5 Things to Consider if you Have Aging Parents or Family Members

As the “Baby Boomer” generation approaches retirement, and health care costs continue to rise, parents are moving in with their children with increasing frequency.  I would like to pose the following five questions to anyone who may find themselves dealing with an aging family member:

1. Does your family member have any planning done whatsoever?

Have they done any planning in writing, such as a professionally drafted Will or Trust?  If so, when was the plan last reviewed or updated?  Is there a current list of assets?  Where should the assets go upon death?  Who will be in charge of overseeing these gifts?  Should these gifts be administered privately, or by Court Order, as part of a Probate Proceeding?

2. What is Probate?

Probate Court is necessary when someone dies with assets that are still titled in their own name.  For example, if I am single, and own a home and car, and die tomorrow, those items are still titled in my name.  These assets will remain perpetually titled in my name, even after I am gone.  Those assets are therefore “stuck” in my name.  I cannot transfer them, nor can my “power of attorney” transfer them. Thus, probate is often the only option to get those assets "unstuck" out of the name of the deceased.

Probate Court can be avoided, with proper planning.  Probate Court may likely cost 5 - 10% of the total probate estate, and usually takes one year, or could take several years in some cases.  It is also a public proceeding that anyone can get information on, including creditors and estranged family members.

A Last Will and Testament alone DOES NOT avoid probate.  This is a common misconception.

3. What is a Revocable Living Trust?

A Revocable Living Trust is one of the most flexible means of avoiding probate.  Setting up a Trust involves determining who you want to be in charge of your assets upon your death or incapacity, and selecting your beneficiaries upon your death, in addition to any other special instructions you may have.  Through re-titling your assets into the name of the new Trust you just created, your estate plan avoids probate, and can address special circumstances in your family, such as minor children or deferred inheritances.  A Revocable Living Trust will likely save you Thousands of Dollars in the long run, as opposed to letting your assets to go through the Probate Court.

4. Has your family member created a Financial Power of Attorney?

A Financial Power of Attorney states, in writing, who will have power to make financial decisions if your loved one is alive, but becomes incapacitated.  This is the single most overlooked legal document, period.  Simply being married does not give a spouse the right to sign a spouse’s name to financial or legal documents, nor does being a child or family member bestow these rights.  This document is extremely important to have done properly.

5. Does your family member have a Health Care Power of Attorney or a Health Care Directive?

A Health Care Power of Attorney works just like a financial power of attorney, except it governs health care decisions.  This document states “Who” would make health care decisions, if your family member becomes incapacitated. 

While a Health Care Power of Attorney says “Who” will serve if one becomes incapacitated, a Health Care Directive states “What” will happen in certain circumstances.  Essentially, a health care directive asks the question: “If you could have certain treatments that would NOT cure you, but might make you live longer, would you want any such treatments?  If so, which ones would you want?

I hope that you will talk with your aging family member about these issues.  This conversation could save years, thousands of dollars, and a lot of stress and anxiety.  Keep in mind, also, that there is a such thing as being “too late”, if a family member becomes incapacitated or passes away.  I regularly meet people that have waited too long, until it was too late to do any planning. 

For those who do get this taken care of, the single most common sentiments that I hear when we finish an estate plan is “This feels like a weight has been lifted off of my shoulders – I have been putting this off forever", or "If I would have known that it was this easy, I would have taken care of it years ago!” 

We offer a free consultation, where we can evaluate your situation, answer your questions, and go over costs before you decide to hire us.  We truly do pride ourselves on doing an excellent job, being compassionate and professional, and trying our best to be conscious of our costs.  We typically can offer a reasonable flat rate, as opposed to an hourly fee.  We also handle other legal matters, such as Asset Protection, Business Law, and Cooperative, Uncontested Divorce, among others. 

You are welcome to call me personally at (417) 882-5858, email me at PiatchekLaw@gmail.com, or visit us on the web at www.OzarksLawFirm.com.

Joseph J. Piatchek

Attorney and Counselor at Law

THE PIATCHEK LAW FIRM, LLC

Safe Family.  Strong Business.  Secure Assets.

Five Mistakes Business Owners Make

I love business, and I love business law.  I practice in several different areas, but there is nothing like watching a small business start from scratch, and then mature, and thrive.  I love meeting with new or future business owners.  Sometimes they have a lot of questions; sometimes they are so overwhelmed, they don’t know where to begin, and don’t even know what questions to ask.   I love to watch businesses, and their owners, grow and change over time.  I love success stories.  I am lucky to be in a position to witness success stories everyday.

Unfortunately, not all businesses thrive or succeed.  In fact, many businesses fail, sometimes in the first year.  There are a lot of reasons businesses may fail.   It may be external forces out of the control of the owner, such as the economy, health concerns, or family concerns; other times it may be poor choices by the business owners themselves.

I have made plenty of mistakes as a business owner, all business owners make mistakes.  However, there are certain mistakes that I see business owners make over and over again, like clockwork.  I have compiled a list of Five of those common mistakes that I have seen repeatedly – there are more than five mistakes that I see routinely, but I want to focus on just the following five.   Perhaps something will sound familiar, and reading this may help you in some way.

1. Do-It-Yourself Counsel.  Perhaps you have heard the old phrase “The man who represents himself has a fool for a client”.  While I understand and appreciate that folks want to save time and money, and want to handle things themselves, the bottom line is this:  Hiring an attorney is almost always less expensive than NOT hiring one.  Every single week, without fail, I meet with people that have unnecessarily cost themselves a lot of time, money, and frustration, by trying to do it themselves.  Saving $200 to have an attorney review a simple contract is now costing them several thousand, due to mistakes that would have been caught.  The services of a good attorney will save you time and money.
   
   
2. Not talking with their CPA.  Just as not seeing your attorney can cost you, not seeing your CPA can cost you big time.  A good accountant or CPA can actually save you money, and pay for themselves several times over.  Just one example: many small business owners may be better off taxed as a S Corporation, rather than a partnership or proprietorship, and are paying in large amount of self employment tax.  LLC’s CAN BE taxed as an S Corporation, many of my clients do this.  Your CPA can discuss this issue, and many others, and save you money in the long run, and sometimes in the short-term. 

3. Lack of Succession Planning.  Individuals need an estate plan; business owners need a succession plan.  Just like I advise every person that they need to have their will and trust in order, every business owner should have a plan in place if they were to become incapacitated or pass away.  If you are a small business owner, who would run or own the business if you died, became incapacitated, or wanted to retire?  For medium sized businesses, what happens if a Key employee passes away, or leaves for one of your competitors?  A good succession plan can ensure the continuity of the business, and the future of the employees and customers though changing times.

4. Not Knowing What The Business is Worth.  If you did want to sell or retire, do you know what the business is worth?  If you have a succession plan in place, or thinking about entering an agreement with a key employee or even a competitor, you need to know what the business is worth, or what appropriate buy-in amounts are.  I hear from small business owners frequently “Oh, my business isn’t worth too much”.   Do you know that for a fact?  Why not have your business valued?  The results may shock you.  If you knew that your business WAS worth something, might that motivate you to put your succession plan in place?

5. Not USING the Business Entity They Set Up.  Last but certainly not least, this is one of the most common and unnecessary mistakes business owners make.  Along the same lines of the “Do-It-Yourselfers”, many times someone will set up their own business, perhaps an LLC or a Corporation.  Then, when it comes time to enter into contracts with vendors, with clients, or other parties, the business owner enters into and signs the contract as simply “John Doe” (personally), rather than “John Doe, President, Doe Enterprises, Inc.”  What good is having your LLC or Corporation if you don’t use it?  It the first circumstance, if something goes wrong with the contract, John Doe will be sued personally, because he was the party to the contract, and signed personally.  In the second circumstance, if “Doe Enterprises, Inc.” was the party to the contract, and John Doe signed as “President”, then the Corporation itself is the party to the contract – and if there is a contract dispute, the Corporation gets sued - not John Doe Personally.

Joseph J. Piatchek is the Managing Attorney at The Piatchek Law Firm, LLC.  Joe practices in the areas of Business Law, Estate Law, Asset Protection, and Uncontested Family Law matters.  He can be reached at (417) 882-5858, by email at PiatchekLaw@gmail.com, or on the web at www.OzarksLawFirm.com.

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