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  • Planning for Your Aging Parents

    America is getting older. The overall age of the population of the United States has shifted dramatically over the last 60 to 80 years, and experts agree that its impact on the family is clear.

    The overall age of the population of the United States has shifted dramatically over the last 60 to 80 years, and experts agree that its impact on the family is clear.

    The overall age of the population of the United States has shifted dramatically over the last 60 to 80 years, and experts agree that its impact on the family is clear.

    “There is definitely a changing age structure within families today,” says Neal Cutler, PhD. He is the executive director of the Center on Aging for the Motion Picture and Television Fund in Woodlawn Hills, Calif. “Its cause is simply greater longevity.”

    With more Americans living well beyond their 70s, more adult children are now left in a position where they must take on the role of caregiver for their aging parents.  And though being a caregiver is something that sounds relatively straightforward, it actually involves a host of issues that requires a mix of legal, financial and governmental resources. 

    From a legal perspective, there are certain documents you need to have in place in order to be able to care for your aging parents, and studies have found that nearly half of the adult population in the United States does not have them.  The legal documents you will need to have in order to become involved in the day to day affairs of your parent’s lives include the following:

    FINANCIAL POWER OF ATTORNEY

    A power of attorney (or POA) is a legal document through which an individual authorizes someone to act on his behalf. The person who gives the authority (your parent) is called the principal, and the person who has the authority to act for the principal (you) is called the agent or the attorney-in-fact. Financial power of attorney grants you the legal authority to act on your parents’ behalf for financial issues such as accessing financial accounts, paying bills, taxes, medical expenses, managing real estate assets and more should they become incapacitated and unable to carry out those tasks themselves.

    Generally, the timing of when the POA becomes effective is dependent upon future the occurrence of a certain event.  The most common future event is the incapacity of the principal which could be due health issues leaving them unable to make necessary and important life decisions. It is a good idea to become familiar with your parents’ affairs before the POA becomes effective.

    HEALTHCARE POWER OF ATTORNEY

    A healthcare power of attorney allows one or both of your parents to grant you the authority to make medical and end-of-life care decisions on their behalf. It allows them to name a trusted person (you) to oversee that their wishes are carried out, or to use your judgment in directing decisions about their medical care. In addition to granting you power of attorney, they should name a successor, such as your sibling or other close relative or friend, in case you become unable to fulfill the duties. 

    LIVING WILL

    A living will is a type of estate plan that allows your parents to express their medical and end-of-life treatment decisions, in order to provide family members and health care personnel with clear medical care instructions. In general, if a living will meets legal requirements, then the instructions it provides are legally valid and binding. It does not appoint anyone to make decisions for your parents and only applies if they are in a terminal or permanent unconscious condition.

    One of the biggest benefits of the living will is that it helps avoid unwanted treatments and disputes between family members over your parents’ care.  It will allow your parents to name a trusted person (you) to ensure that their end-of-life wishes are carried out should they not be in the position to make that clear for themselves.

    HIPAA CONSENT FORM

    HIPAA — the Health Information Portability and Accountability Act — provided the first nationally recognizable regulations for the use and/or disclosure of an individual’s health information. It is the federal legislation responsible for keeping personal health information private.

    If your parents want you to be privy to information about their healthcare, they must sign a HIPAA document that grants their health care provider permission to share it with you.  At that point, you will have the right to request and obtain your parents’ health information when necessary.

    Of course, none of these forms will be helpful unless someone knows they exist! You should have the originals, and your parents’ regular doctors should be provided with copies to keep in the medical records files. If your parent is planning to enter the hospital, you will probably be asked prior to admission to provide the hospital with copies of these documents. 

    When it comes to making arrangements for your aging parents, most experts would advise you not to wait until it may be too late to engage in proper legal planning. We encourage you to make a point of having these conversations with family members while they are still of sound mind and able to contribute to the conversation and comprehend exactly what documents they are signing and why. These discussions can be difficult, but an experienced elder law attorney can help guide the process and ensure that it goes smoothly. At Oliver and Cheek, we can help you outline exactly what is needed as you and your family plan for the future care of your aging parents.  If you’re ready to start the planning process, or if you have any questions, please contact the law offices of Oliver & Cheek by calling (252) 633-1930 or visiting www.olivercheek.com.

    (sources: www.nbc.com, www.findlaw.com, www.agingcare.com)

    Oliver Cheek New Bern NC can help you with planning for aging parents. Elder law.
  • Sears Files for Chapter 11 Bankruptcy

    Former retail giant Sears filed for chapter 11 bankruptcy on Monday of this week. They have a plan in place for how to revive the company, that includes closing at least 142 stores, and are seeking creditors to keep them afloat instead of having to liquidate the company. The law offices of Oliver & Cheek are well versed in the ins and outs of business law, and are here to help your large or small business through any situations. Today we are digging into different versions of bankruptcy and how Sears’ bankruptcy filing choice can help you learn which is best for your business when facing a financial struggle.

    Filing for chapter 11 bankruptcy is used by large businesses to reorganize debts and continue operations. Corporations, partnerships, and LLCs are not allowed to file for relief under Chapter 13, thus Chapter 11 would be the only option for these entities if reorganization is needed. If a company files for relief under Chapter 7 it must end operations upon the filing of the case. In North Carolina the bankruptcy administrator supervises the case. A Chapter 11 plan is submitted to the court detailing the proposed treatment of secured and unsecured claims and a judge then approves or confirms the plan. The plan—which details creditors to be paid, how much they are paid, and how long the plan lasts—is then implemented. Usually plans for small businesses last three to five years. Sears chose chapter 11 because it allowed them the flexibility to reorganize, stay open through the holidays, and then continue in their reorganization strategy into the new year. For Sears and many other businesses this is a great choice, and can breathe new life into the company, eventually allowing it to completely revive itself. Where Ch 7 is final Ch 11 provides needed flexibility in keeping a business alive.

    Two other forms of bankruptcy are Ch 12 and Ch 13. Both are inherently different in their strategies as well.

    Ch 12  is used by farmers or commercial fishermen to reorganize their debts and continue operating their farms or fishing operations. The advantage of Chapter 12 is that the reorganization plan will allow payments to be made seasonally, when the farmer or fisherman earns his money. The limitation of only being able to restructure loans in a five-year period in Chapter 13 cases is not a limitation in Chapter 11 or Chapter 12 cases. A corporation, partnership, or LLC, along with individuals, are eligible for relief under Chapter 12 as family farmers or family fishermen.

    Ch 13 is a “reorganization” bankruptcy that allows a person to repay some or all debts. The amount paid to creditors is based on what you want to keep, what you earn, and how much non-exempt property you have. Those who choose this option are usually behind on their house and car payments, but desire to catch up on those payments to keep the property. This option does not necessarily mean all creditors will be paid in full—it is a way to repay taxes to the IRS or North Carolina Department of Revenue as there are no penalties when you pay through a Chapter 13 plan.

    All of us here at the law offices of Oliver & Cheek understand that no one option will be entirely perfect for your business. For many filing for bankruptcy is the last resort, we are here to help guide you through the process, helping you pick the best strategy and ultimately trying to save your business. For more information feel free to contact us today!

    At Oliver & Cheek business law is one of our specialties and we are here to help you through all of your business needs, organization and beyond. For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

    filing for bankruptcy, business law, oliver and cheek, new bern nc lawyers,
  • Choosing between a Living Trust or Will

    Estate Planning, the task of preparing for the future of your family once you are no longer around. It can be a daunting task as no one wants to think about what will happen after they pass. However it is extremely important to ensuring your family is provided for during that time. Estate planning can include writing a will as well as establishing a living trust. All of us here at Oliver and Cheek are ready to help you decide which estate planning tool meets the needs of you and your family.

    A will is an end of life document that designates how property and assets will be distributed at the time of your death. The benefit is that a will can be amended, updated, and rewritten at any point during your lifetime. It will also allow you to provide a guardian to your children if need be. The downfall of this document is that it must go through a probate court and be settled by an executor. This can be a lengthy and expensive step depending on the intricacies of your document. Proper planning at the beginning will save your loved ones from a long probate process in the future.

    If the potential of a probate court process is not something you or your family are interested in, thinking about planning your estate with a Trust may be the better option. A trust still allows you to still transfer property and assets to your loved ones after death, yet it avoids probate court or the need for an executor of a will. It can still be amended throughout your lifetime, and when the time comes a named trustee will ensure that property and assets are divided as stated.

    Regardless of which you choose both are great options for planning your estate during your lifetime as well as taking care of your loved ones after you’re gone. To learn more about which tool may be right for you call us at Oliver and Cheek to schedule an appointment.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (sources: Investopedia, Legal Zoom)
    filing for bankruptcy, business law, oliver and cheek, new bern nc lawyers,
  • Why Different Corporate Structures Matter

    When starting a business or considering reorganization one of the biggest questions to ask is: What Corporate Structure is right for me? Knowing the difference between the ways your business can be structured is integral in making that decision. In many cases this comes down to understanding how each structure is taxed by the government. Two popular choices are either to organize as a Limited Liability Company (LLC) or as a Corporation, but what’s the difference?

     

    Organizing as a Corporation

    Within a Corporation the most common forms of organization are either a S corporation or a C corporation. What these versions have in common is that a corporation is autonomous from the owners. As in it can act on its own in buying or selling property, legal matters such as suing or being sued as well as ownership can change by buying or selling stocks.

    S Corporations are better for those who offer a public service as it offers the same protection and structure of a corporation yet has the same tax benefits as a LLC. The business pays no tax on the corporate level, however individuals and owners pay taxes on profits.

    C Corporations are taxed directly by the government as well as owners pay taxes on profits made. Owners of the C corp still receive limited liability protection that protects personal assets separate from the business. A benefit of organizing as a C corp is that payroll and benefits among other things can be deducted from taxes.

    Organizing as a LLC

    Unlike a corporation, LLC’s don’t offer shares in their business. If an LLC has multiple owners they all share a percentage of the business. They also have the benefit of being flexible in how they are taxed while offering the most levels of protection between business and private assets. The LLC is either taxed through the individual profits that the owner or owners make, or as either a S or C corporation.

    In the end it comes down to what makes the most sense for your business. With any   of the models you choose comes a variety of pros and cons. We here at Oliver & Cheek understand how to help you make the right choice and minimize the cons.

    At Oliver & Cheek business law is one of our specialties and we are here to help you through all of your business needs, organization and beyond. For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

     

    (Sources: Corporate Direct, Business News Daily)

    business structures, LLC, Corporation, Oliver and Cheek Attorneys, New Bern NC,
  • Elder Abuse: Know the Signs and Speak Up


    The National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    Late last year, members of Congress came together in bipartisan agreement to pass a law supported by the American Bar Association (ABA) that would enhance the federal government’s response to elder abuse and financial exploitation of seniors.

    Signed by President Donald Trump, the Elder Abuse Prevention and Prosecution Act of 2017 was passed by voice vote in the House and Senate. Both bodies were informed of alarming statistics on elder fraud and abuse—this prompted overwhelming support for the legislation.

    Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) commented, “Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are.” He sponsored the legislation with Sen. Richard Blumenthal (D-Conn) and 14 other co-sponsors.

    This legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be a top priority for law enforcement,” Grassley added.

    What is Elder Abuse?

    Elder abuse takes many forms: Physical abuse, neglect, financial exploitation, sexual abuse, and emotional or psychological abuse. Research estimates that only one in 14 cases of abuse is reported to authorities. Despite the underreporting of cases, the National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    “Elder abuse…is a problem that respects no boundaries,” Thomas M. Susman, director of the ABA Governmental Affairs Office, told Congress. “It’s not defined by socio-economic, racial, or ethnic status, and it occurs with alarming frequency in your states as well as all others.”

    What is Elder Law?

    Elder law is a relatively new concept due to the extended life spans of many Americans. This branch of law serves the needs of the elderly and their families. Why is it so important? Research shows the country’s fastest-growing demographic segment is people 85 and older, and the U.S. Census Bureau predicts people 65 and older will make up approximately 20% of the population by 2030.

    Quite an impressive range of issues are covered by elder law, both legal and financial, and include: Conservatorships, power of attorney, abuse, guardianship, probate and estate administration, estate planning, and end-of-life care.

    North Carolina law protects disabled adults of any age from abuse, neglect, and exploitation. The law states that “any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information.” Definitions are:

    Abuse: Willful infliction of physical pain, injury, or mental anguish, unreasonable confinement, or the willful deprivation by a caretaker of services necessary to maintain mental and physical health.

    Neglect: A disabled adult who is either living alone and not able to provide for himself the services necessary to maintain his mental or physical health or is not receiving services from his caretaker.

    Exploitation: Illegal or improper use of a disabled adult or his resources for another’s profit or advantage.

    North Carolina law now offers extra protections to combat financial exploitation of adults 65 and older and disabled adults. Under the law, customers of financial institutions can submit a list of people to contact if the institution suspects the customer is a victim or target of financial exploitation. The institution is also required to report any suspected exploitation to local law enforcement. If the suspected victim is a disabled adult, the financial institution is required to report to the contact list, local law enforcement, and the county Department of Social Services.

    Warning Signs of Elder Abuse

    Authors Lawrence Robinson, Joanna Saisan, MSW, and Jeanne Segal, Ph.D. recently provided Helpguide.org an amazing amount of information concerning this topic. They say signs of elder abuse can be difficult to recognize or mistaken for symptoms of dementia or the elderly person’s frailty—or caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so.

    Frequent arguments or tension between the caregiver and the elderly person or changes in the personality or behavior in the elder can be broad signals of elder abuse. If you suspect abuse, but aren’t sure, you can look for clusters of the following warning signs.

    Physical abuse warning signs:

    • Unexplained signs of injury, such as bruises, welts, or scars, especially if they appear symmetrically on two sides of the body.
    • Broken bones, sprains, or dislocations.
    • Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should).
    • Broken eyeglasses or frames.
    • Signs of being restrained, such as rope marks on wrists.
    • Caregiver’s refusal to allow you to see the elder alone.

     

    Emotional abuse warning signs:

    • Threatening, belittling, or controlling caregiver behavior.
    • Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to themselves.

     

    Elder neglect or self-neglect warning signs:

    • Unusual weight loss, malnutrition, dehydration.
    • Untreated physical problems, such as bed sores.
    • Unsanitary living conditions: Dirt, bugs, soiled bedding, and clothes.
    • Being left dirty or unbathed.
    • Unsuitable clothing or covering for the weather.
    • Unsafe living conditions (no heat or running water; faulty electrical wiring or other fire hazards).
    • Desertion of the elder at a public place.

     

    Financial exploitation warning signs:

    • Significant withdrawals from the elder’s accounts.
    • Sudden changes in the elder’s financial condition.
    • Items or cash missing from the senior’s household.
    • Suspicious changes in wills, power of attorney, titles, and policies.
    • Addition of names to the senior’s signature card.
    • Financial activity the senior couldn’t have done, such as an ATM withdrawal when the account holder is bedridden.
    • Unnecessary services, goods, or subscriptions.

    (more…)

    Elder Abuse, Know the signs, Elder Law, Family law, Estate Law, Law Firm of Oliver and Cheek, Oliver and Cheek attorneys, New Bern NC

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