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Many & LoCoco Legal Blog

Monday, May 4, 2020

The Law of Usufruct in Louisiana. What is it?


When a person owns property in full ownership, all three principals of ownership rest in that person. Those principals are: 1) They have the right of possession; 2) the income derived from it 3) and the right to sell, lease, mortgage or otherwise transfer the property. Property in this context means any asset, not only real estate. 

In Louisiana, a person can grant the right of usufruct over any type of property. When this is done, then the rights of full ownership are split into usufruct and naked ownership, with the three principals of ownership being divided among them

The usufructuary is the person who owns the usufruct.


Read more . . .


Thursday, April 9, 2020

Living Wills, Healthcare Powers of Attorney, and DNRs Explained


With everything going in the world today, you will hear people speaking about three types of documents that you may be unfamiliar with or you or not exactly sure what they are and what they do. These three documents are:

 

  1. Living Will or also called an Advance Medical Directive.

  2. A Medical Power of Attorney or sometimes called a Healthcare Proxy.

  3. A DNR – Do not resuscitate order.

 

In this brief article, we will look at each of these in a little depth.


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Wednesday, April 8, 2020

Why Louisiana has Parishes Instead of Counties?


After watching a national news reporter consistently use Orleans County for days in a row, I decided to shed some light on why New Orleans has parishes instead of counties. By the way, the only State besides Louisiana not to have counties is Alaska, which has "boroughs".

The reason why Louisiana does not use the term counties dates back to a bygone era and to the first settlements in this State. Louisiana was officially Roman Catholic under the rule of both France and Spain. The initial boundaries dividing the territories of what is now Louisiana generally coincided with church parishes.


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Tuesday, March 31, 2020

Remote Notarizations

Please be aware that - although with the emergency declaration by the Governor of Louisiana which allows for certain Notarial acts to be done electronically under specific guidelines - the declaration by the Governor DOES NOT APPLY to Wills and Trusts and other legal documents which require witnesses and the Notary to all be in the physical presence of the signor. So, if a lawyer sends you a copy of your Will and/or Power of Attorney and says to sign it and email or mail it back to him/her, IT IS NOT LEGALLY VALID, as it was not signed in the presence of the Notary and witnesses. As you know, Louisiana has very specific rules regarding notarial Wills and authentic acts which requirements still need to be met even while in the midst of a pandemic.

Chip LoCoco
New Orleans Estate Planning Attorney


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Saturday, March 28, 2020

The Stimulus Passed. Now Beware of IRS Scam Phone Calls.


With the passing of the stimulus bill, please, particularly for your parents and grandparents, be aware of IRS scam calls asking you to provide banking information so you can receive your stimulus check. Please remind your loved ones that the IRS rarely calls individual taxpayers, and when they do, it's usually well after the taxpayer has received written notice of whatever issue the taxpayer is handling. You should treat any phone call out of the blue from someone claiming to be from the IRS as a SCAM, and provide no information to them. If you would like to confirm with the IRS that there is no issue, you can call the IRS directly at 1.800.
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Thursday, March 26, 2020

Cover-19 Update


 

We hope everyone doing well in these crazy times. Just a quick update.

 

My office is open, while we are working remotely. Please feel free to call the office number to set up a phone conference with me. For existing clients, if you need certified copies of Wills, Powers of Attorney, or Living Wills, please call and let us know as we do have access to all of those files.
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Tuesday, February 11, 2020

How to Leave Gifts to Step-Children

Today, blended families have become increasingly common, and many individuals have step-children, that is, children of a spouse. In situations where step-children have not been legally adopted, however, they do not have a legal right to an inheritance from a step-parent. For those who wish to leave step-children part of their estate, it is necessary and a must to include them in an estate plan.

The easiest way to leave gifts to step-children is to name them in a will. As with any other gift, they can be given a percentage of the estate, or specific gifts. If there are other children involved, it is important to avoid confusion by naming each child and step-child by using their individual names, rather than terms such as "descendants," "heirs," or "children."

There are also a number of estate planning tools that can be utilized to include step-children in an inheritance. If the objective is to avoid probate, for example, a revocable living trust can be established in which a step-child is named as a beneficiary. Moreover, it may be necessary to provide for a disabled step-child who is eligible for public benefits by establishing a special needs trust. Lastly, a step-child can also be named as a beneficiary in a life insurance policy.

While there is no legal obligation to leave step-children an inheritance, it may be the best choice for those who have a close relationship, or played a significant role, in raising them. However, this will reduce the amount of assets available to other children and beneficiaries. Because blended family relationships are complex and subject to emotional challenges, it is important to explain these decisions with all family members.

And in Louisiana, in particular, close attention must be paid the our laws of Forced Heirship and how  those laws will come into play in your estate plan relative to your children and your step-children.

By engaging in an open and honest dialogue, you can minimize the potential for strife and the possibility of a will contest. In particular, it is important to clarify why you gave each recipient a gift, the selection of your executor, and your thoughts about the family.  Lastly, you are well advised to engage the services of an estate planning attorney who can help ensure your wishes regarding step-children are carried out.

Chip LoCoco

Attorney at Law

Many & LoCoco


Wednesday, January 29, 2020

What is the Medicaid Lookback Period?

Medicaid is a healthcare program jointly operated by the individual states and the federal government. Medicaid is designed to help individuals with limited income and resources pay for healthcare costs including nursing home care, assisted living, or in-home care. However, qualifying for Medicaid can be difficult. While eligibility is state-dependent, there are generally four key requirements: (1) you must be 65 years of age or older, permanently disabled, or otherwise qualify depending on your specific state’s class requirements, (2) you must be a resident of the state in which you are applying, and either a U.S. citizen, permanent resident, or legal alien, (3) your income must be within your state’s income limitations, and (4) your assets must be within your state’s asset limitations.

To help individuals qualify for much-needed Medicaid coverage, multiple strategies exist to reduce one’s income and assets to the state threshold without adversely affecting the individual’s life. These include gifting assets to family and friends, transferring assets to a spouse, and investing in exempt assets (exempt assets are assets that do not count as “assets” for Medicaid purposes – most states allow certain home values to be exempt).

To avoid individuals taking advantage of these strategies at the last minute to qualify, however, the federal government implemented a “lookback period.” This is a period of time for which financial transactions involving the applicant will be reviewed. The purpose of the lookback period is to identify assets, such as money or cars, that may have been gifted or sold below market value in an effort to reduce the applicant’s assets to within the state’s Medicaid asset limitation.

For all states except California, the lookback period is 60 months (5 years). For California, the lookback period is 30 months (2.5 years). The lookback period begins on the day that the individual applies for Medicaid. Thus, when an application is filed, the government will review all financial transactions to look for transactions that violate Medicaid eligibility provisions, such as certain gifts and transfers.

If the reviewing agency identifies transactions within the lookback period that violate the eligibility rules, the applicant will be assessed a penalty. The penalty for violating a transaction during the lookback period is ineligibility for a certain period of time. To calculate the length of the penalty, the government will divide the amount of the transaction in violation by the average monthly or daily private care costs in a nursing home. For example, if an individual gifts $40,000 in a violating transaction during the lookback period and the state’s monthly private care cost for nursing home care is $4,000, then the individual will be assessed a penalty of 10 months of ineligibility. Here, the individual would be assessed a penalty of 10 months to begin from when the individual became eligible for Medicaid.

Given the harsh penalties for violating transactions during the Medicaid lookback period, having proper legal representation can help to ensure that your planning complies with all state and federal law.

Chip LoCoco

Attorney at Law

 


Tuesday, December 17, 2019

Why Shouldn't I use a form from the internet for my will?

In this computer age, when so many tasks are accomplished via the internet -- including banking, shopping, and important business communications -- it may seem logical to turn to the internet when creating a legal document such as a will . Certainly, there are several websites advertising how easy and inexpensive it is to do this. Nonetheless, most of us know that, while the internet can be a wonderful tool, it also contains a tremendous amount of erroneous, misleading, and even dangerous information.

In most cases, as with so many do-it-yourself projects, creating a will most often ends up being a more efficient, less expensive process if you engage the services of a qualified attorney.  Just as most of us are not equipped to do our own plumbing repairs or automotive repairs, most of us do not have the background or experience to create our own legal documents, even with the help of written directions.

Situations that Require an Attorney for Will Creation

Although the use of an attorney for will writing should almost alway be the decision a person should make, in certain cases, the need for an estate planning attorney is inarguable. These include situations in which:

  • Your estate is large enough to make estate planning guidance necessary
  • Minor children or children with special needs and the necessity of a Trust
  • Usufruct and the creation of the rules for the usufructuary
  • You have concerns that someone may contest your will
  • You worry that someone will claim your mind wasn't sound at the signing

Mistakes and Omissions 

It has always been possible to write a will all by yourself, even before the advent of the typewriter, let alone the computer.  In Louisiana, a handwritten will is called an Olographic will. The only requirements for this type of will is that the document needs to be in the handwriting of the testator, dated and signed. Such a document, however, is unlikely to deal with the complexities of modern life.  Many estate planning attorneys have seen, and often been asked to repair, wills that have mistakes or significant omissions. These experts have also become aware of situations in which the survivors of the deceased wind up in court, spending thousands of dollars to contest ambiguously worded or incomplete wills. Without legal guidance from a competent estate planning attorney, creating a "boxtop" will can result in tremendous financial and emotional risk.

Evidence that Online Wills Are Not Foolproof

Evidence that many other complications can arise when an individual creates a will using generalized online directions can be found in the following facts: 

  • Louisiana has its own rules 
  • Forced Heirship needs to be considered
  • Even uncontested wills can remain in probate if not executed in an exacting fashion
  • Estate planning attorneys find legal software programs inadequate
  • Even legal websites themselves recommend bringing in an attorney in all but the very simplest cases
  • Some legal websites provide inexpensive monthly legal consultations with attorneys to protect their client and themselves

Areas that Frequently Cause Problems 

Self-constructed wills often become problematic when the testator:

  • Names an executor who has no financial or legal knowledge
  • Leaves a bequest to a pet  (legally, you must leave the bequest to an appointed caretaker)
  • Puts conditions on payouts to an that are difficult, or impossible, to enforce
  • Makes unusual end-of-life decisions or puts living will information into the will
  • Designates Tutors for children, but neglects to name successor guardians
  • Neglects to coordinate beneficiary designations where, for example, the will and insurance policy designations contradict one another
  • Leaves funeral instructions into the will since the document will most likely not be read until after the funeral has taken place
  • Leaves inexact or ambiguous instructions dealing with blended families
  • Neglects to mention small items in the will which, though of small financial value, are meaningful to loved ones and may cause contention

In order to ensure that you leave your assets in the hands of those you wish, and to avoid leaving your loved ones with bitter disputes and expensive probate costs, it  is always wise to consult with an experienced estate planning attorney when making a will.  In this area, as in so many others, it is best, and safest, to make use of those with expertise in the field.

Chip LoCoco 

Attorney at Law

(504) 483-2332


Thursday, October 31, 2019

Why you should give your Spouse a Power of Attorney.

Married couples will often have legal estate documents prepared together.  Such documents may include a will, leaving all property to the surviving spouse and/or the couple’s children, and a living will to direct the spouse how to handle medical issues if one spouse becomes incapacitated.  However, another estate document may be beneficial for spouses -- a durable power of attorney.  

What is a durable power of attorney?

A durable power of attorney (POA) is a power of attorney given by one spouse to the other and allows the other spouse to handle certain business or monetary activities and/or medical decisions as detailed in the agreement. 

 

While Louisiana law grants spouses certain rights to act for the other spouse, some activities may or may not be covered.  A power of attorney ensures that the other spouse can act without question for the granting spouse. And please keep in mind, that a substitute agent should be named to take over from the other spouse would they become incapacitated or die.

Some examples of business decisions in real estate matters where the well spouse is not a co-owner (perhaps because the real estate was a premarital asset or for other tax reasons) and can act for the incapacitated spouse are:

  • The other spouse can collect rent
  • To pay real estate taxes for properties that may not in both spouses ownership
  • To handle issues related to any mortgages
  • To take out property insurance

Some other general business related functions a durable power of attorney can include: 

  • To sue on the collect of a debt
  • To file for bankruptcy
  • To write checks and do banking transactions
  • To sell stock or other securities
  • To file tax returns
  • To manage retirement accounts
  • To borrow money
  • To make loans
  • To make charitable donations
  • To hire attorneys, accountants or other professionals

The medical power would allow the other spouse to speak to doctors, receive and review medical records, and make medical decisions, which work in conjunction with the Living Will.

Durable means that the Power of Attorney will survive any incapacity of the granting spouse and will continue in full force and effect until death or revocation by that spouse.

So in closing, this is a very brief overview of the importance of a Durable Power of Attorney and the importance to have one even if you are naming the other spouse as the agent. I hear that a lot from people. I don't need a power of attorney - my spouse can act. As we have seen, such a thought means you are relying on all of the laws of Louisiana to determine if the spouse indeed has the right to act. A durable power of attorney signed by the spouse before any disability that would effect their competency, and duly notarized and witnessed for validity) can come in handy in a family emergency and is a smart thing to do.

Chip LoCoco

Attorney at Law

 


Thursday, August 15, 2019

A Living Will or Health Care Power of Attorney? Or Do I Need Both?

Many people are confused by these two important estate planning documents. It’s important to understand the functions of each and ensure you are fully protected by incorporating both of these documents into your overall estate plan.

A “living will,” often called an advance health care directive, is a legal document setting forth your wishes for end-of-life medical care, in the event you are unable to communicate your wishes yourself. The safest way to ensure that your own wishes will determine your future medical care is to execute an advance directive stating what your wishes are. In some states, the advance directive is only operative if you are diagnosed with a terminal condition and life-sustaining treatment merely artificially prolongs the process of dying, or if you are in a persistent vegetative state with no hope of recovery.

A durable power of attorney for health care, also referred to as a healthcare proxy, is a document in which you name another person to serve as your health care agent. This person is authorized to speak on your behalf in order to consent to – or refuse – medical treatment if your doctor determines that you are unable to make those decisions for yourself. A durable power of attorney for health care can be operative at any time you designate, not just when your condition is terminal.

For maximum protection, it is strongly recommended that you have both a living will and a durable power of attorney for health care. The power of attorney affords you flexibility, with an agent who can express your wishes and respond accordingly to any changes in your medical condition. Your agent should base his or her decisions on any written wishes you have provided, as well as familiarity with you. The advance directive is necessary to guide health care providers in the event your agent is unavailable. If your agent’s decisions are ever challenged, the advance directive can also serve as evidence that your agent is acting in good faith and in accordance with your wishes.  

Chip LoCoco

Attorney at Law

504-483-2332


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The Attorneys of Many & LoCoco assist clients throughout parts of Southern Louisiana, including but not limited to New Orleans, Metairie, Mandeville, Convington, Gretna, Arabi, Marrero, Westwego, Harvey, Chalmette, Kenner, and the Parishes of Orleans, Jefferson, St. Tammany, and St. Bernard, LA.



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