether it's a car accident or something. So, yes, traumatic brain injury is, workers injuries, um, people falling or getting injured at work. Certainly, it's worthwhile for all of us to get this easy document done because there is nothing more heartbreaking than when I get a call from the loving daughter who, you know, lives in the town next door. Mom just had a stroke. Can you get a power of um the doctor says I need a power of attorney? I said, all right, have mom call me. Oh, well, she can't. You know, like she's incapacitated. I'm like, then
21:45 I can't help you any other way. And it breaks my heart because I would say most of the conservatorships that we do can be avoided. Could have been avoided if mom or dad or grandma or grandpa had just taken an hour an hour of time. I mean it because it's nothing. You you can literally Google these documents, find them online. They're in PDF form or fill fillable form and just sit there at the family table. If you have friends, maybe you have one or two girlfriends or or uh companions, print out a bunch of
22:22 them. You all witness and work on it together. Make it efficient. But it is absolutely imperative because the court system is just not prepared for what will be this huge volume of potential conservatorship candidates. And I would say that between what I call the courtappointed attorney system and these delays, I mean, we're peeling off $10,000 a year for people just because they didn't put in place these simple simple documents. Um, so my message is
22:57 put me out of work, please. And you know what? It's so heartbreaking because um the court system can be just so challenging. I mean, if I file a petition for conservatorship today, the first hearing may not be until August. Probably won't be until August. Right. So, we're going to take just a break here for a sponsor and and and we'll be we'll be right back in about 40 seconds. When life brings unexpected changes, managing inherited property shouldn't add to your stress. Magnum Properties
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24:09 So, we're we're back. This is Trust and Estates Weekly, and my guest is Lisa McCarly. And we've been talking about what may be unfortunately the most overlooked aspect of estate planning, which is planning for incapacity. Uh for for that time when I love this phrase that you used, when our bodies kind of are outliving our brains. I think that's a that is incredibly piffy way to put it, but it's so true. Uh, you know, medical science has been able to extend lives, but that doesn't
24:44 mean that our brain health is is keeping up with that. And and in particular, Lisa, you you know, we've been talking about two documents, um, a durable power of attorney and an advanced directive for healthcare. So, if you would for for the folks watching and listening, go in more deeply. What is what does each one of those documents do and and why is it important to have both? Why can't I just have one and you know kind of one and done, right? So, so go into some detail on that if you would. Sure. So, the first document is what we would call a
25:21 um advanced health care directive. And the advanced healthcare directive and I do want to and I'm glad for the opportunity. It allows you first of all to pick someone that you believe would be a good decision maker in the event that you cannot make decisions for your own medical care, for your good health, where you're going to live. We call it it would avoid the conservatorship of the person. So that so meaning that um parts the part of your life which is um your body your health care where you
25:56 live um that agent gets to make those critical decisions. These documents also have other important parts um to it which is number one it allows your agent to make burial decisions for you if you want them to. So you can actually designate what happens to your mortal remains. um at the end of your life and you can allow you can pick someone otherwise the default will be maybe your closest living relative who may not be someone that you are particularly close to. Um I urge my clients when we talk
26:33 about when I talk about planning for incapacity is find a trusting trusted person of the next generation. And that actually is a very important concept for both of these documents. But one of the ways that documents fail to keep us out of probate court, I find, is that we tend to want to name people that are in our uh same age or same generation, but we're all going to get old together. And a lot of times, let's say the sister who might be a little older, a little younger, then you, you know, she's going to have her own issues and um have her
27:10 own care needs and have to go to the doctor for herself, you know, every day. I mean, that's what um some people describe retirement is just now you finally have time to go to the doctors. Thank goodness right now. Um, so I would like to say that sure if you have a sister, a sibling, a best friend in your age group who you're very close to, I'm not going to say don't name them at all, but I would urge you to consider looking around and if there is a person of a younger generation who you trust, who knows you, who knows um who you love,
27:45 who you don't love, who you want to be associated with, um what your life habits are that would th those would be at least two people that I would choose um as a real backup and and actually I've hear a lot of people tell me I just don't have someone to trust in which case call an attorney and I would urge you to consider putting a professional person um as your number three. So you might have your very best friend or your brother or sister who you are particularly close to who's within the same age. That might be a good first
28:21 choice. Always include a person who's younger, has a little bit more energy, and will outlast. In other words, that they won't be in the same boat as you are five years from now or 10 years from now. And then I often put in a professional fiduciary. Um because if you end up in probate court, that may be what you end up with anyone. And anyway, and I would rather someone engage um immediately with people in the in the community who are professionals and um have them at least as a backup. So, you
28:56 will probably never need this person if the two people that you choose are are good and capable, but I rather you meet a professional fiduciary or, you know, someone in the community that you trust as a backup. So, the healthc care directive is for medications where you live, who you socialize with. Um, it allows your agent to dispose of your mortal remains. It also if you are so inclined would allow your agent to make donations um of your body or any part of your body for any purpose. Is it just
29:32 for your eyes to this institution or your body for science for doctors to use? Um and also it allows you to communicate who your doctors are or any preferences that you have regarding your care. Um, I once did a uh advanced healthcare directive for a woman that had been a nurse and she insisted on her advanced healthcare directive that she wanted her hair to be um all cut off. She wanted to basically be bald in the event she was incapacitated. As a nurse, she had observed people getting, you
30:07 know, basically different um the her scalps not doing well. As a nurse, she had a very strong feeling that she would rather not have hair, not have the problems associated with keeping your hair clean in the event that she was incapacitated. I I have my own little special things too like I want this, I don't want that, I you know, like I don't I You can also designate in this document whether or not you want to be what we call DNR. In other words, do not resuscitate or do you want heroic measures? Do you want to
30:43 be kept alive within um any the normal scientific protocol for as long as possible? People have different religious beliefs, but this document takes out that guesswork for the doctor or for the relative who may find who may end up having to deal with you in your state of incapacity or me. So, so that's the first document and again I can't stress enough how important that is for all of us to be on the same page um and and get that done. The second document a
31:18 little more boring. Your durable power of attorney um allows your agent, again, someone that you choose to help pay your bills, to help manage um day-to-day finances, to help pay your income taxes, to file and sign an income tax return. Well, what if you need to sue somebody? What if there's an insurance claim and you're incapacitated? So the financial side of it is basically stepping into your shoes with respect to your finances and all of your legal problems and all and any um problems that we all seem to have with our mortgage companies and so
31:54 forth. But it allows the people that you choose and again same same general rule. If you have a best friend, sibling, someone that you trust who's a contemporary, by all means, you could start with that as a secondary, a younger person that has some financial savvy also. Um, would be important. In other words, not the not the person who says, "Oh, I can't I can't stand paperwork. I don't understand bureaucracy." But perhaps there's somebody that sits at a desk um doesn't mind doing the paperwork. doesn't keeps on keeps on top of things
32:29 pretty pretty well. Um those are the people that you would name and of course if you feel like I don't want to burden my family, which many people do, um speak to an attorney about perhaps adding a professional fiduciary. Um I went to I did a talk just last week and I said, you know, it's probably true in every community in California that you can't throw a tennis ball in any direction and not hit an estate planning attorney. I mean, there's just um so Google your name of your city and also Glendale estate planning attorney
33:04 and Yelp will probably bring up a list of very good qualified people. Um I I I do some estate planning, but you know, obviously if you're in Orange County or if you're in uh San Franando Valley, Glendale area might be too far. I believe in in um being connected to an attorney in your community. Absolutely. You know, I think that's important, too. And there are so many good lawyers out there who are genuinely trying to get the word out. Stay out of probate court. It's broken. It's already crumbling. There the um judges are overwhelmed. In
33:41 fact, we hear regularly that the judges are saying, "We have too many cases." And now with all of the predicted budget cuts, it's not getting better. you know, they're not. It's interesting because just yesterday I was speaking to a friend of mine. We were catching up. We hadn't spoken in a few weeks and I was telling him I was in a hearing on Thursday of last week and for his 8:30 calendar, the judge had over 30 matters he was supposed to hear and he had a I was on his 9:30 calendar, right? So, he
34:16 didn't get to his 9:30 calendar until 10:15 and he only got there because he really had to rush through uh especially toward the end of his by first call calendar. And and by the way, he's a good judge. One of the it was it was quite interesting because one of the attorneys on on his uh 8:30 calendar was basically said to him, "Sir, your honor, would you please make sure you know you read the pleadings for this before the next hearing, blah blah blah." And the judge, I I I tell you that that he didn't lose his temper. I give him credit because he just he said he said, "You know what?
34:52 Most days I'm up until 10:30 or 11:00 reading pleadings." So, the fact that I didn't read your pleadings for this case was because they were submitted late. So, you don't need to ask me to read the pleadings. But, I mean, you know, now that's that's a judge who I think is is particularly dedicated to doing a good job. But even with that level of dedication, he has far too many that he has to hear. It's just it's it's an impossible load. So, I wanted to bring up another um thought and and this
35:27 this is also from a a case I'm handling relative to a durable power of attorney. So, and and and and I think this is to your point and that is um I I think you know people need to be advised to really think carefully and honestly about the people they appoint because I had a situation where a mother we assumed the appointment was valid. We we had our doubts about it, but she appointed her daughter as her as her agent under a durable power of attorney. And her daughter decided that that gave
36:02 her authority to be the executive under what amounted to a fraudulent will. And she engaged an attorney to to um pursue this uh you know, ostensibly on her mother's behalf. and she ended up spending, I would say conservatively, between 20 and $30,000 on a completely fruitless attempt to sustain this will, right? And you know what's what's interesting is the first couple of times I spoke to the
36:37 the the the daughter who had the power of attorney, I got a very bad feeling about her in terms of her honesty, frankly. Um, and I would, you know, I'd be willing to bet the mother kind of knew, you know, this is a child who had never worked and she was already in her 60s and had kind of lived off the fat of the land, right? And I'm not saying her mother shouldn't love her. I I hope she loves her daughter, but when it comes to financial decisions, I think we we need to we need to be as coldly logical as we can.
37:15 Because after all this this is not for the benefit of the agent of the power of attorney. It's for our benefit and we we really need to choose one who understands the kind of fiduciary duty uh that's being handed to them right because otherwise yeah and it and it really is kind of scary. I mean, if we're being very frank, um how unprepared so many people are for understanding fiduciary duty, for understanding, um financial management,
37:50 and how do how do we scoop these people up and you know, and how do we get moms to pick the right person or you know, how do we make people more trustworthy? I mean, it's tough. But here's what my response even more so for those of us that have access to competent, capable individuals. We owe it to the rest of the community to get our estate planning done so that we can stay out of that courtroom. We don't need to be one of the 30 people that a judge has to talk
38:26 about at 8:30 for many of us. And that's what these are the heartbreaking ones where there's like this perfectly lovely daughter or a perfectly lovely son or or a nephew, someone who's around and mom or dad just never got to doing the estate plan as a community. We have a duty to each other for those families with functional adults with with children that have gone out and you know they've they've earned a living or they've you know fighting the good fight in society. We owe it to the rest of the people to
39:01 not be in that courtroom, to not take up that judge's time. And that's exactly the message that I have been going around, you know, lately talking about, which is that if you can um if you are as a citizen, as someone understanding what we will be up against, especially starting next year as our baby boomers start hitting getting into their 80s, you owe it to yourself and you owe it to everyone else around you not to be one of those 30 cases in the 8:30 calendar. Um, I cannot emphasize enough that if
39:36 you have a loving daughter, I mean, how many times do I get that phone call where like, "Mom had a stroke and you know, like we're all here at the hospital and I'm like, it's too late. I can't help you with a power of attorney." you know, and and it breaks my heart and yeah, it makes me upset and angry because I know that that's just one more case that the judge is going to have to like kind of crawl into and crawl through and I I lose control sometimes with courtappointed attorneys. Um, you know, kind of another another fly in the ointment might say. So, we lose control
40:11 of this decision- making process. And why? I mean like go go go to church and stand out. Is anyone here an estate planning attorney? Go to temple. Go to go to a really any anywhere. They're everywhere. Absolutely. We're going to take another quick break and and and and we'll be back in another 40 seconds. Probate and Trust TV, your curated source for the most useful and insightful content on estate planning and trust and probate administration, featuring standout professionals like
40:47 Bill Gross, Paul Bralet, James Cunningham, and yours truly. Whether you're a lawyer, accountant, real estate professional, or working on your own succession plan, this channel helps you quickly find the clearest, most practical content YouTube has to offer. Subscribe now to Probate and Trust TV. Spend more time learning, less time searching. So, we're we're back here at Trust and Estates Weekly. My guest is is Lisa McCarly and we've been talking about
41:22 planning for incapacity. Um and and Lisa has talked about um just the the huge number of baby boomers who who are you know going to start turning moving into their 80s. I'm I'm I'm only turning 65 this year. So I have a little bit longer to go before I do. and and and what we need to do not only for ourselves but for the sake of the other members of our community to to take care of ourselves and especially to keep out of probate court. So, so Lisa, I was going to observe um um right before the uh the
41:59 last break is when I was in the Navy and uh when I was going to be deployed or when any of my colleagues were going to be deployed um whether it was Navy or the Marine Corps, we were required to do certain things and and among them were to have a will. People in the military generally speaking don't have huge assets number one. But number two to do a durable power of attorney because you know God forbid we got hurt or worse while being deployed. In what situation
42:34 were we leaving our families if we didn't take care of those documents? Now the thing about the military is of course they can say we're ordering you to do these documents and so you will do them or you will you know get into trouble right so as a society we we don't have the ability to do that to pe you know do that with with people um but on some level I think this is a lesson that uh you know our our our my fellow you know civilian citizens if you will um could learn from, you know, from
43:10 people who have been in the military, which is you don't and and the, by the way, these are all young people. Some of them are. Oh, yeah. No, I we're a military family here. Oh, okay. Right. So, yeah, you know, we're it does there's no exemption just because you're, you know, 18 or something like that. You do it because it's the right thing to do. and uh and and so I think that you know your efforts to instill that same kind of that same ethos right in in people in general uh really you know is it it it is admirable. So, so let me ask you, beyond the the two
43:46 documents that we've been talking about throughout the show, the um um advanced healthc care directive and the durable power of attorney, what are there other documents related to dealing with incapacity that that we should be thinking about? Um maybe they're not as crucial as those two, but uh it, you know, they they may be relevant. um you know for example if we have children who are you know they're still minors or or things like that what what other you know preparations might we be need to
44:21 think about you know as as we you know deal with this situation well when you talk about the situation in terms of incapacity or making health care decisions what I would also urge people to do is um talk to their doctors and think about what's called the PULST, which is a document where now seems to be very coming up more more frequently, a document designating what medical treatment that you do or do not want to have towards the end of your life. Um, and that's generally I don't prepare
44:58 those, but a lot of people have presented them to me from a nursing home or from a hospital when the critical uh need arises. Um so certainly there's used to be what called a living will. Um okay those are very that those are important probably not as important as the um advanced health care directive but those certainly are hospital the hospital may have those. Um interestingly enough if you happen to have Kaiser Permanente they have a really good form that they have people fill out. Um, so instead, which is
45:36 basically their form of an advanced health health care directive, where they even ask you questions like, you know, at what point do you want to discontinue having care when I no longer recognize family members when I'm no longer able to feed myself? So, they actually go through um a lot of question. Who do you who do you consider to be important in your life? Like who who should be able to see you? Um, so any of those medical care related documents certainly should be reviewed. Oh, and by the way, don't put them in your closet where no one can find them. Make sure make sure you get
46:12 copies of it to a doctor, to the hospital. Um, you know, I'm going to have minor surgery and you know, that's one of the questions that they asked. Do you have a advanced healthcare directive? You know, it's like my toe, right? And um so you know of of course um but I would definitely um if you have a good good health care system as I said Kaiser has it Permanente has their own form. I love their form um much more detailed um and it gives you a chance to kind of express who you're close to who you want involved in your decision making. So those to me are you know
46:48 again those are critical those are good add-ons. Um, but nothing is going to work as well as what I call a well seasoned or aged healthcare directive. In other words, something that you've done that's not four or five years old, 10 years old, and you've looked at it repeatedly, you you've updated it. Judges love that because it means that even if there's someone else who's not in your in your uh family who wants to kind of attack. So, let's just say that you have um three children, two that you're close with, one that you haven't
47:23 spoken to. Sometimes this is a c circumstance where things get a little um a little ugly between family members. But if a judge says, "Look, your mom had Bob and Sandy listed as her agents for the last 10 years," you have a better chance of getting that upheld as opposed to having a situation where you did it last year and now you have this diagnosis and there's something questionable or dubious. Um, judges also seem to like it better when there's an attorney involved. Um, can't blame them.
48:00 Uh if you have a very straightforward situation where you have two children or a child, one child, two children that really like each other, you all get together for Thanksgiving and the holidays and birthdays and everyone is very close. You might be able to do these things by yourself. Um, I'm not a real big fan of do-it-yourself or parallegal type entities, but it could work if if it really is a matter of not wanting to spend the little bit of money um in advance. Having said that, judges again just they have a preference to
48:35 know, okay, well, you went to see a lawyer four or five years ago. This is an expression of your intention when you were competent, when you had proper legal counsel. So, um, those to me are the more important aspects of getting your wishes upheld. Um, and so, Kevin, how much more time do we have? We have about five more minutes. All right. So, let me just scare you a little bit to readers in the audience. Conservatorships, not just Britney Spears, become toxic because all of your assets will need to be listed in a
49:12 public inventory. If you can imagine the public once you once you are a conservity everything that you own will very very likely be listed out on a document that any member of the public can have your family squabbbling will be list will all be made public. Um, but let's say that you live in a house and you need to be placed. Your your child daughter will need to file a petition to get authorization to sell that house. That's another $5,000. In other words, all of
49:48 this money just keeps ticking away, feeding the beast of conservatorship when really it could be used to take care of you. It could be used to pass along a legacy to your children. Um, sometimes it is absolutely necessary to have a conservatorship and it's circumstances out of your control, but for many of us it was just a matter of not bothering to see a lawyer and not bothering to download and fill out these forms. And we just cannot sustain that as a society when we are already with judges, you know, looking at 30 cases in
50:25 basically what should be the course of 90 minutes, right? It's ridiculous, right? three minutes per case. So, um, and I can't say enough, um, how important this is right now. It keeps me up at night just thinking about the silver tsunami and the frustrations that we have in probate court. We were I was in probate court, uh, conservatorship court on Friday and, um, this woman had been victimized in one of those, uh, telephone scams where, um, somebody presented himself as an actor. I think it was Mark Harmon or you know George Clooney. So and she this
51:02 poor woman believed that genuinely believed that she was in a relationship with this actor and we could not shut it down. The judge basically said, "Oh, if that's what she wants to do with her money, she wants to be a victim of crime. Let her be a victim of crime." I mean, it's so unpredictable. That was I mean it's just I'm just that's beyond the pale, right? So, but had she done some estate planning back in the day, her two lovely daughters, darling daughters, just wanted to
51:37 protect their mama from this exploitation and predation. All she had to do was sign this piece of paper and and this embarrassment, this humiliation would not have happened. But um these are the things that we're seeing very broken and we we unfortunately we're we're not going to have time to do this. I'll have to have you come back. But you know elder abuse is such a huge an enormous problem, right? I mean I saw this when um when my mother-in-law after her husband died and
52:12 here's know she was of the you know the the uh you know the World War II generation. So, here's a woman who generation, pardon me, the great generation. Great generation. I was trying I'm trying trying to think of the term. Um, she was almost 90 when her husband died and came from a generation of women who for the most part did not engage in business matters just because that's just not that was how society was. Good or bad, that's just how it was, right? And people were showing up at her door trying to get her to sell papers, sign papers to sell her house. Yeah. Right. And I would go visit her periodically to help her. Um, and she
52:48 would hand me these and and I I I I finally said, "Marie, you'll you'll hear me I always tribute her at the end of the at the end of my shows. I said, "Here, Marie, here's a stack of my business cards. Anybody who comes to your door, you hand them, please hand them one of my cards and say, "My my son-in-law will be happy to speak to you, but otherwise, please leave me alone." And at least that way she had some kind of defense for these these people who were just Look, I'm sure some of them were legitimate. They were just, you know, walking the neighborhood looking for listings or whatever. But but some of them were almost for sure predatory.
53:24 And that's a whole another reason why we don't, you know, we don't want to leave ourselves vulnerable. Um because getting older, our friends are dying. We're lonely. We're so vulnerable to becoming prey to all of these. It's it's and and it's not, you know, and it's not just ladies. I mean, um it is I mean certain I've even heard of lawyers, you know, that have gotten caught up in scams. It is it is a very brutal world out there. And so, um as we think about getting older, I mean, be as close as
54:01 you can to people that you trust. and um and it's it's a tough world out there. So for my message for people that do have are blessed with families and younger relatives and caring environment, take advantage of that. Take advantage of that and please do your estate plan because there are actually many people out there that simply don't have that P. they've they've um immigrated from foreign countries and lost track of family and friends and and there may be no other solution. But um the number one thing we
54:38 all owe ourselves is gives ourselves a fighting chance to stay out of probate court. Absolutely. Well well Lisa, unfortunately our our our time is up, but but I I can't thank you enough for coming on the show today and talking about these. They they as I said in the beginning, they just get far too little um uh discussion and and as you saw I I one of my ventures is called Probate and Trust TV where I I curate as much of the content on on uh YouTube as I can find on these topics. Rarely
55:14 are people dealing with this issue. So you you are unfortunately I don't want to say you're a soul warrior, but but you you are a lonely warrior on this topic. So I really appreciate you coming on the show and and I I think that um unraveling what was done to Britney Spears really focused me gave me lightning lightning focus on um just what a broken system it really is. And I I owe it to my fellow man and woman, my fellow boomers. like I'm I'm your I'm, you know, I'm your little sister. I'm your You're the baby baby. Yeah, I'm the baby, right? I
55:50 call myself Boomer X. I actually kind of relate more to Gen X. I'm like, I'm your baby sister. Please get these things done, taken care of. Um I don't want to ever see you in probate court because you know that that's it's just such a toxic place to be. As I'm gonna do a quick wrap up here and then we'll go offline and we can chat for just a couple of minutes. So, so folk those thank you so much for joining us today. I know I I saw a number of of of people watching live kind of cycling through and it's always a treat to know that there are people um
56:25 out there watching us. Uh and if you have any questions, comments, um all the social media um uh links to all the social media will be in the show notes. I will also put Lisa's contact information um in the show notes. So, if you'd like to get in touch with her um you'll be able to do so. Um and and you know, if you're if you just don't know where to go to find uh an estate planning attorney, you can always uh shoot me um an email or or or direct
57:00 message me and I will be happy to make some referrals to you. As you might guess, and as you've seen on the show, I have I I know quite a number of estate planning attorneys across the country, and I I'd be happy to to make a referral. Don't let that hold you back from taking Lisa's advice. And uh I don't want to make the offer on your behalf, Lisa, but I suspect if you were to contact Lisa and you needed an estate planning attorney in some other community, I I suspect Lisa would be happy to help you with that as as well. Right. Um, just quickly on that point, um, any county in California probably
57:36 has what's called a lawyer referral service. So, one of the easiest ways to do it, your county, so Los Angeles, Orange, lawyer referral service, and they'll give you either uh, email or phone number will come up. Easiest thing you could ever do. There you go. There you go. Now, tomorrow at 10:00 a.m. Pacific time is my show, Business Lessons from the Military. And uh I had a last minute guest cancellation. Oh. Oh. So I am going to be talking about an absolutely fascinating incident in World
58:11 War II history called Operation Minsmeat. So if you if you're a World War II buff, you may have heard of this. If you if you haven't, I invite you to tune in. There are some some great business lessons we can learn from this really astonishing uh it was almost like a confidence u um game that that the allies pulled off to try and fool um to try and fool the the axis. And then on uh Wednesday at 10:00 a.m. is my show People Making Money. And I'm going to be talking about where and
58:46 how you can get the knowledge you need to start a business. Right. We everybody I not everybody so many people I talk to say or think, well, I've got to have an MBA to start a business. I I don't I disagree with that. In fact, one of the best pieces of advice I ever got as a young man was don't get an MBA. Uh and and and in fact, he advised me of to get a law degree instead. I wish I had listened to that advice because it would have helped me even more as my career developed. So that's 10:00 a.m. Wednesday, people making money. All those times of course are uh uh Pacific
59:21 time and then a week from today we'll be back with I'll be back with the next edition of Trust and Estates Weekly. So Lisa, one last time, thank you so much for being on the show. Really appreciate it. And thank you again all of you for watching and signing off as I always do. Marie, you are and ever will be my bell. Courage at all times my friends. Thank you, Kevin.