Author Archives: Daniel Eccher

About Daniel Eccher

Attorney Daniel J. Eccher enjoys helping clients figure out how to afford long-term care while having something left for their family. He also enjoys helping couples establish estate plans such that their children will be provided something upon the couple’s death. Dan has a particular interest in estate planning for same-sex couples. He has been in legal practice in Maine since 2014.

Demystifying Estate Law “Legalese”

Posted on January 15, 2019

Many people – even lawyers – have trouble understanding some of the vocabulary of trusts and estates law. The basic documents are these three:

  1. Will (sometimes called one’s “Last Will and Testament),
  2. Power of Attorney, and
  3. Advanced Health Care Directive.

A more complicated estate plan may include a Trust as well. Each of these documents has a “fiduciary” that the signer names: in the Will, you can nominate a Personal Representative (formerly known as an “Executor” or “Executrix”); in the Power of Attorney and Advanced Health Care Directive, you can name the “agent;” and in a Trust, you can appoint a Trustee. Very often, the person(s) named for each role in each document is actually the same. The fact that the agent under Power of Attorney (which only remains in effect during the signer’s lifetime) and Personal Representative named in a will is often the same person, people often get confused as to the proper term at any given time (and it can get even more confusing if the same person is named as a Trustee of a Trust).

The way I sort it out in my head is to think about what document contains what role. It is also helpful to think about what time period applies. For a Power of Attorney, the agent named in that document only has authority during the lifetime of the “principal” – the person who signed the document appointing the agent. For a Will, the Personal Representative nominated in the document only gains his or her authority upon being appointed by a Probate Court to administer the estate of someone who has died. For a Trust, the Trustee’s role starts once both the Trust Agreement has been signed by both the “Settlor” (the person establishing the Trust) and the Trustee. (To complicate things further, sometimes a Trust is “testamentary” – that is, established in a Will. The role of Trustee of a testamentary Trust only starts after the testator – the person who signed the Will – has died, and it is likely that the Trustee of a testamentary Trust would not have much to do until several months after the testator’s death, so that the probate estate can be administered.) (Complicating matters even further, if the person who died had minor children, the Probate Court may need to appoint a “Guardian” for them and a “Conservator” or “Custodian” to handle their inheritance. Many Wills include testamentary Trusts for the benefit of minor children; in which case, the need for a Conservator is less likely, as the Trustee of the Trust would likely be able to cover this role.)

Let’s review. In a Power of Attorney, you can name an “agent” who can help you with your finances during your lifetime. In a Will, you nominate a Personal Representative of your estate. In a Trust document, you name someone to serve as a Trustee. If you want further clarification of these roles, just let any of the attorneys at Levey, Wagley, Putman & Eccher, PA, know. We would be happy to help.

Guardianship Nightmare Unlikely in Maine

Posted on November 21, 2018

A recent issue of the AARP magazine included an article about guardianship abuse. It featured a story of a woman whose life was taken over by a professional guardian, who placed her in an institution and cut her off from her only family – a stepson. In her case, the process of unraveling the guardianship and getting her a more appropriate placement took years and depleted most of her savings. The article uses this worst-case scenario to make some valid points about the need for research, reform, and oversight of the guardianship system nationally, and in a few states in particular. A former law school professor of mine, Nina Kohn, now at Syracuse University, was quoted as saying, “[A] subset of guardians act in ways that violate the rights and insult the humanity of those they serve.”

I do not think that the nightmare scenario described in this article is likely to occur here in Maine. That’s not to say that it couldn’t happen – but it seems unlikely for a number of reasons. First, I don’t know of many professional “Guardians” in Maine; my impression is that the vast majority of guardians and conservators in the state of Maine are family members of the incapacitated person. Second, this nightmare scenario – where a distant family member is blocked from the process, a professional guardian seems more intent on lining his own wallet than in the welfare of the incapacitated individual, and a facility is at least incompetent, if not outright complicit in the scheme – seems to require a number of  factors coming together at the same time. Of the small number of professional guardians/conservators in the Maine, I dare say the vast majority of them are reputable and trustworthy.

Under Maine’s current guardianship and conservatorship statutes, most family members of an allegedly incapacitated person must be notified that a petition for guardianship/conservatorship has been filed with one of the county Probate Courts. All of the Probate  Court judges and Registers in the State of Maine are careful about being sure that all the people who must receive notice of a petition have, in fact, received notice, before granting even a temporary guardianship or conservatorship. Furthermore, the revision of the Probate Code that was passed by the Maine legislature last year and goes into effect in the summer of 2019 has more notice requirements than the current statute; that is, more people will be entitled to notice of a petition for guardianship under the soon-to-be implemented statute than under the current statute. For example, under the new version, a “person known to have routinely assisted the respondent with decision making within the 6 months before the filing of the petition” must be notified. (It is not clear from the AARP article whether the stepson would have fallen into this category, but it seems likely.)

Although the scenario in the article linked above seems unlikely to occur in Maine, you may want to consider preparing an Advanced Health Care Directive, in which you nominate someone to serve as your guardian should you need one. You may also want to name an agent under Power of Attorney to handle your finances for you if you are unable. Any of the attorneys at Levey, Wagley, Putman & Eccher, PA would be happy to discuss these documents with you. Interested? Give us a call!

Is the Estate Properly Insured?

Posted on July 26, 2018

A recent Maine Supreme Judicial Court decision should serve as a cautionary tale to beneficiaries of any estate involving real estate. Make sure any improvements on the real estate that are part of the estate are properly insured, and don’t assume that a homeowners’ policy bought by the person who died will cover the home after his or her death.

In this case, Estate of Carol G. Frye v. MMG Insurance Company, the person who died, Caroll Frye, had given the home to his sons reserving a life estate to himself (the right to live there till his death). He then bought an insurance policy that covered his personal property and his interest in the real estate. His interest in the real estate terminated upon his death, so the insurance policy only covered his personal property after his death. About three months after he died, the house burned to the ground. Mr. Frye’s sons asked for payment to the estate for the replacement value of the house, but the insurance company only paid the estate for the value of the personal property loss.

The sons challenged the insurance company court. The trial court granted the sons’ motion for summary judgment, but the Supreme Judicial Court reversed that decision, siding with insurance company.

The take-home message is, if you are the beneficiary of an estate that includes real estate with improvements, make sure any homeowners’ insurance covers any and all losses to the estate and, if not, figure out how to modify the existing policy or secure a new one.

If you don’t know whether the policy you have covers what you need it to cover, we would be happy to review it for you.

“Finding your Feet” – Planning for Incapacity

Posted on April 21, 2018

I went to see the movie “Finding Your Feet” at Railroad Square Cinema in Waterville yesterday. Why does a feature film get a mention in my blog, you wonder? Well, without giving too much away, the film was a wonderful celebration of life and chance for renewal – even later in life. Also, one of the characters suffers from Alzheimer’s disease. (For more about the movie, check out the New York Times review: https://www.nytimes.com/2018/03/29/movies/finding-your-feet-review.html.)

Among the many sad aspects of Alzheimer’s is the loss of one’s capacity to make legal decisions. The potential loss of capacity – not only from Alzheimer’s, but a stroke or a freak accident at any age – is one of the reasons we recommend that almost everyone should prepare a durable power of attorney and advance health care directives. If someone loses capacity without having prepared either of these documents, it can be very difficult for loved ones to handle the person’s affairs. Often family members end up having to go to court to get a guardianship or conservatorship, a much more time-consuming, difficult, and expensive process than preparing power of attorney and advance health care directives ahead of time.

Another issue related to Alzheimer’s disease is the high cost of care. In “Finding Your Feet,” part of the story was that the husband of the character with Alzheimer’s disease had to sell their house to pay for her care. In Maine, Alzheimer’s care can cost as much as $10,000 a month, and many people live with Alzheimer’s for many years. Unfortunately, Medicare usually does not cover this type of care. Medicaid often does cover institutional care for individuals with Alzheimer’s disease, but the eligibility rules can be difficult to figure out.

If you would like advice about either planning for incapacity or paying for long-term care or both, give us a call at (207) 377-6966.

My Spouse Just Died – Now What?

Posted on February 7, 2018

by Daniel J. Eccher, Esq.

The period immediately following the loss of a loved one can be overwhelming emotionally. The most important thing to figure out immediately is how to carry out your loved one’s wishes as to organ donation. Next, get in touch with family and close friends – the people you don’t want hearing about it from an obituary or the media, the folks you turn to when you need support. Then, you need to make arrangements for the body. Did he or she want to be buried or cremated? If the latter, what did he or she want done with the ashes?

If you don’t know what funeral home to use, you may want to ask friends and family for advice.

The next step is planning for the ceremony (if any). Did he or she want a religious or secular ceremony, or perhaps just a “Celebration of Life” party? If he or she was a veteran, the VA web site has lots of information about options: https://www.cem.va.gov/funeraldirector.asp

Once the ceremony is arranged, you’ll want to let people know when and where it is. Usually people announce it in a formal obituary. If you don’t feel up for that, you can ask another family member or close friend for help. Alternatively, you can just use a simple announcement.

After the funeral, you’ll want to start thinking about the legal effects of the event. You’ll need more than one copy of the death certificate (I would recommend getting at least three). Next, you’ll need to inform the Social Security Administration, insurance companies, and banks. Then, you should consider contacting an experienced probate attorney. If you don’t already have a relationship with one, we would be happy to consult with you.

For a list of things that we will need, check out Ms. Wagley’s blog post on the topic here:

https://leveyandwagley.com/probating-an-estate/how-to-probate-an-estate-in-maine

For a more thorough checklist of what to do after the death of a loved one, follow this link:

https://www.aarp.org/home-family/friends-family/info-06-2012/when-loved-one-dies-checklist.html

Do you want to make some of this process easier for your loved ones before you die? Check out our page on estate planning: https://leveyandwagley.com/estate-planning-and-probate